Tetrad Holdings Limited v Leo Mataruka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/67/2014
HARARE, 15 OCTOBER 2013 &
CASE NO LC/H/318/2013
14 FEBRUARY 2014
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/67/2014

HARARE, 15 OCTOBER 2013 &		     CASE NO LC/H/318/2013

14 FEBRUARY 2014

In the matter between:-

TETRAD HOLDINGS LIMITED					APPELLANT

Versus

LEO MATARUKA							RESPONDENT

Before The Honourable L Kudya :   Judge

For the Appellant		A T Muza (Legal Practitioner)

For the Respondent		C Warara (Legal Practitioner)

KUDYA J:

This is an appeal against an arbitral award which was made in favour of the respondent employee, against the appellant company.

Facts of the case are that the respondent lost his job in circumstances where the employer says he resigned. He say he was forced out of his job by the employer. Some allegations of sexual harassment were levelled against the respondent. The appellant’s senior management called him to a meeting where the option of exiting the job through resignation was discussed as a noble option with the least embarrassment.

The appellant says, the respondent in that meeting resigned verbally and promised to put the resignation in writing at a later stage. The respondent says that the resignation option was the employer representative’s brainchild but he left before committing himself to it. On advice from his lawyers he indicated on the following day that he was not resigning as suggested by the management team. When he attempted to report for duty he was advised that he had lost his job as according to the appellant he had resigned verbally. Aggrieved by his loss of a job the respondent took his matter up and ended up at arbitration. At arbitration only two issues were at stake that is whether the respondent was unfairly dismissed and if so what was the remedy?

The arbitrator ruled that based on the evidence presented before him, he was satisfied that the respondent had been unfairly dismissed and thus entitled to reinstatement or at least to damages in place of the reinstatement. This decision did not go down well with the appellant which then filed the appeal which is the subject of this judgment.

The grounds of appeal are:

The arbitrator erred grossly at law to conclude that the respondent had not resigned because there was no resignation in writing. An oral resignation was still a valid resignation at law.

The arbitrator misdirected himself by concluding that the absence of the minutes of the meeting to confirm resignation meant that the respondent had not resigned yet oral evidence had been led from the managers who interviewed the respondent on the issue. That evidence sufficed to found that the respondent had resigned.

The arbitrator erred at law to quantify damages without giving the appellant employer an opportunity in terms of section 89 (2) of the Act to make representations as to whether the employment relationship was no longer tenable.

The arbitrator erred by quantifying and awarding damages to the respondent without calling for evidence and representations from the affected parties. Resultantly he unilaterally awarded twenty-four month damages without any justification or clear determination on how soon the employee could secure alternative employment.

In response, the respondent maintained that:

An oral resignation is indeed valid at law but if the facts of the case at hand were to be read in the light of the case of Murire v NSSA SC-75-98 which stipulates that one resigns in terms of his contract of employment, in instant case resignation must have been in writing per the respondent’s contract terms.

Meeting took place but on evidence tendered the arbitrator found it most probable that the respondent had not resigned. His reasoning could not be faulted as the oral evidence was not supported by a written record of the meeting.

Arbitral award indicated that the respondent be reinstated alternatively that damages be paid in place of reinstatement. It was therefore up to the appellant whether to reinstate or pay the damages and that election is done at the appellant’s discretion.

Arbitrator took into account factors which affected the respondent. All the monetary details which were before him were not disputed by the appellant hence arbitrator arrived at the correct quantification.

At the outset of the hearing the appellant took issue with what it termed new issues raised in the respondent’s heads of argument. However, there was no elaboration of what these were.

In the result the court was satisfied that such an objection was not backed by evidence and it could therefore not stand. Further to that during the oral submissions the appellant also objected to the respondent’s reference to issues pertaining to the letter which was written by the respondent’s lawyer after the meeting.

The objection was sustained by the court and it indicated that the reasons for sustaining the objection would follow in the main judgment and the reasons appear hereunder.

The letter which the respondent intended to make extensive reference to was not discussed by the arbitrator. To that extent it would be unfair to argue at length based on it as it was not the rationale behind the arbitrators final decision.

Having concluded on the above preliminary points, it is necessary to now deal with each of the grounds of appeal in turn.

Ground One

In respect of this ground, the law is clear as stated by the appellant and confirmed by the respondent that an oral resignation is valid at law. However, the facts of the instant case show that, the arbitrator did not rule for the respondent on the basis that because there was no written resignation then the respondent then did not resign. All he indicated was that the legal position notwithstanding, based on facts of case before him, it was not clear whether the respondent had resigned or not.

This was so especially noting that the idea was introduced by the managers who met with him and that he in turn did not reduce anything to writing viz the alleged resignation. The court does not find anything grossly irregular about the arbitral reasoning in that respect. This ground lacking in merit should fail.

Ground Two

This ground is intricately linked with ground one. All that arbitrator indicated was that indeed the managers had given evidence orally that the respondent resigned but apart from their say so which was disputed by the respondent there was nothing else which could convince him that indeed the respondent resigned.

It was thus his view that if there had been some documentary evidence it could have bolstered the managers’ evidence. On that basis he concluded that it was more probable that the respondent had not resigned. Such reasoning by the arbitrator cannot be open to attack and does not satisfy the gross unreasonableness test to hold it to be a proper appeal ground. This ground also lacking in merit should fail.

Ground Three

As indicated correctly by the respondent, an employer has the election to reinstate or pay damages. The court does not see how it can be said that, the appellant was denied the chance to indicate whether relationship with the respondent could be restored or not. It is the court’s view that a reinstatement with an award of damages as an alternate option was therefore well placed. This ground also lacking in merit should fail.

Ground Four

Whilst the figures which the respondent claimed were not controverted in the main by the appellant, the court agrees with the appellant that arbitrator jumped the gun by plucking an award of damages from the air without proper and full evidence and justification of same from the parties. It is therefore the court’s considered view that the arbitrator has to engage in the same process with both parties giving him full evidence on the issue. This ground being with merit should succeed.

IT IS ORDERED THAT

Grounds one to three of the appeal being without merit, they be and are hereby dismissed.

Ground Four being with merit, it be and is hereby upheld.

The arbitrator is to reconvene and engage in a proper quantification exercise with the parties before a final order is made in that respect.

This should be done within three months from the date of receipt of this judgment by both parties failing which the respondent shall be deemed to be reinstated on the terms contained in the arbitral award.

Each party to bear own costs.

Mawere & Sibanda, appellant’s legal practitioners

Warara & Associates, respondent’s legal practitioners