Yvonne Chikonzon v Straitia Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/212/2016
HARARE 17 MARCH 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/212/2016

HARARE 17 MARCH 2016				       CASE NO. LC/H/979/14

AND 8 APRIL 2016

YVONNE CHIKONZO							Appellant

STRAITIA INVESTMENTS						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Mr E. Maponga, Unionst

For Respondent		Ms F. Peswa, Attorney

MUSARIRI, J:

On 30th September 2014 at Harare Arbitrator M Mpango issued an arbitration award.  He dismissed Appellant’s complaint of unfair dismissal from employment by Respondent.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

Appellant’s case is aptly captured in her Heads of Argument thus,

“1.	The honourable Arbitrator erred in basing the fairness of the dismissal on the absence from work which inculminated from the transfer process that was irregular and marred with malice on the part of the Respondent.  It is on record that the Respondent had undertook not only to provide the two hundred dollars for relocation expenses, but to provide accommodation for three months, a settling in allowance and a two day familiarization trip among other undertakings.  This process was not done in good faith as Respondent failed to satisfy what it had offered to provide.  The familiarisation tour was never carried out but the Respondent expected Appellant to report for work at a place she had never been to before.

2.	The Appellant was never shown or communicated to in relation to the place that she was going to reside at.  In a letter dated 17 December 2012 the Respondent undertook to pay the Appellant’s accommodation fees for three months but this was never provided to the Appellant.  No communication about the place was ever brought to the Appellant’s attention.  This alone was a great hindrance to the Appellant’s smooth transfer from Harare to Bulawayo.”

Respondent’s heads countered as follows,

“5.	In the same letter dated 17 December 2012 the respondent gave the appellant another chance to transfer to Bulawayo by 7 January 2013 and advised her that they would meet her demands, in particular: accommodation for 3 months, a two day familiarisation trip to Bulawayo and Victoria Falls during the Appellant’s leave, the Respondent was to train the Appellant her new duties and settling in allowance was paid, that is, the relocation expenses of US $200,00 to cover settling in expenses.

6.	In fulfilling the above-mentioned the Respondent paid rentals for the house that Appellant was to occupy, it prepared to give appellant the training she required in her job and had already paid the settling in allowance.  It is relevant to note that the appellant was on leave from 17 December 2012 to 7 January 2013 the Respondent failed to get hold of her to go for the familiarisation trip to Victoria Falls.  On the other hand the Appellant never made any effort to contact the Respondent to facilitate the familiarisation trip, however this trip was no hindrance to reporting for duty as directed.  On 7 January 2013 the Appellant did not report for duty in Bulawayo as had been directed and neither did she report for duty at her old station.  By 16 January 2013 the Appellant had still not reported for duty at either the new or old station and no explanation was given to Respondent for failure to report for duty.”

The critical letter dated 17 December 2012 is filed of record.  It was written by Respondent and addressed to Appellant.  The relevant portion reads,

“We therefore write this letter to advise you of the employer’s decision in the circumstances to take this matter forward as follows:

…

You are required to report for duty at the Bulawayo branch on 27 January 2013.  You shall be servicing the Victoria Falls region.

The employer shall meet your accommodation needs for the first three months following your relocation to Victoria Falls i.e. until 31 March 2013 during which period you shall be looking for alternative accommodation of your own.  …

The employer shall also meet all your relocation expenses from Harare through Victoria Falls.

…

… It should be noted that the employer has already paid you $200 meant for relocation expenses and this amount is hereby converted to cover your settling in expenses and for any disturbance that you may suffer as a result of this transfer.”

On these facts Respondent found Appellant guilty of absence from work for five (5) or more days without leave or reasonable cause.  As a result they dismissed her from employment.  The  Arbitrator upheld the dismissal.  Was he correct in doing so?  An employer has the prerogative to transfer an employee but with prior consultation.  In this case the employee had accepted the transfer.  The employer is obliged to foot the employee’s costs of transfer.  In this case the employer paid the employee an amount of US $200.00.  The amount was converted to a settling-in allowance.  The employer did not then transport the employee and her belongings from Harare to Bulawayo.  Neither did they provide her with cash to facilitate her movement.  By what right then did they expect her to report for duty in Bulawayo?  I pressed Respondent to clarify their position on this point.  The answer I got was to the effect that Appellant should have used the $200.00 or her own cash to cover her travel expenses and then claim a refund.  With respect that amounts to putting the cart before the horse.  The cash was required in order to facilitate the travel.  In other words without the cash the employee could not travel.  In the circumstances I consider that Appellant had reasonable cause for her failure to report for duty in Bulawayo.  Accordingly the arbitration award cannot be sustained.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The arbitration award issued by Arbitrator M Mpango on the

30th September 2014 is set aside;

Respondent shall reinstate Appellant without loss of salary

and benefits; and

(b)	If reinstatement is untenable, Respondent shall pay Appellant damages for loss of employment in a sum either agreed by the parties or assessed by this Court.

G. MUSARIRI

J-U-D-G-E.