At the workplace
Wenceslaus Murape

Worker transfer is one area that is greatly misunderstood in the country. As a result it has caused a lot of problems in most institutions to the detriment of both the employers and employees. Recently, a branch manager with Truworths — Batsirai Zhuwawo — was dismissed for refusing to be transferred from Mutare to Harare.
The transfer was effected to allow Zhuwawo to undergo intensive training in store management after his branch had been experiencing stock losses.

In the past he had accepted transfers from Magunje to Marondera and then to Mutare.
This week I will examine a case where another worker refused to be transferred and was fired but later reinstated after a dispute resolution system. Leopard Rock Hotel employed Enos Mandaza in 1998 as a buyer at their office in Mutare. In January 2001, Mandaza was transferred to a hotel in Bvumba and required to work in the accounts department.

He alleged that this was a demotion from his contractual position of a buyer, and the relationship with the employer soured. Mandaza alleged that the hotel was not going to give him duties to perform, while on the other hand the employer alleged that he was just sitting and refusing to do any work.
In 2002, Leopard Rock offered Mandaza the position of administrative assistant at its Harare office, and he again refused to accept the position.

He wrote to management seeking clarity as to what duties he would be performing in Harare.
Mandaza maintained that he had been employed as a buyer, not an administrative assistant and he feared that he might not be able to perform the assigned duties. Leopard Rock then offered that the contract of employment be mutually terminated and offered a termination package in September 2003.

Mandaza then wrote to the employer making a counter proposal on the package. On October 7, 2003 the hotel wrote a letter to Mandaza terminating the contract of employment with immediate effect.
The matter was taken before a Labour Officer for conciliation. When the parties failed to be reconciled, the matter was brought before an Arbitrator.

The Arbitrator’s terms of reference were whether the termination was fair or not considering non-agreement to retrenchment, and whether there was a violation of conditions of service to constitute constructive dismissal.
In his award, the Arbitrator captured the terms of reference as: “The dispute in question relates to a complaint of constructive dismissal by the employee.”

Mandaza lost his case and he appealed to the Labour Court.
He argued that the dispute merits were that whilst the employer and him did not agree on the retrenchment package, the employer changed mind and terminated him. Mandaza submitted that the employer had made the conditions of service unbearable while transferring and gave him duties outside the normal obligations of his contract and also relocating him.

He argued that to legalise dismissal due to non-agreement of retrenchment package was not only unacceptable, but also a mockery of justice.
It is clear that the Arbitrator misdirected himself as to extend of his responsibility and mandate. He restricted himself to whether or not there was constructive dismissal.

The Arbitrator failed to determine the dispute between the parties in relation to whether the termination was fair under the circumstances.
That misdirection and failure to properly determine the matter warrants interference by a higher court.

The second term of reference can quite simply be disposed of.
Constructive dismissal in terms of the law requires that the employee terminate his contract of employment with the employer after the employer has made continued employment unbearable.

Section 12B (3) (a) provides the following.

“An employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable.”
There are allegations that the hotel made continued employment intolerable by failing to give Mandaza duties to perform in terms of the contract of employment.Mandaza was a buyer, but the employer was allegedly giving him menial duties.

There however is no need to look into Mandaza’s submissions in relation to this particular allegation of constructive dismissal because there simply wasn’t any.
It is the hotel which terminated his contract of employment and not vice-versa.
As regards whether it was fair for the hotel to terminate the contract of employment when the parties failed to agree on a package, the agreed facts were that Mandaza was transferred to the accounts department.

The hotel required him to sign a job description that did not relate to his job as a buyer, and he refused.
After a time, Leopard Rock told him that there was no vacancy for him in the accounts department.
In any case, he had been employed as a buyer and not an administrative assistant. After Mandaza refused to take up the Harare position, the employer sent him home pending a possible termination of employment by mutual consent.

Mandaza made a counter offer proposing that he be retrenched on certain terms. The next thing was a letter from Leopard Rock terminating his contract of employment.

Mandaza alleged that there was no hearing and he just received the termination letter after his counter proposal on the mutual termination issue.
The hotel submitted that there was a hearing and produced minutes of the hearing. It however failed to prove that it did conduct a hearing. Despite being challenged to provide copies of the notice to attend hearing addressed to Mandaza, the hotel failed to do so.

The letter of termination was delivered to Mandaza before the alleged date of hearing.
If a hearing had been held, reference in the dismissal letter would have been made to it. The probabilities favour a finding that the dismissal was prior to the holding of a disciplinary hearing, that is if any was ever held.

It is a fact that Mandaza was dismissed without a hearing. If he had breached any known policy, the hotel ought to have conducted a proper hearing to establish his guilt or otherwise.

Failure to hold a hearing is a procedural deficit so serious that it warrants the setting aside of the dismissal.
Accordingly, Labour Court president Ms Lilian Hove set aside the decision to dismiss Mandaza.
She ordered Leopard Rock to reinstate him into his position without loss of salary and benefits, or pay him damages in lieu of reinstatement.