Thulani Dube v Zimbabwe Safes

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/834/2014
HARARE, 16 OCTOBER 2014
CASE NO. LC/H/834/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/834/2014

HARARE, 16 OCTOBER 2014	    		            CASE NO. LC/H/171A/14

AND 19 DECEMBER 2014

In the matter between:-

THULANI DUBE						Appellant

And

ZIMBABWE SAFES					Respondent

Before Honourable E Muchawa, Judge

For Appellant		B. Makururu (Legal Practitioner)

For Respondent		R.F. Mushoriwa (Legal Practitioner)

MUCHAWA, J:

Before me is an appeal against an arbitral award which found that appellant was not constructively dismissed but resigned.  It ordered that terminal benefits be paid.

Appellant is a former employee of the respondent.  He was employed in 2002 as a painter based in Harare falling under the Engineering Industry.

It seems that on 12 September 2012, appellant was transferred to respondent’s mine based in Zhombe to work as a general hand as the Harare operation was no longer sustainable.  He would therefore be working in the Mining Industry.

Whereas respondent alleges that appellant’s salary and benefits would be maintained at the same level, appellant alleges that his grade had been lowered therefore he was being demoted.

Appellant claimed that the transfer was unilateral whereas respondent alleges that it was by mutual agreement and that there was a wholesale movement of employees from Harare to Zhombe.

Other allegations by appellant were that he had not received a pay increase since 2010, had not been paid overtime and not been supplied with protective clothing.

On the 12th November 2012, appellant tendered a letter of resignation alleging that his continued employment had been made intolerable.

The grounds of appeal are stated as follows;

The honourable arbitrator erred in failing to note transfer of the transfer of the appellant (sic) amounted to constructive dismissal on the basis that the transfer was unilateral and that his conditions of service were made less favourable.

The honourable arbitrator also grossly erred in holding that the Appellant was obliged to exhaust the domestic remedies when there is no rule or law barring an aggrieved party from approaching a designated agent for the resolution of the grievance

The honourable arbitrator also grossly erred in failing to note that the appellant had proved constructive dismissal.

In my opinion Grounds 1 and 3 are related and I will deal with them as one issue.  The issues for my determination therefore relate to the two issues of;

Constructive dismissal.

Exhaustion of domestic remedies.

I address these below.

Constructive dismissal

The appellant argues that the arbitrator erred in arriving at the decision that the non payment of salaries, demotion and unilateral transfer did not in any way prove that appellant’s employment was made intolerable so as to amount to constructive dismissal.

Appellant relies on section 12B (3) (a) of the Labour Act.  This provides as follows;

“(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.”

I was also referred to the case of Astra Holdings v Peggy Kahwa SC-97-04 which cites the case of Western Executing v Sharp [1978] 1 ALL ER 713 with approval.  At pages 717 d-f it states;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instant without giving any notice at all, or alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains of, if he continues for any length of time without leaving, he will loss his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

Appellant avers that a unilateral variation of the contract goes to the root of the contract and claims the transfer was unilateral.  (See Muchakata v Netherburn Mine 1996 (1) ZLR 53 (5)

The non payment of salaries is said to amount to a material breach of the contract.

Appellant therefore claims that he discharged the onus of proving that he was constructively dismissed.

Respondent is agreed on the essential elements to be proved in a case of constructive dismissal.  It is further stated that in a claim for such constructive dismissal, the onus of proof is on the employee on all issues.  (See Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd (2010) 31 ILJ 204 (CCMA).

Respondent’s case is that though appellant resigned, he has not proved that the reason for the resignation was that continued employment became intolerable and that it was the employer’s conduct that created the intolerable circumstances.

It is a fact that remains incontrovertible that indeed there was a wholesale movement of staff from respondent’s Harare operations to the Zhombe Mine due to the unsustainability of the Harare operations.

The record does not show that appellant protested his transfer at any time.  In fact he worked at the new station in Zhombe for 36 days before resigning.  Even though there is no written proof of any consultations before the transfer, the conduct of the parties in the light of the circumstances, does not point to a unilateral transfer.

The law is clear that the employer has a right to transfer an employee and deploy him within the operational requirements of the business.  This is because it is the employer who knows best where the services of an employee are best required.  (See Ngema Chule v Minister of Justice: Kwazulu & Anor 1992 (4) SA 394.

I find therefore that appellant actually acquiesced to the transfer and created the impression that he had voluntarily accepted the transfer.

I agree with respondent too that appellant failed to show that respondent deliberately made his continued employment impossible.  I find that respondent has advanced a reasonable and proper cause for the transfer due to operational reasons.  (See Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) at 985.

Appellant alleges demotion whilst respondent claims that appellant would still enjoy the same salary and benefits and was tasked with substantially the same duties regardless of any alleged change in title or grade.  Appellant claims that by moving from the Engineering Iron and Steel Sector as a grade B4 employee to a Grade A1 in the Mining Sector, he would be demoted.

I do not know the basis for alleging the salary would be less as appellant claims that he did not receive salaries for September and October 2012 when he was in the new job.

Appellant therefore merely seems to rely on the change of title and grade to point to a demotion.  I do not think that is sustainable especially in the light of the change in industry.  Further, in the case of Colcom Foods Ltd v Kabasa SC 12/04 the removal of Kabasa as director whilst he retained his status of employee as human resources manager on the same salary and benefits was not seen as a demotion.

In the case of Mutare Board and Paper Mills v Mutsaka SC 2/05 the point is made that demotion is degrading one to an inferior capacity, thereby changing his status and a different perception by his workmates.  No evidence seems to have been led to point to such existence of a demotion except for the change in title and grade.

Another point against appellant, is that he did not leave at once.  He did not make up this mind soon after the conduct complained of.  He continued for more than a month; for a good 36 days.  In this he lost his right to treat himself as discharged and is taken to having elected to affirm the contract (Astra Holdings v Peggy Kahwa SC 97/04).  Appellant should either immediately leave or give his notice to leave in terms of section 12B (3) (a) of the Labour Act.

In my opinion, appellant has not shown sufficient grounds to found constructive dismissal.  He has merely shown that he was unhappy at some stage with his transfer.  I note too that even an allegation of physical assault remained unsubstantiated as no particular natural person was alleged to have perpetrated it nor was any other evidence adduced.

The grounds of appeal 1 and 3 are consequently dismissed.

Exhaustion of Local Remedies

In the light of finding that appellant was not constructively dismissed, the arbitrator proceeded to find that appellant should have exhausted the internal grievance procedure before resigning in order to resolve the grievances he had.

There is no basis on which I can depart from this conclusion too.  Appellant has not shown good reasons why he chose to resign (having failed to found a case for constructive dismissal) and why he did not utilize the internal grievance system.

On this basis, I dismiss ground of appeal 2.

Accordingly the appeal is dismissed with costs for lack of merit.

MUSONI MASASIRE LAW CHAMBERS, Appellant’s legal practitioners

MAWERE AND SIBANDA, Respondent’s legal practitioners