Court name
Supreme Court of Zimbabwe
Case number
SC 97 of 2004
Civil Appeal 165 of 2001

Astra Holdings (Pvt) Ltd. v Kahwa (65/01) (SC 97 of 2004, Civil Appeal 165 of 2001) [2004] ZWSC 97 (17 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 97



6


SC
97/04


















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