HUNGWE J: The plaintiff issued summons claiming:
- Payment
of $135 964 920-00 being monies due and payable to the plaintiff in
respect of unpaid salary and benefits in terms of the contract of
employment which the plaintiff gave written notice to terminate beginning
1 October 2004
- Interest
from 1 January 2008 to date of payment in full calculated at the
prescribed rate
- The
release of the Isuzu KB 320 registration No. 780-824W to the plaintiff
within 48 hours of the date of this order and
- Costs
of suit.
Defendant entered an appearance to
defend.
The basis of the claim is set out in
the plaintiff's declaration as follows:-
On 29 September 2004 the plaintiff
tendered his letter of resignation from the defendant's employment and gave
three months notice with effect from 1 October 2004. Defendant accepted the
letter of resignation but instructed the plaintiff to leave employment with
immediate effect.
Plaintiff avers that it was also
part of the contract of employment between the parties that the company's motor
vehicle the plaintiff was using, an Isuzu KB 320 twin cab registration number
780-824W would be given to him after it had travelled 200 000 kilometres. As it
had clocked 220 000 km at the date of his resignation, he was entitled to the
right of ownership of the vehicle.
In its plea the defendant denied
that the plaintiff gave three months notice of resignation. It states that the
contract of employment was terminated with immediate effect on 30 September by
mutual consent after the defendant waived the three months notice period
required of the plaintiff.
Defendant counter claimed for the
payment of the sum of $11 308 680-62 being the balance of a loan due to the
defendant by the plaintiff after the deduction of the plaintiff's terminal
benefits; interest on the said sum at the prescribed rate from 4 October 2004
to date of payment and costs of suit.
At the pre-trial conference, three
issues were identified for the resolution of this dispute. There are:-
(a)
whether
the plaintiff is entitled to case in-lieu of leave and; if no;
(b)
whether
the plaintiff is entitled to $135 960-00 or any other lesser amount by way of
in lieu of leave; and
(c)
whether
the plaintiff is entitled to the Isuzu KB 320 motor vehicle identified above.
Plaintiff gave evidence on his own
behalf on the matter.
In respect of the first issue he
stated that he joined the defendant's company at a fairly
senior level in 1996 and had rose
through the ranks to become its general manager (mining) in 1998. He enjoyed the
use of a company car. He enjoyed non-contributory medical aid with his family.
He decided to resign. He handed in his letter of resignation to the Company's
Managing Director on 29 September 2004. The Managing Director requested that he
meets him to discuss who was to succeed him and other hand over take over
issues. In his letter of resignation, he pointed out that he intended to serve
the three months notice period. This effectively meant he would work up to 31
December 2004. As such, if the defendant did not require his services, he would
be entitled to three months salary in lieu of notice.
When
he went into the meeting with the Managing Director, Mr McTaggart another
director, Richard Bridges was called to attend. He says that the meeting was an
acrimonious one as Mr McTaggart became rude and upset. He claims that the
defendant's Managing Director literally dismissed him in the meeting and
ordered that he removes his property from the premises. He denied that the meeting
was conducted in an amicable manner. He felt intimidated by the two directors
and ended up signing an acknowledgement of debt and a certificate for audit
purposes. He denied that he was engaged in a private mining venture. Had he
been so found, he could be fired on the sport for conflict of interest. He
disputed that the parties agreed to a mutual termination of employment.
He
explained why he did not protest the treatment he got by saying he felt overawed
by the two directors.
On
this issue the defendant says that when McTaggart saw the letter of resignation
by the plaintiff he was concerned as to the reasons he gave. Plaintiff had
helped build the defendant up to where it was. Why was he leaving? Could it be
remuneration or other reasons that he could look into and rectify? When the
plaintiff came into his office to obtain the resignation he had asked the
plaintiff if he was involved in activities which were in conflict with those of
the defendant company. Plaintiff confirmed this to him stating that he had been
seeking tribute agreements with Zimasco. Plaintiff indicated that he had also
established a Mining Consultancy Company.
McTaggart
told the court that in view of the conflict of interest he accepted resignation
and terminated the contract of employment between the defendant and the
plaintiff. He asked the financial Director one Bridges to finalise any
financial agreements with the plaintiff as the plaintiff had taken a loan from
the defendant.
In
view of the fact that plaintiff was seeking a tributary agreement with Zimasco,
which is a client of the defendant, the plaintiff's continued presence at the
defendant's premises was in conflict with the defendant's interests. This was
the basis for the mutual termination of their relationship.
McTaggart
denied that he had promised the plaintiff ownership of an Isuzu KB double cab
once it had clocked 200 000 km. He could not do so as any disposal of the
defendant's assets required a company resolution to that effect. Previously
company managers used Toyota Hilux pick-ups. The managers had requested that
they up grade to twin cabs. The Isuzu KB 320 were bought for their use in light
of their positions. It was never agreed that ownership of the motor vehicles reverts
to them upon the motor vehicles clocking 200 000km.
He
had approached one Kudakwashe Makoni to take over the plaintiff's position. The
latter accepted. Makoni was given the KB320 to use.
As
to whether the plaintiff was dismissed and ordered to leave immediately,
McTaggart stated that up till 30 September 2004, the plaintiff enjoyed a professional
relationship with the directors of the defendant. The resignation letter tendered
by the plaintiff precipitated the meeting of 30 September 2004 in which the
directors sought to discuss whether the reason for resignation could be
addressed so as to avoid the plaintiff's departure. As the plaintiff made it
clear he was going to pursue private interests which were clearly in conflict
with the defendant, it was untenable that the plaintiff would serve the
statutory three months notice period. In any event there was a loan outstanding
which the plaintiff acknowledged. An amicable solution was found and the
parties agreed that upon an appropriate handover takeover being undertaken, the
plaintiff would leave. According to McTaggart, this took about a week. The
handover takeover involved visits to various mines. It could not be done in a day.
Richard
Christopher Bridges is the defendant's Financial Director. His evidence was
that he was in charge of Human Resources issues. In September 2004 the
plaintiff tendered exh. 1 his notice of intention to retire. A meeting was
convened by Mr McTaggart in the latter's office.
The
purpose of the meeting was to discuss the plaintiff's resignation. In exh, 1
the plaintiff indicated that he had decided to set up a mining consultancy on
his own account. Mr McTaggart wished the plaintiff to leave without giving
three months notice, pointing to a conflict of interests. In the discussion it
emerged that the plaintiff would be working in competition with the defendant
for the benefit of the same client Zimasco. Plaintiff agreed to forego the notice
period as this would permit him to start immediately on his new venture.
McTaggart asked him to go and work out the plaintiff's terminal benefits.
Plaintiff
had taken out a loan for Z$50 000 000-00 some five or six months before
September 2004. Exh. 7 is the loan agreement. He suggested that 4/12 or 5/12 of
the loan be deducted in view of the fact that the plaintiff had not met his
production target through no fault on his part. He instructed Mrs Thorpe to
calculate the plaintiff's terminal benefits and deduct the balance of the loan
from those benefits.
Mrs
Thorpe did so and produced a schedule setting out the various amounts due to
the plaintiff and to the defendant from the plaintiff. Plaintiff was presented
with the schedule which he accepted and duly signed. According to Bridges, the
plaintiff was pleased with deductions made in his favour.
Bridges
then drafted an acknowledgement of debt which the plaintiff signed in Bridges'
office. It is Exh 6 of the papers and is dated 30 September 2004.
According
to Bridges, it would be unusual for an employee to acquire ownership of a
company vehicle on the basis that it has done 200 000km. He denied the
existence of such a policy at defendant. He denied that an offer was made to
him along those lines.
He
only learnt of the plaintiff's claims through a letter of demand from the
plaintiff's legal practitioners, exh 7.
According
to Bridges, it could be difficult for McTaggart to donate the motor vehicle
since he would be acting without the knowledge or consent of other directors or
shareholders. Zimasco and two other companies are the shareholders of the
defendant. Their consent through a company resolution would have been required to
dispose of assets in the manner claimed by the plaintiff.
Mrs
Rachael Thorpe is the wages Administrator of the defendant. She did the calculations
on exh.6 on Bridges instruction. Plaintiff signed it. She then drafted exh. 8
which she and the plaintiff signed. She telephoned the plaintiff to follow up
on payments of the acknowledged debt to no avail till the defendant's legal
practitioners wrote exh. 9 to the plaintiff.
Witnesses
for the defendant gave their evidence well. They were not shaken by counsel's
very thorough cross-examination. They impressed the court as candid witness deposing to matters within their
knowledge.
Their
evidence flowed and impressed as being consistent with probabilities. They
corroborated each other in material respects.
As
an example of this is their evidence as to how the meeting with McTaggart
progressed. Plaintiff and the two directors attending this meeting. The subject
of the meeting was the plaintiff's resignation. One of the directors had said
that the plaintiff was involved in a mining venture and in competition with the
defendant. Prior to the meeting there was no evidence of conflict of interest.
They enjoyed good relations. It is the plaintiff who confirmed his interest in
a mining consultancy as well as other mining interests. When their worst fears
were confirmed by the plaintiff, they did not waste time to make a proposal.
The proposal was to the effect that the plaintiff needed not see out the three
months notice period as he had a loan outstanding. Plaintiff accepted this
proposal. He signed away whatever rights he may have against the defendant.
There is no suggestion that exh. 6 and 8 were signed under duress or induced by
fraud. In short the plaintiff by signing exh(s). 6 and 8 waived his rights to a
notice period by mutual agreement.
Plaintiff
claims that the meeting called to discuss his resignation quickly turned into
an inquiry where he was standing accused of conflict of interest. I am unable
to agree. If the plaintiff had been dismissed as he argues, he would not have
signed the documents which he signed acknowledging indebtedness. Plaintiff was
not a timid ordinary worker but a general manager. He knew his rights. He
waived his rights as he was indebted to the company over the loan which he took
out. If he was entitled to cash-in-lieu on three months' notice why would he
signed an acknowledgement of debt of a lesser amount? In my view this shows
that the parties agreed to terminate mutually their relationship. Plaintiff
waived his rights and agreed to leave the employ of the defendant on the terms
set out in their discussion. He is not entitled at this stage to claim that
which he renounced and expressly signed away.
As
for the entitlement to the Isuzu twin cab KB 320 registration number 780-824W
the plaintiff came nowhere near proving this as an entitlement. It remains
company's property.
In
the result the plaintiff's claim is dismissed with costs. On the other hand I
find that the defendant's counter-claim succeeds with costs.
It
shall so be ordered.
Sawyer & Mkushi, plaintiff's legal practitioners
Danzinger
and Partners, defendant's legal
practitioners
