DISTRIBUTABLE (7)

Judgment No. SC 6/05

Civil Appeal No. 406/02

LEE GROUP OF COMPANIES v ANN CLARE ELDER

SUPREME COURT OF ZIMBABWE

SANDURA  JA, MALABA JA & GWAUNZA JA

HARARE, JANUARY 24 & MARCH 7, 2005

B. Mtetwa, for the appellant

The respondent in person

GWAUNZA JA: The appellant was ordered by the Labour Court to reinstate the respondent to her job with no loss of salary and benefits, failing which it was to pay her damages in lieu of reinstatement. Dissatisfied with this order, the appellant has now appealed to this Court.

The facts of the matter are largely common cause.

The appellant employed the respondent as an Assistant Bookkeeper with effect from 1 July 1998. Under the terms of her contract of employment, the respondent was to work for the first three months as a probationer, and thereafter, if the appellant was satisfied with her performance, she was to be employed on a permanent basis. At the end of the three months (3 months) probationary period, the appellant expressed no dissatisfaction with the respondent’s work, and she continued working. The respondent thereafter made several requests for confirmation of her status as a permanent member of staff, but received no positive response.

On 11 May, 1999 she confronted Mrs Lee, a member of the management and demanded that her permanent status be formally confirmed. She received the response from Mrs Lee that the appellant was not happy with her work performance and would therefore not make her a permanent member of staff. Upset at this news, the respondent packed her personal belongings and left the office without explaining where she was going. She stayed away from work until 17 May 1999 when she came back bearing a doctor’s report in which it was stated the doctor in question had attended to her on 11 May 1999 and that she had on that day been very upset “due to altercation” at work. No mention was made in the letter, of any sick leave. When this was pointed out to the respondent, she went back to the doctor, who wrote another letter stating that he had advised the respondent to go off duty from 11 to 17 May 1999 due to “severe reactive depression.” Together with this letter the respondent brought another letter, written by her and outlining what she referred to as her grievances. In the same letter, the respondent apologised for leaving work early on 11 May 1999 and for not coming to work from 12 to 14 May 1999.

Even though the respondent denied doing so, the appellant took the stance that she had verbally tendered her resignation on 11 May 1999, following the confrontation between her and the appellant’s Mrs Lee. The apology and the notes from the doctor failed to sway the appellant from this stance and on 18 May 1999 it addressed a letter to the respondent, which read:

“Dear Mrs Elder,

We accept your verbal resignation of Tuesday 11 May 1999. Since you failed to report for duty on the following three days thereafter and have only a doctor’s note for Tuesday 11 May 1999, which was actually dated 17 May 1999, it was obviously your intention to terminate your contract of work with this company.

If you have any queries, please refer to the NECCS” (National Employment Council for the Commercial Sector).

It would appear that contact was indeed made with the NECCS as the appellant, on the same day, addressed another letter to the respondent, which read as follows:

“Dear Mrs Elder

On referring to the NECCS, it has been decided to hold a hearing on Thursday 20 May 1999 to discuss and finalise the results of this case. You are hereby requested to attend this hearing on this date at 10:30 a.m. at the Head Office. You are hereby suspended until this hearing has been held”.

A contradiction is evident between the first and the second letters. If the appellant earlier on that day accepted the respondent’s resignation, it is not clear why later on the same day, it went on to “suspend” the respondent pending the hearing set for 20 May 1999.

Be that as it may, a hearing, at which the respondent denied having verbally tendered her resignation, was duly held on 20 May 1999. She also challenged the procedure adopted in “suspending” her, saying it was contrary to the provisions of the appellant’s Code of Conduct. Following the hearing, the appellant addressed a letter to the respondent, dismissing her from her employment and offering to pay her a month’s salary in lieu of notice.

The respondent, on the same day, responded as follows to the letter of dismissal:

“Dear Sir

Dismissal Notice

I refer to your letter of Dismissal issued to me on today’s date and as no charges were brought against me (I) advise that I do not accept the dismissal and furthermore, do not accept the offer of one month’s pay in lieu of notice.

I wish to advise that I will only accept a full reinstatement of my position with no loss of benefits … .”

In its response of the same date the appellant insisted on giving the respondent one month’s salary in lieu of notice, citing Clause 24 (5) (c) of the relevant Collective Bargaining Agreement, SI 45/93.

In another show of confusion, the appellant went on in the same letter to say;

“We otherwise confirm your oral resignation and walk out of 11 May 1999.

We advise that we accept such resignation and confirm that you ceased being an employee on that date … and did not report for work thereafter.

Should you not accept our without prejudice offer, please be advised that the matter will have to proceed in terms of your own resignation which we have accepted”.

The respondent then filed an appeal against her “unlawful dismissal” to the NECCS.

The appellant’s response to the respondent’s notice of appeal to the NECCS was essentially:

(i) that the appellant had from the outset accepted the respondent’s verbal resignation;

(ii) that the respondent had therefore not, nor could have been, properly dismissed;

(iii) that any negotiations with the respondent, including the “hearing” of 20 May and the offer of one month’s salary in lieu of notice, had been done in an effort to reach an amicable compromise; and

(iv) that the offer of one month’s pay had been made on a without prejudice basis, and its rejection by the respondent had taken matters back to her verbal resignation and its acceptance by the respondent.

The NECCS was not persuaded by the respondent’s submissions. It found there was no proof that the respondent had resigned from her employment, which in its view, therefore meant she had been unlawfully dismissed. It then ordered the appellant to reinstate the appellant without loss of salary and benefits.

The appellant’s subsequent appeals to the Negotiating Committee and thereafter the Labour Relations Tribunal, were unsuccessful.

In its notice of appeal to this Court, the appellant gives as its main ground of appeal the following:

“The Tribunal erred and misdirected itself when it mero motu concluded that the dispute centered on whether the respondent was still on probation or a permanent employee when the dispute related to whether or not respondent had repudiated her contract of employment and whether appellant had accepted such repudiation.”

In its other ground of appeal, the appellant contends the Tribunal erred and misdirected itself in concluding that attempts at conciliation amounted to a waiver of its rights of accepting the repudiation of the employment contract by the respondent.

I find there is merit in the appellant’s main grounds of appeal.

The respondent denied tendering her verbal resignation to Mrs Lee on 11 May 1999. However, her actions following the confrontation with Mrs Lee in my view tend to support, rather than disprove the assertion by the appellant that she did so. In addition to packing her personal belongings, the appellant went on to abandon her work without leave, for the rest of that day. Without explanation or permission from her employer, she did not report for work on the following three (3) days. During these days, it is not in dispute that she consulted the NEC for the Commercial Sector, at whose advice she compiled the list of grievances that she then brought to the appellant’s offices on 17 May 1999.

On the same date, i.e. 17 May 1999 and presumably also on the advice of the NECCS the respondent requested from her doctor, written confirmation that she had visited and been attended to by him on 11 May 1999. As already indicated, she went back to the doctor on 19 May 1999, and secured another letter to the effect that it was on his advice that she had gone off duty from 11 to 17 May 1999.

The appellant viewed the contents of the two letters from the respondent’s doctor with suspicion. In my view such attitude was justified, especially considering the events that had preceded her alleged visit to the doctor. Even assuming that the respondent did visit the doctor on 11 May 1999, her failure to obtain, on the same date, a doctor’s certificate excusing her from work for the next three days, clearly lends credence to the assertion by the appellant that the doctor’s note was obtained as both an afterthought and an attempt at damage control. No explanation has been given as to why, instead of the two letters issued after the event, as it were, one doctor’s certificate with the relevant information or direction, was not issued on the day the respondent was attended to.

It is the appellant’s contention that the respondent’s abrupt vacation of her office, the subsequent three days’ absence from her work and the doctor’s notes suspiciously obtained by her, cumulatively lead to the conclusion that, beyond any doubt, she had resigned and therefore repudiated her contract of employment. I am persuaded by this contention, and proceed to point out that an employee who leaves her workplace abruptly and goes on to stay away for three days, without explanation, not only acts irresponsibly, but also runs the risk of being regarded as having repudiated her contract of employment.

Therefore, whether or not the respondent had in fact resigned, was the crucial issue for determination in the court a quo. The Tribunal’s failure to appreciate this fact, and its consequent preoccupation with the question of whether the respondent was a probationer or a permanent employee, amounts to a misdirection in law.

I am satisfied on the facts before this Court that the respondent resigned from her job and that such resignation was accepted by the appellant. She therefore ceased to be an employee of the appellant with effect from 11 May 1999. The resignation remained effective and valid as long as the employer, i.e. the appellant, did not consent to its withdrawal.

This settled principle of law is well articulated as follows in Rustenburg Town Council v The Minister of Labour and Ors 1942 TPD 220 and 224¹:

“The giving of notice is an unilateral act: it requires no acceptance thereof or concurrence therein by the party receiving notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. If so, it seems to me to follow that notice once given is final, and cannot be withdrawn – except obviously by consent – during the time in excess of the minimum period of notice. In the present case the position was undisputed, and I think undisputable, the town clerk is the authorised agent of the applicant council empowered to receive communications to it: once therefore the resignation in question had been lodged with him, it constituted a final act of termination by the third respondent, the effects whereof he could not avoid without the permission of the applicant council.”

The authority cited above makes it clear that an employer to whom resignation has been tendered by the employee is under no obligation to expressly accept it nor does the employer have the option to reject the notice of resignation. That being the case the appellant in casu could not, as held by the court a quo, lawfully have “disregarded” the respondent’s resignation, nor “waived” its rights in that regard. The resignation being a unilateral act, the appellant clearly had no “rights” to waive. Therefore, the efforts the appellant took in order to effect a conciliation, as it now alleges, could not have amounted to the acceptance of a withdrawal of the resignation. As already stated the respondent neither accepted she had resigned, nor offered to withdraw what in her view, was a non-existent resignation.

The misdirection of the court a quo on this point of law in my view is left in no doubt.

Once it is accepted, as it must, that the respondent unilaterally repudiated her contract of employment, it becomes irrelevant whether or not she had been dismissed unlawfully or otherwise. One does not dismiss an employee who has tendered her resignation. The efforts by the appellant to reach what it termed a compromise, or conciliation, were, likewise unnecessary as long as they did not constitute an acceptance of a withdrawal of resignation, duly and properly tendered. The hearings subsequently held by the NECCS, the Labour Office and the court a quo similarly did not alter the reality of the respondent’s resignation. Therefore, to the extent that the court a quo found that the respondent’s employment had been terminated in contravention of s 2(1)(b) of SI 371/85, there is merit in the appellant’s submission that the Tribunal failed to properly take into account the relevant facts, with the result that the wrong provisions of the law were applied to the case.

For this and the other reasons, already given, the appeal succeeds.

It is in the premises ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The order of the court a quo is set aside and substituted with the following:

“The appeal be and is hereby allowed”.

SANDURA  JA: I agree.

MALABA JA: I agree.

Kantor & Immerman, appellant’s legal practitioners