No. SC 51/04
Appeal No. 311/02
SECURITY SERVICES (PRIVATE) LIMITED v LAST HLABANGANI
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
JULY 1 & SEPTEMBER 9, 2004
Mugandiwa, for the
Zhou, for the
JA: This is an appeal from a judgment of the Labour Relations
Tribunal dated 21 August 2002 setting aside the termination
respondents contract of employment with the appellant and ordering
that he be reinstated into his original position without
salary and benefits failing which he be paid damages the quantum of
which was to be assessed by the Tribunal.
respondent (Hlabangani) was employed by the appellant (Gauntlet
Security) as a security guard on 5 February 1996. His contract
employment was terminated on 12 September 1997. During the time he
was employed by Gauntlet Security, Hlabangani was occasionally
to perform his duties because of ill-health. He was on sick leave
on no less than four occasions during the period of nineteen
he was with the appellant.
undisputed facts found proved by the National Employment Council from
the decision of which he had appealed to the Tribunal
1. On 28 November 1996,
respondent reported sick and was away on sick leave until 10 January
1997 giving a total of one month and
4 April 1997 respondent reported sick and was away on sick leave up
to 16 April 1997 giving a total of 12 days sick leave.
3. On 29 May 1997 respondent
reported sick and was away from work until 5 June 1997, 8 days sick
8 August 1997 respondent reported sick and was away from duty up to 3
September 1997, about one month.
On 3 September 1997 Hlabangani
wrote a letter to Gauntlet Security management asking for financial
assistance to pay hospital bills.
On 11 September a meeting was
held between Gauntlet Securitys personnel manager and Hlabangani.
The effect that Hlabanganis
ill-health was having on the
performance of his duties was discussed. The parties also discussed
the question whether it was not
in the best interests of both of them
to have the contract of employment terminated by mutual agreement.
It appears that Hlabangani
was given until the following day to
reflect on the matter.
12 September he signed a document in which he said he agreed to
terminate his contract of employment on payment by Gauntlet Security
of wages in lieu of a months notice. He admitted that he signed
the document containing the terms on which the contract of employment
was to be terminated by mutual agreement. He claimed however that
he signed the document not with the intention of binding himself
under a mutual agreement to terminate the contract of employment but
because he wanted to get the terminal benefits. He did not
he was forced to sign the document nor did he deny that by conduct he
led his employer to believe that he was agreeable
to a mutual
termination of the contract of employment.
collecting the terminal benefits and using them Hlabangani lodged a
complaint of unfair dismissal with the local joint committee
National Employment Council for the Commercial Sector. He alleged
that he had not intended that his contract of employment
terminated. The local joint committee agreed with him and set aside
the termination of employment and ordered his reinstatement.
Gauntlet Security appealed to the National Employment Council which
found that the parties had terminated the contract of employment
mutual agreement. It held that the parties were entitled under s 2
of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations 1985 (SI 371/85) to terminate
the contract of employment by mutual agreement in writing.
appealed to the Labour Relations Tribunal. The facts were largely
common cause. The Tribunal failed to understand
the facts and give
effect to them. It held on no evidence that Hlabangani had not
voluntarily resigned from employment because
had he done so he would
not have lodged the complaint of unfair dismissal with the local
joint committee of the National Employment
Council for the Commercial
Sector. It then found that Hlabangani had been dismissed from
reasoning of the Tribunal is captured in this passage from the
applicant had appealed for assistance by letter on page 25 of the
record, this was on 3 September 1997. On 11 September 1997
called to the office to discuss his ill-health and it is alleged that
he accepts to voluntarily resign. He signs the dismissal
form on 12
September 1997 and on the same day he applied for a reference letter
clearly indicating that he wanted to still try and
On 16 September 1997 he appeals against unfair dismissal. From the
above facts I find it highly improbable that
the appellant accepted
to resign. Had he acted voluntarily he would not have lodged a
complaint soon afterwards against dismissal.
The reasons why he was
called to the office soon after asking for cash in lieu of leave were
not given. The only thing that the
employer did after calling the
appellant to the office was to agree to terminate the contract
of employment. This seems to
be the only reason why the appellant
was called to the office. I do not accept that the appellant acted
freely and voluntarily.
His actions do not show that he was in
agreement with the dismissal.
I agree with the submission
made by Mr Mugandiwa
that the finding that Hlabangani was dismissed from employment by
Gauntlet Security was irrational. The reasoning of the Tribunal
with respect very confusing. A finding is made that Hlabangani did
not voluntarily resign from employment. There had been
allegation of the fact that he had resigned from employment.
Terminating employment by tendering resignation and doing so by
mutual agreement are two different things. Gauntlet Security
alleged that the contract of employment was terminated by mutual
Hlabangani on the other hand said he signed the document
containing the terms of the agreement to terminate the contract of
The only difference between the two positions is that
Gauntlet Security said the parties were ad
idem as to the
termination of the contract of employment at the time they put their
signatures on the document containing the terms of
whilst Hlabangani said he had no intention of terminating employment
as such but signed the document with the intention
of getting the
money to be paid to him as terminal benefits.
A close look at the facts shows
that Hlabangani did not suggest that he did not voluntarily put his
signature on the document nor
did he allege that he did not know that
it contained terms of an agreement to have a mutual termination of
the contract of employment.
He did not in fact allege that he was
dismissed from employment. There was no unilateral act of
repudiation of the contract of
employment by Gauntlet Security.
Hlabangani was in fact saying that while he represented to Gauntlet
Security by conduct in signing
the document that he was agreeable to
a mutual termination of the contract of employment and led it to
believe that indeed he intended
what he had written on the document
he in truth did not intend that his signature should have the effect
it had. If that is the
case he is entirely to blame for having
misled Gauntlet Security into believing what he intended it to
believe that is to say that
the contract of employment was being
terminated by mutual agreement. He must have known that he was not
entitled to the payment
of the money he received as terminal benefits
without the contract of employment having been terminated in terms of
in the document that he signed. See Forestry
Commission v Kujinga
appeal accordingly succeeds with costs. The decision of the Labour
Relations Tribunal is set aside and in its place substituted
appeal from the decision of the National Employment Council for the
Commercial Sector is dismissed with costs.
CJ: I agree.
JA: I agree.
appellant's legal practitioners
respondent's legal practitioners