This is an appeal against the whole judgment of the Labour
Court of Zimbabwe handed down by CHIDZIVA J on 28 June 2013 at Harare. The
appellant prays that the appeal succeeds and that the respondent be ordered to
pay the costs of suit on a higher scale.
After hearing counsel for both parties we dismissed the
appeal with costs on a higher scale and stated that reasons would follow.
These are they.
The facts and background to this matter are as follows:
The appellant was employed by the respondent as a Finance
Director from May 2007 up to February 2012. She was entitled to a number of
benefits, one of them being payment of school fees for both of her children. In
February 2012, the appellant had a dispute with the respondent's Managing
Director and General Manager. A meeting that was held between the appellant and
the General Manager resulted in her being sent home on suspension.
On 13 February 2012, the appellant completed a document
called “Pension Withdrawal Claim Form” in terms of which she indicated, in
writing, that the reason for the withdrawal of her pension benefits was that
she was “leaving Conquip.” The date
of such withdrawal was indicated as 13 February 2012. The withdrawal form
was presented to the respondent's General Manager for the latter to complete
the section required to be completed by a designated company official. The
General Manager duly completed and signed the form which was then presented to
Marsh Employee Benefits Zimbabwe (Pvt) Ltd. The pension company, in turn,
processed and released the pension contributions to the appellant.
On 16 February 2012, the appellant was given a letter
inviting her to attend a disciplinary hearing on 24 February 2012 at the
respondent's premises. She then approached her legal practitioner who raised a
number of procedural issues which, in his view, would render the hearing
unprocedural. The hearing was subsequently aborted upon the realization that
the appellant had indicated on the pension claim form that she was leaving
Conquip, therefore, resigning from
her job.
The appellant disputed that she had resigned from her
employment, and stated that she had simply withdrawn herself from membership of
the pension scheme because she needed money to pay school fees for her child.
She contended that the Marsh Employee Benefits Scheme was an employee's scheme
(not the respondent's) and was meant to benefit the employee. As such, she
further argued, termination of membership with the pension scheme did not
amount to unilateral termination of her employment.
The dispute was referred for conciliation and the outcome
was the issuance of a certificate of no settlement. This led to the matter
being referred for arbitration. The arbitrator ruled that the appellant was not
unfairly dismissed but had resigned from her employment. The appellant was
disgruntled at this decision and appealed to the Labour Court on the main
ground that:
“The Arbitrator erred at law by making a finding that the
Appellant had resigned from employment when the document that was used as
evidence thereof is not a resignation letter nor is it addressed to the
respondent.”
The Labour Court upheld the arbitrator's decision and
determined that the appellant was not unfairly dismissed. Rather, that she
unilaterally terminated her employment contract through her resignation as was
indicated in the Pension Withdrawal form that she had signed.
The appellant was not satisfied by the decision of the
court a quo hence the present appeal.
The issue which falls for determination is whether or not
the court a quo misdirected itself by concluding that the appellant resigned
from her employment with the respondent.
The appellant submitted that the court a quo misdirected
itself by concluding that by signing the Pension Withdrawal form she had
resigned from her employment. She boldly asserts that the statement 'leaving
Conquip' that she gave as a reason
for seeking to withdraw her pension contributions did not mean that she was
resigning from her employment.
The respondent, on the other hand, contends that the
appellant terminated her employment before the conclusion of the disciplinary
hearing that had been called by it. Further, that the true meaning of the words
'leaving Conquip' was that she was resigning from her
employment and not anything else.
It is, in this respect, pertinent to first define what a
resignation is and then what form it should take. The Oxford Advanced Learner's
Dictionary defines resignation as:
“an act of
giving up one's job or position.”
The form a notice of resignation should take is not 'cast
in stone' as it were. One can resign verbally, by a letter, or through whatever
way may be preferred as long as the communication is transmitted to the correct
recipient.
In casu, the Pension Withdrawal form which was filled by
the appellant contained a section which required one to state the reason why he
or she wished to withdraw the pension contributions or why they no longer
wanted to be part of the pension scheme. This is where the appellant stated her
reason as “leaving Conquip.” Taking
the Oxford Dictionary definition of a resignation I am satisfied that this
reason denoted an 'act', by the appellant, of giving up her job.
When the form, which alluded to this act of resignation,
was then presented to the General Manager of Conquip for her signature, as a
prerequisite to the pension withdrawal, there can, in my view, be no doubt that
she was, by this token, made aware that the appellant was tendering her
resignation. The appellant was both the Financial Director of the respondent
and Principal Director of the Pension Fund in question. She must therefore have
fully appreciated both the requirements for, and consequences of, claiming her
pension contributions. Thus, from the moment the General Manager affixed her
signature to the form it could no longer be argued that the appellant's
resignation was not communicated to the employer and acknowledged.
In the case of Jakazi & Anor v The Anglican Church of
the Province of Central Africa SC10-13
this Court stated that:
“The law is clear. Resignation is a unilateral act which
takes effect upon being communicated.”
On the basis of this authority, I find that the appellant's
use of the statement 'leaving Conquip' implied a unilateral act of resignation,
and that it took effect the moment it was communicated to and acknowledged by,
the respondent's General Manager.
The point was raised in argument as to whether or not the
General Manager was a responsible authority for purposes of receiving the
appellant's resignation.
I take the view that the General Manager was indeed such an
authority and that she could, and did, properly accept the resignation on
behalf of the employer. The Pension Withdrawal claim form signed by the
appellant had a section requiring the affixing thereto of a company official's
signature. This was the part that Christine Moorcroft signed as the General
Manager of the company.
I am satisfied that she was a proper authority to receive
the notice of resignation.
I have no doubt in my mind that in addition to being a
pension claim form directed to the pension company concerned, the same document
carried a clear and unequivocal message or notice directed to the respondent,
that the appellant was tendering her resignation. To suggest that it was not such
a notice by virtue of its composite purpose would, in my view, be to
unnecessarily emphasize form over substance.
As indicated earlier, there is no set format or method of
communicating the act of resignation.
It is, in my view, noteworthy that Marsh Employee Benefits
Zimbabwe also understood the appellant to be resigning from her employment with
the respondent and reacted accordingly. A letter which was written on its
behalf to Conquip, and dated 22
February 2012, referenced the subject matter thereof as follows:
“Conquip
Pension Fund
Resignation: Makarutse Eunice”
There is no dispute that the letter referred to the
appellant.
In that letter, Marsh Employee Benefits Zimbabwe advised
Conquip that they had transferred the sum of US$7,976=93 into the appellant's
Standard Chartered Bank account because she had resigned from the company. The
letter called upon the respondent to similarly release the part of the
appellant's pension contributions that it, as her employer, had contributed on
her behalf. There apparently were only three grounds upon which the Marsh
Employee Benefits Scheme could release pension funds and these were;
(i) Death of the employee;
(ii) His or her retirement; or
(iii) Resignation from employment.
It is not in dispute that the appellant was neither dead
nor was she retiring. Therefore, the only way she could have withdrawn her
pension benefits was through her resignation.
Because payment of pension subscriptions and the
beneficiary's continued employment with the relevant employer are inextricably
linked, the pension withdrawal accorded fully with the statement that she was
'leaving Conquip'. A person who
leaves his or her employment cannot expect that his or her employment-linked
pension subscriptions would continue to be paid by their former employer.
By asserting in view of all this that the real reason she
wished to withdraw her pension contributions was the need to raise school fees
for her child, the appellant is effectively suggesting that the respondent
should have read into the words 'leaving
Conquip' a meaning completely different from what the words actually denoted.
Further, that the respondent should have authorized the release of pension
contributions that in reality would have been claimed under false pretences.
I find such suggestion to be both fanciful and totally
devoid of any logical basis.
It appears to me that the conduct of the appellant in this
respect smacks of a lack of integrity and is not what one may expect from a
person holding the type of senior position that she held with the respondent.
Thus, when all is told, I find that the appellant properly,
or at the very least substantially, notified her employer through the Pension
Withdrawal form that she was leaving therefore resigning from her employment
with Conquip. Further, that the
application itself, for pension contributions, served to buttress the notice of
resignation, and, therefore, put the matter beyond any doubt.
In the light of this, I find that the appeal has
no merit and ought to be dismissed.
