Court name
Supreme Court of Zimbabwe
Case number
SC 6 of 2005
Civil Appeal 406 of 2002

Lee Group of Companies v Elder (06/02) (SC 6 of 2005, Civil Appeal 406 of 2002) [2005] ZWSC 6 (06 March 2005);

Law report citations
Media neutral citation
[2005] ZWSC 6













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 224
1:


“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














1
Other
authorities include
Darlington
Muzengi v Standard Chartered Bank Zimbabwe Ltd. & Anor
SC
129/01, Simon Mutizwa
Kadada
v City of Harare

HH 26-94 and
Bulawayo
Municipality v Bulawayo Indian Sports Ground Committee
1955
SR 114