Zimbabwe Institute of Public Administration and Management (ZIPAM) v Prince Ngezi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/819/14
HELD AT HARARE ON 3rd SEPTEMBER, 2014
CASE NO. LC/H/999/13
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/819/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/819/14

HELD AT HARARE ON 3rd SEPTEMBER, 2014   CASE NO. LC/H/999/13

AND 19TH DECEMBER, 2014

In the matter between:-

ZIMBABWE INSTITUTE OF PUBLIC

ADMINISTRATION AND MANAGEMENT (ZIPAM)		Appellant

And

PRINCE NGEZI								Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. B. Chidziva (Legal Practitioner)

For Respondent: 	Mr. D. Mujaya ((Legal Practitioner)

MHURI J.:

Aggrieved by an arbitral award, Appellant filed a Notice of Appeal on the following three grounds:-

that the Arbitrator misdirected herself at law having concluded on the facts that Respondent failed to comply with Section 14(3) of the Labour Act [Chapter 28:01] when she disregarded the failure by Respondent to comply with the law.

that the Arbitrator misdirected herself on the facts, such misdirection amounting to a misdirection at law, in concluding that Respondent resigned because the employer had made continued employment intolerable.  This is so if regard is had to the fact that Respondent was demoted in November, 2011 but only resigned in April, 2012.

That the Arbitrator misdirected herself at law in failing to accept that by accepting terminal benefits Respondent accepted termination of his employment.

A brief summary of the background is that Respondent was in Appellant’s employ as from August, 2007 until April, 2012.  He was employed as a lecturer and rose through the ranks until he was appointed Director of training.  At the time of termination of his contract of employment he held the position of consultant which position was lower than that of Director of training.

In April, 2012, Respondent resigned from Appellant’s employment.  He then raised a complaint of constructive dismissal against respondent with the Ministry of Public Service, Labour and Social Welfare.

Conciliation failed and the issue was referred to compulsory arbitration whose award gave rise to this appeal.

This appeal is without any merit, I must say.  The law that provides for constructive dismissal in this jurisdiction is Section 12B (3) of the Labour Act [Chapter 28:01].  The section reads:-

“(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”.

This principle of the law was aptly captured in the case of

ASTRA HOLDINGS (PRIVATE) LIMITED VS PEGGY KAHWA

SC 97/04

It was stated at page 3 of the cyclostyled judgment that:-

“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.”

In an allegation of constructive dismissal, the onus lies on the employee to prove that the employer by its acts or omissions made continued employment intolerable for him/her.  The intolerable conditions resultantly made him/her to resign from employment.

In casu, the facts found proved by the Arbitrator were that:

Respondent was on sick leave for a period in excess of 90 days.

Respondent submitted medical certificates from various doctors covering the period he was sick.

Respondent did not formalize his sick leave as was required in terms of Section 14 of the Act.

Appellant demoted Respondent from the position of Director of training to the position of consultant.

Before effecting the demotion, no disciplinary hearing was conducted against Respondent by Appellant.

The rules of natural justice were flouted by Appellant.

The demotion was a unilateral variation of Respondent’s contract of employment.

After having found as stated above the Arbitrator came to the conclusion correctly in my view, that Respondent was constructively dismissed.

The record shows that after Respondent’s demotion, he did not sit on his laurels and accepted his fate.

He engaged his superior, the Director General with a view to having the demotion reversed.  Unfortunately for him his plea was not accepted.  Upon realization that, the decision to demote him was not going to be reversed, he tendered his resignation.  This was because he could not take the humiliation that went with the demotion.

It is hard to believe Appellant’s submission that Respondent resigned as a way to avoid disciplinary proceedings.  There is nothing on record that shows that Appellant intended to institute disciplinary proceedings against Respondent.  There was neither suspension letter, nor a charge letter served on Respondent which could have prompted him to resign.  The oral submission proffered by Appellant in this Court after being questioned, to the effect that Respondent was told verbally (not formally though) that disciplinary proceedings will be leveled against him cannot be accepted.  It cannot reasonably be true.

The demotion having been irregularly effected I find the Arbitrator’s finding that if an employee is demoted, this is repudiatory conduct by the employer and a consequent resignation by the employee is acceptance of the repudiation and hence in law, a dismissal by the employer, beyond reproach.

The third ground of appeal is without merit as well.  The Arbitrator rightly stated that the constructive dismissal did not vanish by the acceptance of terminal benefits.  She correctly identified and applied the law.  Section 13 of the Act does not make any distinction in terms of how the contract of employment is terminated when it comes to payment of terminal benefits.  Whether an employee has been dismissed, resigns or his contract of employment is lawfully terminated, that employee shall be paid his wages and all other benefits due to him up to the time of dismissal, resignation or termination.

Further, it has been stated that acceptance of terminal benefits is not waiver of reinstatement.  See

ISAAC MUKWINYA V CLAN TRANSPORT SC 47/2001.

From the facts as outlined the analysis of same and application of the law, it cannot be said that the Arbitrator misdirected herself at all.

To that end I find the appeal to be without merit.  Consequently, it is ordered that it be and is hereby dismissed in its entirety with costs.

Kantor and Immerman–Appellant’s Legal Practitioners

Makonese, Chambati & Mataka–Respondent’s Legal Practitioners