Author: Taurai Mrewa

 “The evidence as a whole in my view leads to one logical conclusion; that the appellant was well aware of what it was doing when it entered into the contracts and the legal consequences thereof. This appeal is, therefore, nothing more than an attempt to depart from a valid and legally binding agreement. Courts frown upon attempts to skirt one’s legal obligation and it is therefore proper that the appellant be made to pay the respondent’s costs.”

Introduction

This case is amongst a series of judgements passed by the Supreme Court of Zimbabwe supporting the argument that courts do not readily rewrite contracts between an employee and his or her employer. All things being equal, the court will readily accept all the terms and conditions in a document duly signed by the parties as binding. This is provided that the contract was not induced by malice like fraud and misrepresentation.

Facts

The major source of the dispute was the fact that the employee had signed two agreements governing his occupation of company-provided accommodation. The first agreement was a memorandum of agreement where the appellant company had agreed to sell its houses to its employees. In the second instance, there was a lease agreement also governing the occupancy of the same house. The lease stipulated the rentals that the employee was entitled to pay.

The employer started deducting money from the employee’s salary. These deductions were itemised as “rent to buy”. The same amounts were also stated in the initial memorandum of agreement as amounts payable on the sale of the said house. The employee’s contract ended on 4 June 2007 and the employer required the employee to vacate the house. Believing that he had made a full payment in purchasing the house, the employee refused to vacate. Eviction proceedings started in the High Court, but the court ruled in favour of the employee. It was based on this HC judgement that the appellant company approached the Supreme Court.

Court’s Reasoning

Role of court in contractual disputes

The SC ruled that its duty was never to write a contract but to interpret the same. In interpreting the contract, the court is duty-bound to uphold the intention of the parties, provided the contract is valid.

The court noted that the memorandum of agreement signed by the parties made up a valid contract of sale in that the parties agreed to buy and sell the house and agreed on a price. Once these requirements were met, the court will seek to uphold the agreement. It made an important remark:

“If the appellant is to persist with the argument, it can only be construed as contracting in bad faith and as stated in the above cases, courts are not there to absolve one party of its obligations to another, particularly where the other party contracted in good faith and carried out its side of the agreement.”

Caveat Subscriptor

This is the principle that a party to a contract is bound by his signature whether he has read and understood the contract. The SC argued that this principle buttressed the argument that the memorandum of agreement signed between the employer and the employee was a valid contract of sale because the document said so and that the parties had signed the agreement.

It further argued that the lease agreement signed by the parties only completed the sale because deductions were made from the employees’ salary showing that this was a “rent to buy” arrangement.

Based on the above, the Supreme Court dismissed the appeal with costs.

Own Comment

The biggest lesson one can learn from this case is that courts are bound by what parties would have agreed. The courts do not have a duty to rewrite contracts as their only role is to give meaning to their terms. This case confirms what the SC has held in a plethora of cases like Unilever Zimbabwe (Pvt) Ltd v Matsheza^[1], Magodora & Others v CARE International Zimbabwe^[2]  and Lawrence Shumbayaonda v Madhatter Mining (Private) Limited.^[3] Contracts duly agreed upon by the parties will be upheld.

[1]           Unilever Zimbabwe (Pvt) Ltd. v Matsheza (SC 16/2017).

[2]           Magodora & Others v CARE International Zimbabwe (SC 191/13).

[3]           Lawrence Shumbayaonda v Madhatter Mining (Private) Limited (HH 147-2010).

 “In my view, the rights of the respondent are embodied in the contract which he signed. He cannot look outside the contract to add to its terms. The act of generosity by the appellant in awarding him an increase in his allowance cannot by any stretch of imagination be deemed to be an acknowledgement that the respondent was entitled to more than was agreed to in terms of the contract.”

Introduction

This case illustrates the legal implications associated with a mutual separation agreement validly agreed upon and signed between an employer and an employee. In terms of the National Code of conduct, an employer and an employee can mutually agree in writing to end a contract of employment.

The major question before the court was “whether the respondent was entitled to a higher retrenchment package than that agreed to in the retrenchment agreement concluded by the parties”. It was argued that once this agreement is put in place; no party can renege. All parties will be bound by the terms and conditions of what would be contained in the document governing the separation.

Facts

On 15 October 2015, the employer and the employee mutually agreed to end their employment relationship. The package given to the employee was in full and final settlement of all claims, present or future arising from the employment. When the mutual separation with the respondent employee had been finalised, the employer reviewed the basic salaries for the rest of its employees. It also increased the respondent’s retention allowance. The respondent appreciated the gesture but later he demanded that his package be reviewed in tandem with the reviews that had been received by the other employees. The employer did not agree. Aggrieved, the respondent employee brought the matter to the attention of a labour officer. Conciliation failed and this led to arbitration. The arbitrator argued that the retrenchment package had to be reviewed as per the employee’s demand. Labour court dismissed the appeal against the arbitrator’s decision leading to the current proceedings.

The court’s reasoning

Sanctity of contracts

The Supreme Court’s ruling was premised on the principle that contracts validly entered between parties should be respected. The court noted:

“A party who signs a contract is bound by its terms. That is trite. He cannot blow hot and cold by accepting his benefits under the contract and thereafter, as an afterthought, demanding benefits outside the contract. Once he signed the retrenchment package thus accepting its terms, he was no longer an employee of the appellant and was not entitled to any benefits awarded to the appellant’s employees.”

One cannot look elsewhere for conditions defining his or her separation from the employer if these are contained in a document validly signed and agreed upon by both parties.

Own Comment

The Supreme Court, in this case, confirmed the doctrine found in Magodora & Others v CARE International Zimbabwe^[1] wherein the court argued that it was not the duty of the courts to rewrite a contract. Employers and employees remain bound by what they would have agreed upon for as long as the said agreement did not result from fraud or duress or any other element that attacks the consensus between the parties.

This case must be read together with the Ashanti Golf Fields case discussed below, Both cases relate to the importance of abiding by a contract duly agreed upon by the parties. The law does not tolerate litigants that renege from contracts that they would have appropriately entered into.

[1]           Magodora & Others v CARE International Zim (SC 191/13).

“Quite clearly the respondents were transferred, with the undertaking, to another employer.  Their employment was not terminated.  In terms of the contract and also by operation of s 16 of the Act, the respondents were transferred to Rutimba on terms not less favourable than they enjoyed in the employ of the appellant.   At the very least, they were transferred on the same terms.”

Introduction

This case also involved a transfer of an undertaking. It outlines the effect of the failure to consult the employees before an undertaking is transferred to a new owner. It also discusses the recourse for employees who are aggrieved by a completed transfer of an undertaking.

The Facts

L Tendere and 24 Others were former employees of Chemco Holdings (Private) Limited. Chemco Holdings (Private) Limited sold its timber building supplies division, T S Timbers, to Rutimba Housing (Pvt) Ltd as a going concern.  The Respondents registered a complaint with the labour inspectorate of the Ministry of Public Service Labour and Social Welfare,

alleging a case of ‘alleged unlawful transfer of undertaking’. This happened 10 months after the transfer. The arbitrator and the Labour Court concluded that the transfer had not been done correctly by virtue of the employer having failed to consult the employees concerned.

The Law

In dealing with this dispute the Supreme Court noted that Section 16 of the Labour Act only requires the employer to consult the employees. There is no mandate to accept what they propose. It added:

“The provision requires the employer intending to transfer ownership to afford, to members of the works council representing the workers committee, an opportunity to make representations and advance alternative proposals. The employer is placed under no obligation to accept the proposals. He simply has to give reasons for disagreeing with them. No power of veto is given by the statutory provision to the works council or to the employees”.

It was therefore wrong for the arbitrator to find that the failure to consult the employees resulted in the transfer becoming a nullity.

On assessing the award of terminal benefits to the respondents the court also realised that the Arbitrator had erred. Since the employees had been transferred together with the business, it was not competent for the former employer to be compelled to pay terminal benefits. The court realised that if the employees had any grievances, such were supposed to be addressed to the new employer, Rutimba. It buttressed the effects of the transfer of the undertaking in the following terms:

“Once the respondents moved from one employer to the other the latter, in terms of both the contract and s 16 of the Act, assumed all responsibility for the respondents. Rutimba, being the new employer, was obligated by s 16 to ensure that the conditions of service enjoyed by the respondents were no less favourable than those they enjoyed with their former employer, the appellant. The respondents’ cause of action, if any, lay against Rutimba, not against the appellant.”

What was clear in the eyes of the court was that the grievance had arisen after the transfer had taken place. Whilst section 16 allows the affected employees to proceed against the former employer this option is not available when the transfer is completed.

Conclusion

The court upheld the appeal and dismissed the award by the arbitrator.

Own Comment

This case is commendable. A works council is not clothed with the power to veto a sale of a business. The employer retains the right to consult the employees whereupon consider the options put on the table. Consideration, in this case, does not mean that the employer may end up stopping a transfer based on the options presented by the works council.

Once a transfer is completed there is no reason for holding a former employer accountable for the actions of the new employer. What is also apparent was the fact that the award of terminal benefits against the former employer was misplaced because the employees had already been transferred.

[1]           Chemco Holdings (Private) Limited v L Tendere and 24 Others SC 14 – 17.

“In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S) at 179F the Court held that the Labour Act [Cap. 28:08] contains no provision which either expressly or by necessary implication alter purports to the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship. Once it was accepted that the misconduct the appellant was found guilty of went to the root of the contract of employment, dismissal was the appropriate penalty”.

Introduction        

Ajasi Wala v Freda Rebecca Mine SC 56 – 16 buttresses the law that applies when one acts in a manner contrary to the implied and explicit conditions of the employment contract. The case is amongst the countless judgements that posit that when an employee serves his or her personal interests at the expense of the employer’s interests, dismissal is warranted. This case also shows and supports the rule that a court cannot casually alter a penalty imposed by a disciplinary tribunal.

The Facts

The appellant employee was the acting Human Resources Manager for the Respondent mining company. He was asked for the personal files of all employees. His disciplinary record for the seventeen years he has been employed by the Mine was missing. He was the custodian of those documents. When it became apparent that he had removed from his personal file all the relevant disciplinary documents he was charged with contravening ss 4(a) and (g) of the National Employment Code of Conduct Regulations (S.I 15 of 2006). He was also accused of intimidating a newly appointed Human Resources Manager and failing to discipline employees as required. Eventually, he was dismissed from employment.

An arbitrator that handled the appellants dismissal concluded that he had been properly found guilty but went on to alter the penalty and ordered reinstatement to his former position. Aggrieved, the respondent company appealed to the Labour Court which court set aside the Arbitrator’s determination. This Labour Court judgement founded the current appeal as the employee became aggrieved.

The Law

The main question before the court was whether the Labour Court made an error in interfering with the decision of the arbitrator. The main principle in such cases is that an appellate court can only substitute its discretion for that of the tribunal whose decision is being appealed against where there has been a serious misdirection or error of law committed by the tribunal. In applying this principle, the Supreme Court made use of the remarks in a matter between Tobacco Sales Floors Ltd. v Chimwala 1987(2) ZLR 210(s), where McNally JA approved the dictum by Lord James of Hereford in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on at 218H-219A to say:

“I consider that the seriousness of the misconduct is to be measured by whether it is ‘inconsistent with the fulfilment of the express or implied conditions of his contract’.   If it is, then it is serious enough prima facie to warrant summary dismissal.   Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

It is therefore apparent that where the act of the employee is inconsistent with the fulfilment of the express or implied conditions of his contract, summary dismissal is warranted. It was further found that it is a serious act of misconduct for an employee to deliberately act against the employer’s policies and to advance personal interests. 

The conduct of the employee went to the root of the employment to warrant dismissal. This was mainly because he had caused the disciplinary documents under his custody to disappear and to make it appear as if he had a clean disciplinary record. With regards to the employer’s discretion to dismiss an employee the court took into consideration Mashonaland Turf Club v George Mutangadura (SC 5/2012) which precludes the Labour Court and the Arbitrators from altering the penalty of dismissal.

Conclusion

The appeal was found to be without merit and was dismissed.

Own Comment

The judgement ramparts the well-known principle that an act or omission which is inconsistent with the fulfilment of the express or implied conditions of his contract warrants dismissal if it goes to the root of the employment relationship. This will be so if an employee’s actions or omissions show that the employee was desisting from serving the employer’s interests.

“The quantification done by the arbitrator and upheld by the Labour Court in this matter is legally unsustainable. As the respondent did not prove that he was entitled to more than what the appellant had paid him, the Labour Court ought to have granted absolution from the instance.”

Introduction

The quantification of damages in lieu of reinstatement is a frequent source of labour law litigation. There is always the temptation to “pluck the figures from the air” an approach that the courts have frequently discouraged. Quantification of damages in lieu of reinstatement is not an easy task. Those who preside over such disputes must as much as possible fully utilise the evidence presented by the parties. Failure to consider such evidence results in a problematic outcome.

The Facts

This case was an appeal against the quantum of damages in lieu of reinstatement that was awarded to the Respondent, Kenny Broxham by an arbitrator. The Labour Court had agreed with the quantum.  Noteworthy, on 30 November 2009, the appellant company had given a month’s notice of termination of the employee’s contract, effective from 1 December 2009 to 31 December 2009. The respondent employee accepted alternative employment with effect from May 2010.

The Law

First, it was the Supreme Courts’ observation that the respondent was out of employment for four months. The damages awarded by the arbitrator and upheld by the Labour Court were for 9 months. There was no evidence supporting the 9 months. There was therefore no legal basis for the award because the amount granted in the arbitral award had no basis or explanation.

The Supreme Court utilised the law in Zupco v Daison wherein it was stated that:

“… in its judgment the Tribunal did not say why it chose the period of forty-eight months as opposed to any other period. As stated in Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S) at 575D, ‘if the tribunal is forced to make an estimate, it must use the information to hand, and not simply pluck a figure from nowhere. In the circumstances, I am satisfied that the Tribunal’s decision can be categorised as wholly unreasonable. …”

Duly Holdings Limited v Clever Spanera 2005 (1) ZLR 407 (S); SC 140/04 was also utilised wherein the court remarked:

“He (the employee) will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have been expected to find alternative employment.”

In essence, the Supreme Courts’ argument is straightforward, any process of quantifying damages must be supported by evidence. Failure to consider the evidence by the party’s results in an unreasonable award which is liable to be set aside by an appellate court. Even where a court is compelled to make an estimate, this estimate must be supported by the information presented by the parties.

Conclusion

The court allowed the appeal.

Own Comment

Repeatedly the Supreme Court has urged the lower courts to substantiate the quantum of damages with the evidence presented by the parties.[1] This is a universal rule when it comes to the quantification of damages in lieu of reinstatement. Plucking figures from the air results in an arbitrary decision which is not supported by the authorities on this subject.

[1]              See also Redstar Wholesalers v Edmore Mabika SC 52/05 wherein the court said: “The Labour Court’s approach was wrong and its consequent ruling grossly unreasonable. The Court is not entitled to pluck a figure out of a hat because it is of the view that this figure „meets the justice of the case‟. Instead, the court is required to hear evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment. The fact that the parties have led insufficient evidence to enable the court to arrive at an informed conclusion does not absolve the court from its duty to utilise its powers in terms of s 89 (2) of the Labour Act by calling evidence in order to resolve the issue.”

“It is clear that the filing of the medical aid claims was an integral part of the respondent’s duties as an employee of the appellant.  Where an employee fails to further the interests of the employer by omitting or refusing to do the work he is employed to do such failure amounts to serious misconduct that goes to the root of the employment contract. There can be no doubt on the facts of this case that the respondent failed to execute her duties as was expected”.

Introduction

Let’s say you are conducting a disciplinary hearing and you observe that an employee has been charged with an offence that warrants a final warning letter. Let’s also imagine that in  the course of the same proceedings you realize that the offence committed is of a serious nature. Would you dismiss the employee?

In the world of criminal justice, a person cannot be found guilty of an offence they were not charged with. In the civil sphere, particularly administrative hearings, the position is a bit different. ZB Bank v Maria Masunda SC is authority of the fact that an employer has a discretion to dismiss an employee if he or she takes a serious view of the offence.

The Facts

The facts relevant to this discussion are hereby summarized. The respondent employee was employed by the appellant company as a Health Education Officer. In August 2007 the employee informed her superior that she was overwhelmed with work. In December 2007 she went on a training program. In January 2008, she went on leave.  She wrote to her supervisor that she needed more labour. No additional labour was availed. Apparently, in violation of the company procedure, medical aid forms were not being filed. A new manager was appointed who found the situation undesirable. The employee was charged with contravening section 10 (2) of the Code of Conduct for the Banking Undertaking Statutory Instrument 273 of 2000 for ‘negligence causing substantial loss to the bank’ and in the alternative, ‘failure to comply with standing instructions or follow established procedure resulting in substantial loss to the Bank.’ The respondent employee was found guilty of ‘gross negligence’ for not submitting CIMAS claims totalling ZW$623 trillion over the period December 2007 to May 2008. I

In terms of the code of conduct, this offence was a category D offence that warranted a penalty of dismissal. An appeal to the National Employment Council Appeals Board resulted in a finding that she had been wrongfully dismissed. The employer was ordered to reinstate her without loss of salary. Aggrieved, the employer appealed to the Labour Court which appeal was dismissed resulting in the current proceedings.

The Law

The court took into consideration various precedencies. First, it found that even though the employee was charged with ‘mere negligence”, what she did was a serious act of misconduct when all factors are taken into consideration. It ruled:

“It should be noted that disciplinary proceedings, not being courts of law, are not bound by strict rules of procedure and it was quite proper for him to find her guilty of gross negligence where the evidence disclosed such an offence”.

The court went on to say:

At common law, an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract. See Toyota Zimbabwe v Posi SC-55-07. In essence, where the employer takes a serious view of the misconduct, he can dismiss an employee even if in terms of the code of conduct the offence would have attracted a lesser penalty.  This position was set out in Zimplats (Pvt) Ltd v Godide SC 2/16 where GOWORA JA noted that:

“At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. [2] It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion”

It is therefore apparent that how an employer views an offence is crucial when dealing with workplace offences. It becomes irrelevant that the code does not provide dismissal as a penalty.

Reference was made to Circle Cement v Nyawasha SC 60/03, where this court held:

“Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.””

The court saw that the hearing was conducted fairly. That the employee had the chance to respond to the allegations raised against her.  The hearing officer took a serious view of the misconduct and the fact that the employee had not reported that the medical forms were not being filed. The financial loss that came with the employee’s misconduct was huge.

The court thus accepted the hearing officer’s discretion in dismissing the employee.

Conclusion

For the reasons indicated above, the court allowed the appeal.

Own Comment

In addition to NEC – Catering Industry v Richard Kundeya & Others SC 35-2016 this judgement reiterates what has been ruled on a sundry of occasions. If an employee commits an offence that goes to the root of the employment relationship, the employer has the discretion to dismiss the employee. The judgement also buttresses the common law position which is to the effect that an employee can still be dismissed if the employer takes a serious view of the offence. In this case, the fact that the employee had complained because of the workload did not excuse her from advancing the employer’s interests. This case should not be used to justify serious deviations from a code of conduct.

“Whether or not the mitigating factors outweighed aggravating circumstances was therefore an irrelevant consideration, unless the manner in which that decision was arrived at was shown to be unreasonable.  Once the employer had proven that the respondents had committed a serious dismissible act of misconduct and in the absence of any error, gross unreasonableness or misdirection, their fate lay firmly in the hands of the employer in terms of s 7 (3) of the National Employment Code of conduct.  The discretion whether or not to extend mercy lay with the appellant in its capacity as the employer.”

Introduction

This case deals with the reversal of a penalty of dismissal by the Labour Court. It also explains the discretion of the employer to dismiss an employee where a serious offence going to the root of the employment relationship is committed.

Facts

The respondent employees were employed as chief designated agents by the Appellant company.  They were given notices of transfers in August 2012. They were to work in various locations with effect from 1 January 2013. The transfers were in line with the employer’s policy and practice to rotate designated agents after serving in a particular area for a given period. 3 months’ notice was provided to the employees. The employees objected to the transfers. The Appellant NEC charged the respondents with wilful disobedience to a lawful order in terms of S.I. 15 of 2006. In the alternative they were charged with, any act or omission inconsistent with the fulfilment of the express or implied conditions of the employment contract in contravention of section 4 (a) of the statutory instrument. The disciplinary committee found all four employees guilty as charged and ordered their dismissal from employment. Aggrieved the employees appealed and an arbitrator confirmed their convictions but reduced the penalties from dismissal to final written warnings. The basis for this decision was that the mitigating factors outweighed the aggravating factors. Aggrieved by the arbitrators’ findings, the company unsuccessfully appealed to the Labour Court. The company then appealed to the Supreme Court.

The law

The Supreme Court, first recognised the need for employees to submit to the employer’s authority. It said that this was premised on the common law and statutory law of the country. The National employment Code of conduct merely codifies the common law. Without subordination to an employer’s authority, the Supreme Court argued, there cannot be a contract of employment. The court further found that, because the employees were in open defiance of their employer’s lawful orders, there is no dispute that they were correctly found guilty as charged by the disciplinary committee.  The disobedience was wilful and deliberate, therefore going to the root of their respective contracts of employment.

Further, the Supreme Court confirmed what the court has emphasised on several occasions that the employer has the discretion to dismiss an employee who commits a serious offence. It said:

“It is important to note right from the outset, that where an employee commits a dismissible act of misconduct under s 4 the law vests the discretion whether or not to dismiss the offending employee on the employer alone and no one else”.

The court found that the both the arbitrator and the Labour Court exercised a discretion to alter the penalty, which discretion they could not exercise in terms of section 4 of the National Employment Code of Conduct. Generally, an appellate court, arbitrator or tribunal cannot substitute its own discretion for that of the employer in the absence of unreasonableness.

The court also found that moral and compassionate grounds cannot be used to justify a reversal of a penalty of dismissal.

Conclusion

The Supreme Court allowed the appeal and confirmed the dismissal of the four employees.

Own Comment

Two lessons are apparent in this case. The first lesson is that if an employee commits a serious offence, the employer has a choice to dismiss the employee. Once an employer elects to dismiss there is no tribunal clothed with the power to reverse the dismissal. Reversal of a penalty given by an employer can only be done in exceptional circumstances like in instances where a disciplinary tribunal laboured under a wrong principle of the law or facts. See also ZIMPLATS v Ronald Godide (SC 2 – 2016) discussed above.

Secondly, the court emphasised that moral and compassionate grounds cannot be used to reverse a decision made by a disciplinary committee or authority.

[1]              National Employment Council for the Catering Industry v Richard Kundeya and Others SC 35-2016.

“I have no doubt in my mind that in addition to being a pension claim form directed to the pension company concerned, the same document carried a clear and unequivocal message or notice directed to the respondent, that the appellant was tendering her resignation. To suggest that it was not such a notice by virtue of its composite purpose would, in my view, be to unnecessarily emphasize form over substance. As indicated earlier, there is no set format or method of communicating the act of resignation.”

Introduction

Resignations come in all shapes and sizes. We contend that a resignation is pretty much straightforward. An employee simply puts across their unequivocal intention to end the employment relationship and that’s it, the employment ends. Whilst resignation is this candid, Eunice Madondo v Conquip Zimbabwe (Private) Limited SC 25 – 16 illustrates how a resignation may result in a dispute. The case also shows how a court may end up ordering costs on the legal practitioner and client scale.

The Facts

The Appellant employee was employed by the respondent company as a Finance Director from May 2007 up to February 2012. In February 2012 she had a dispute with the respondent Managing Director and General Manager which dispute had resulted in her suspension from work. On 13 February 2012, the appellant completed a “Pension Withdrawal Claim Form”. The form had a section where she was supposed to indicate her reasons for withdrawing from the pension. She indicated that it was because she was “leaving Conquip.”  The General Manager signed the form and in turn, she was paid her pension. The disciplinary proceedings that had been planned were set aside on realizing that she had resigned. Aggrieved she approached a labour officer and eventually an arbitrator who ruled that she had resigned. The Labour Court agreed with the Arbitrator. She remained aggrieved resulting in the Supreme Court appeal.

The Law

The Supreme Court looked at the definition of the word resignation. After utilizing the Oxford Advanced Learner’s Dictionary, it was apparent that resignation means: “an act of giving up one’s job or position”.

Having defined resignation it went on to state that:

“The form a notice of resignation should take is not ‘cast in stone’ as it were. One can resign verbally, by a letter or through whatever way may be preferred as long as the communication is transmitted to the correct recipient. In casu the Pension Withdrawal form which was filled by the appellant contained a section which required one to state the reason why he or she wished to withdraw the pension contributions or why they no longer wanted to be part of the pension scheme. This is where the appellant stated her reason as “leaving Conquip.” Taking the Oxford Dictionary definition of a resignation I am satisfied that this reason denoted an ‘act’ by the appellant, of giving up her job.”

The appellant’s act of presenting the form to the General Manager showed that she was resigning, the court observed. When the General Manager signed the form, the communication of the resignation was made. The court also looked at the law in the case of Jakazi & Anor v The Anglican Church of the Province of Central Africa (SC 10/13) where the Supreme Court stated that:

“The law is clear. Resignation is a unilateral act which takes effect upon being communicated.”

It thus followed, in the court’s view that at the time the Appellant indicated on the form that she was “Leaving Conquip” the resignation was communicated and acknowledged by the General Manager. Her argument that she had withdrawn from the pension fund so as to get money for school fees was found to be unacceptable.

Conclusion

At the close of the case, the court ordered that the appeal had no merit and was dismissed on the legal practitioner and client scale. In justifying this scale of costs, the court decided:

“The appellant must have known that the appeal had no merit but nevertheless persisted with it all the way to this Court. In the process, she put the respondent to the unnecessary expense of defending the litigation”.

Own Comment

The case is clear cut, once an individual communicates unequivocally that they are leaving employment, it means they have resigned. It does not matter whether such communication is in the form of a Pension Withdrawal Form, email, verbally etc. It may be added that, being a unilateral act, the employer does not need to acknowledge a resignation. Once it is communicated, the employment relationship comes to an end.