Thamsanqa Gwemende v Agricultural Development Bank of Zimbabwe t/a Agribank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/94/2016
HARARE, 9 FEBRUARY 2016 &
4 MARCH 2016
CASE NO LC/H/810/2012
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/94/2016

HARARE, 9 FEBRUARY 2016 &			                 CASE NO LC/H/810/2012

4 MARCH 2016

In the matter between

THAMSANQA GWEMENDE					     APPELLANT

Versus

AGRICULTURAL DEVELOPMENT BANK			    RESPONDENT

OF ZIMBABWE t/a AGRIBANK

Before the Honourable P Muzofa J

For the Appellant      G Mapaya (Legal Practitioner)

For the Respondent    J Dondo (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award made in the following terms:

“1.	The applicant (appellant herein) was not constructively dismissed as he voluntarily resigned.

2.	The applicant’s claim is therefore dismissed for lack of merit.”

The issue raised by the appellant that should be determined by this court is whether there was constructive dismissal in this case.

According to the appellant the respondent bank made continued employment intolerable. The appellant submitted the following circumstances as leading to his resignation:

Continued transfers:  Harare to Bindura in February 2005, Bindura to karoi in May 2005 and then from Karoi to Sanyati 2008 where from he resigned in 2010. He was not consulted at all when the transfers were effected.

He was acting Customer Services Officer for seventeen months. Despite possessing the requisite qualification he was not appointed to be the substantive Customer Services Officer. He had a legitimate expectation that he would be so appointed.

Other station heads in the province received fuel coupons, he was not given any.

Other staff members accessed loans but his application for a housing loan was declined.

The appellant claimed he raised a grievance in 2008 with the Chief Executive officer but nothing happened. On this note the respondent professed ignorance on the grievance raised and the document purportedly submitted to the respondent did not bear the respondent’s stamp of acknowledgment of receipt.

As a result of this the appellant submitted that the cumulative effect of the respondent’s conduct induced his resignation in January 2010. The resignation letter was not filed of record and the appellant did not have a copy. The parties seem to interchange the date of resignation. Some documents bear January 2011 and before this court both parties submitted that the appellant resigned in January 2010.

The respondent submitted that there was no constructive dismissal. The employer has the prerogative to transfer employees where the exigencies of the case require so. Further to that a promotion is not a right. The employer has the right to appoint a person and that the appellant did not resign immediately.

Constructive dismissal is a question of fact. The test applicable is objective having due regard to the circumstances giving rise to the resignation. Section 12B of the Labour Act [Chapter 28:01] “ the Act” deals with the issue on constructive dismissal and provides:

“ 3.	An employee is deemed to have been unfairly dismissed,

if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”

The onus is on the employee to prove that the employer made continued employment intolerable. Constructive dismissal is inferred where resignation is as a result of a material breach of the employment contract by the employer which amounts to a repudiation Astra Holdings (Pvt) Ltd v Kahwa SC 97-04.

The employee should resign immediately after the perpetration of the complained action or as soon as reasonably possible. Where an employee continues to work for some time he waives the right to rely on constructive dismissal. Western Excavating v Sharp 1978 (1) ALL ER 713.

In my view I do not think the appellant discharged the onus placed on him. The circumstances complained of took place in 2005 the other complaints do not have dates. He only resigned in 2010. He continued to work under those circumstances. He did not resign immediately. So the resignation could not have been induced by the respondent’s conduct in 2005. The appellant resigned almost five years later.

The respondent’s conduct even taken cumulatively cannot be said to be a breach of the contract of employment. As rightly submitted for the appellant the employer exercises its sole discretion in matters of transfer. An employee maybe consulted but the final decision lies with the employer. Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772. The promotion complained of is not a right. The appellant did not substantiate the basis of the legitimate expectation he believed he had.

Acting in a certain position and possession of the requisite qualifications does not give an employee a right to be appointed substantively in that position. There are other many considerations Mudarikwa & Another v Director of Housing & Community Services N O & Anor SC 56-06.

The other issues on fuel coupons and denial of a loan cannot amount to a repudiation of contract.

As stated before the appellant has failed to prove that there was constructive dismissal. The appeal therefore cannot succeed.

The appeal be and is hereby dismissed.

The appellant’s dismissal is hereby confirmed.

Mapaya & Partners, appellant s legal practitioners

Dondo & Partners, respondent’s legal practitioners