Rockfeller Mahembe v Fawcett Security Operations (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/649/2016
HARARE 13 JUNE 2016
CASE NO. LC/H/1086/15
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/649/2016

HARARE 13 JUNE 2016				       CASE NO. LC/H/1086/15

AND 21 OCTOBER 2016

ROCKFELLER MAHEMBE							Appellant

FAWCETT SECURITY OPERATIONS					Respondent

(PRIVATE) LIMITED

Before The Honourable G. Musariri, Judge:

For Appellant		Mr R. Mahembe, Appellant

For Respondent		Mr N. Xaba, Manager

MUSARIRI, J:

On 9th November 2015 at Harare, Arbitrator L. Sigauke issued an arbitration award.  He dismissed Appellant’s claim of constructive dismissal from employment by Respondent.  Appellant then appealed to this Court.  Respondent opposed the appeal.

The grounds of appeal, done by Appellant himself, are rather prolix.  However the pith of the matter is captured in paragraph 4 as follows,

“4.	The Honourable Arbitrator also misdirected herself on a point of law when she assumed that the appellant’s termination of employment was premature because I had not exhausted all internal remedies when in fact I had gone through all internal remedies but to avail (see appeal hearing submission on record).  She fail to realise that the sole reason which led to termination was in the matter of theft of uniform which the respondent refused to investigate even after it was reported but chose to make it a disciplinary case to the victim.  This alone can force an employee to terminate employment unwilfully (see memo to T. Chahwanda and S. Makaripe and the notice to attend a hearing.  Check the dates).  This memo and notice for the hearing can show an adjudicator that such employer action can force any employee to terminate employment …”

Appellant relied on the provisions of section 12 B (3) (a) of the Labour Act Chapter 28:01 (hereafter called the Act) which provides that,

“An employee is deemed to have been unfairly dismissed – (a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;”

The underlining is for emphasis.

Appellant was charged and convicted of misconduct.  The penalty was a final warning.  He appealed the verdict.

By letter dated 27 January 2014 Respondent dismissed Appellant’s appeal. On the same day Respondent did a memo in terms of which Appellant was transferred from the Control Room “to any security guard duties”. On 29th January 2014 Appellant tendered his resignation letter.  Therein he indicated that he was resigning with immediate effect due to “conditions being put to me …” It is clear he was alleging intolerable working conditions due to the transfer.

On these facts the Arbitrator found as follows,

“On this note I concur with the claimant that an element of trying to frustrate him was present.  The tribunal however observes that the claimant prematurely terminated his contract of employment before exhausting internal remedies pertaining to the transfer which could be perceived as a demotion.”

The Arbitrator went on to rule that it could only be constructive dismissal if the causes could not be resolved by any other available means.  I agree with the Arbitrator.  Up until the transfer, the employer was engaged in a legitimate disciplinary exercise.  The transfer though appears to have been slapped on Appellant in an underhand manner.  However Appellant had a right to challenge it.  He could raise a complaint with either the employer or a labour officer.  He did not do so instead opting to resign within 3 days of the transfer and allege constructive

dismissal.  I consider that “continued employment” was possible whilst challenging the transfer.  He was not being asked to do anything particularly intolerable. In other words the matter could be resolved by means other than resignation.  Hence I agree with the Arbitrator that there was no constructive dismissal in the circumstances.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G.  MUSARIRI

J. U. D. G. E.