DISTRIBUTABLE
(10)
Judgment
No. SC 12/04
Civil
Appeal No. 270/02
COLCOM
FOODS LIMITED v CHRISTOPHER KABASA
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & MALABA JA
HARARE,
FEBRUARY 10 & MARCH 2, 2004
A
Mugandiwa, for the
appellant
F
Nyakabawu, for the
respondent
MALABA
JA: This is an appeal from a judgment of the labour court
delivered on 25 June 2002 declaring that termination of
the
respondents employment on notice was unlawful, setting it aside
and ordering that the parties should negotiate a retrenchment
package.
The
facts are common cause. The respondent (Kabasa) was employed
by the appellant company (Colcom) as a human resources
manager.
He was allowed to sit as a member of the board of directors of
Colcom. That privilege was later withdrawn, with the
effect that
Kabasa remained a human resources manager with no loss of salary and
benefits. Mr Kabasa did not accept the withdrawal
of the
status of a director, arguing that it constituted a demotion to the
position of human resources manager.
Faced
with the refusal by Kabasa to work in the position of human resources
manager, Colcom gave him three months notice to terminate
his
contract of employment. The contract of employment entered into by
the parties on 6 July 1990 provided that it was terminable
by
either party giving the other three months notice. Colcom operated
a registered employment Code of Conduct (the Code).
Mr Kabasa
admitted that the Code applied to him. It was also conceded in
para 7 of the heads of argument that whilst
a director can be an
employee his termination as director would be dealt with in terms of
the Articles of Association of the company.
It was conceded further
that the removal of Kabasa as a director of Colcom whilst he retained
his status of employee as a human
resources manager on the same
salary and benefits was not a demotion or retrenchment. Mr Kabasa
was therefore an employee
to whom the Code applied at the time his
contract of employment was terminated as he had lost the status of
director.
It
was argued that Colcom should have terminated Kabasas contract of
employment in terms of the procedure provided for under
the Code or
in accordance with the retrenchment procedure set out under the
Labour Relations (Retrenchment) Regulations, SI 404/90.
This
argument is unsustainable in the light of the concession of the fact
that the withdrawal of the status of director did not
constitute a
demotion or retrenchment. It was not an act of misconduct for
Kabasa to refuse to accept the change in his conditions
of service
and as such Colcom was not bound to terminate his employment in terms
of the disciplinary procedure laid down in the Code.
In Chirasasa
v Fidelity Life Assurance and Anor
S-135-02 it had been argued that the enactment of s 1A of the
Labour Relations (General Conditions of Employment) (Termination
of
Employment) Regulations, SI 377/90 had not removed the
obligation on an employer to obtain prior written approval of the
Minister of Labour and Social Welfare (the Minister) to
terminate a contract of employment on notice where a Code of Conduct
which applied to an employee existed in the establishment. The full
Bench of this Court rejected the argument as said at pp 10-11:
when it removed the obligation to
obtain the prior written approval of the Minister as a procedural
requirement for the termination
of a contract of employment on
notice, s 1A of the Regulations introduced the procedure
contained in the employment Code of
Conduct as the method of
termination of the contract of employment where the disclosed or
undisclosed reason thereof was misconduct
on the part of the
employee.
Where
there was no allegation of misdemeanour, the effect of s 1A of
the Regulations was that the employer had a right to terminate
the
contract of employment on notice, as long as the employee was one to
whom the provisions of the registered Code of Conduct applied.
The
legal effect of s 1A of the Regulations was that a contract of
employment could be terminated on notice for any reason
other than
those relating to misconduct.
In Chirasasas
case supra
the reason for the termination of the contracts of employment of the
appellants was that they had refused to accept new terms and
conditions of employment proposed by the employer. They had
conceded the fact that there was no act of misconduct alleged against
them. It was held that for that reason the employer was entitled to
terminate their contracts of employment on notice without having
obtained prior written approval of the Minister.
In
this case it was conceded that there was no allegation of misconduct
levelled against Kabasa. He was not being retrenched.
It was his
refusal to accept that his status was that of human resources manager
that caused the decision to terminate his employment
with Colcom on
notice.
On the authority of Chirasasas
case supra,
Colcom was entitled to terminate Kabasas employment on notice.
The decision of the labour court to the effect that the termination
was unlawful is wrong. It must be set aside.
The
appeal succeeds. It is ordered that the decision of the labour
court be and is hereby set aside with costs and in its place
substituted the following order
The
appeal against the decision of the senior labour relations officer
succeeds with costs and termination of the employees contract
of
employment on notice is confirmed.
SANDURA JA:
I agree.
ZIYAMBI JA:
I agree.
Wintertons,
appellant's legal practitioners
Gill,
Godlonton & Gerrans,
respondent's legal practitioners
