DISTRIBUTABLE (73)

Judgment No. SC 97/04

Civil Appeal No. 165/01

ASTRA HOLDINGS (PRIVATE) LIMITED v PEGGY KAHWA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA JA & GWAUNZA JA

HARARE MAY 18, 2004

W Ncube, for the appellant

S R Mandimika, for the respondent

MALABA JA: After hearing submissions on behalf of both parties in this appeal, we dismissed it with costs and indicated that reasons for the decision would follow. These are they:

The respondent was employed by the appellant (“Astra Holdings”) as a State certified nurse. In April 1999 she applied for and was granted study leave without pay to March 2000 to upgrade her qualification to that of a State registered nurse. The study leave was later extended to July 2000 because she had fallen ill whilst on the course and had not been able to write examinations. At the end of July 2000 she wrote two papers but failed one of them. She was to re-write the paper on 23 November 2000.

The respondent did not resume her duties with Astra Holdings on 1 August. In the founding affidavit filed in support of the application she made to the court a quo, she alleged that, she attended at her place of employment with the intention of resuming her duties but was told by the Human Resources Manager to stay home until she had finished writing her examination.

Astra Holdings did not pay the respondent any salary and benefits from 1 August 2000. It accepted however that she was still under its employment because on 5 November 2000 it offered to have the contract of employment terminated by mutual agreement. When she rejected the offer Astra Holdings commenced retrenchment proceedings against her in terms of the Labour Relations (Retrenchment) Regulations 1990 (SI 404 of 1990) as read with the Labour Relations (Retrenchment (Amendment) Regulations (SI 252 of 1992).

Whilst results of the determination of the retrenchment committee were awaited the respondent made an application to the High Court on 6 December claiming an order that she be paid her salary and benefits from April 2000. The order sought also directed Astra Holdings to reinstate her to the original position of employment within seven days of the service of the order.

The respondent had taken the view that by withholding payment of her salary and benefits, Astra Holding had dismissed her from employment. In the same breath she said that she still considered herself as Astra Holding’s employee. Astra Holding denied that it had dismissed her from employment. It averred that it would not have instituted retrenchment proceedings if her contract of employment had already been terminated. It denied that she was entitled to an order of reinstatement. It also denied that she was entitled to the payment of salary and benefits from April 2000 saying she had not done any work for it during that period.

The learned judge held that the respondent had been “constructively dismissed” from employment and ordered that she be reinstated without loss of salary and benefits from 1 August 2000.

It was conceded on appeal by Mr Mandimika for the respondent that the decision that the respondent had been “constructively dismissed” had no factual and legal basis. 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 Western Excavating v Sharp [1978]1 ALL ER 713 LORD DENNING MR at 717 d – f said;

“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 for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

The respondent did not claim constructive dismissal. The conduct she complained of was that Astra Holding had not paid her her salary and benefits from 1 April 2000 to the date of the order applied for in the court a quo. At no time did she say that because of the conduct of Astra Holding, she had treated herself as having been discharged from employment and left. She affirmed the contract of employment when she rejected the offer by Astra Holding to terminate it by mutual agreement.

The respondent was not entitled to an order of reinstatement on the ground of constructive dismissal when she never terminated her contract of employment by reason of her employer’s conduct.

Mr Ncube properly conceded the fact that Astra Holding had no right to withhold the payment to the respondent of her salary and benefits from 1 August 2000. Whilst Astra Holding was entitled at common law to withhold work from the employee it was under a contractual obligation to nonetheless pay her the salary and benefits due to her in terms of the contract of employment until its lawful termination as long as she was ready to discharge her side of the bargain.

Mr Ncube said that the decision to withhold the payment of the salary and benefits to the respondent was taken on the mistaken belief by Astra Holding that retrenchment would have retrospective effect. In Kadir & Sons (Private) Limited v Panganai & Anor 1996 (1) ZLR 598 (S) to which Mr Ncube drew our attention, GUBBAY CJ said at 604 C :-

“It is clear to me that until the critical stage of the Minister’s decision has been reached, the employees whom the employer proposes to retrench remain on pay-roll. They have not been retrenched.”

It must follow that the fact that Astra Holding had instituted retrenchment proceedings did not mean that it was discharged from its legal obligation to pay the respondent her salary and benefits pending the approval of the proposed retrenchment.

The court a quo was correct in ordering that the respondent be paid her salary and benefits from 1 August 2000 until the approval of the proposed retrenchment. Apart from amending the order of the court a quo by deleting the portion directing that the respondent be reinstated, the appeal was dismissed with costs.

CHIDYAUSIKU CJ: I agree.

GWAUNZA JA: I agree.

Coghlan Welsh & Guest, appellant’s legal practitioners

Ziweni & Company, respondent’s legal practitioners