Matema v Zimbabwe National Water Authority (HH 103 of 2004) [2004] ZWHHC 103 (11 May 2004)

PETRONELLA MATEMA versus ZIMBABWE NATIONAL WATER AUTHORITY HH 103/2004 HC 10953/01 HIGH COURT OF ZIMBABWE MAKARAU J Harare 29 April and 12 May 2004 Opposed Application Mr Debwe, for applicant Mr Dondo, for respondent. MAKARAU J: The applicant was employed by the Regional Water Authority sometime in 1994. By statute, the Regional Water Authority ceased to exist on 1 January 2000. The respondent replaced it. Staff from the now defunct Regional Water Authority was transferred to the payroll of the newly established respondent. The applicant was one such member of staff who transferred from the Regional Water Authority to the respondent. In December 2000, the respondent advised the applicant of its intention to transfer her from Chiredzi to its Masvingo offices with effect from 1 January 2001. The applicant is a married woman whose husband is employed in Chiredzi. Her children attend school in Chiredzi and one of them is a chronic patient who needs the constant attention of the applicant. For these genuine gender-related reasons, the applicant requested the respondent to reconsider her transfer from Chiredzi. The respondent insisted. The applicant reluctantly transferred to Masvingo but before she completed a month at her new posting, she, on 21 January 2001, wrote to the respondent tendering her resignation with effect from 23 January 2001. She requested the respondent to waive her notice period. She further indicated in the letter of resignation that she felt she was entitled to a retrenchment package which, she hoped to receive in due course. Correspondence was then exchanged between the parties’ legal practitioners on whether the applicant was entitled to a retrenchment package. In the correspondence, the applicant insisted that she was entitled to the package whilst the respondent advised her that the HH 103/2004 HC 10953/01 period within which employees were to exercise the option. Aggrieved by the stance taken by the respondent, the applicant filed this application. In the draft, she seeks an order compelling the respondent to pay her terminal benefits calculated in terms of the formula used by the respondent to pay severance packages to those employees who took up the option to be retrenched. In my view, this is evidently another way of seeking an order compelling the respondent to pay her the retrenchment package. It is not clear on the papers before me when the terms of the option package were made known to the applicant. She alleges that this was in December 2000 during a staff meeting. The respondent in turn alleges that the option period ran from January 2000 to December 2000 and that the applicant was aware of this before December 2000. Clearly, this is a dispute of fact that I cannot resolve on the basis of the papers without doing an injustice to one or both of the parties. Insufficient facts have been placed before me by both parties to enable me to make a finding one way or the other. I will not try to resolve this dispute. It is trite that the onus is on the applicant to make out her case on the papers as she deliberately chose to bring application proceedings instead of launching trial proceedings. Her case turns on whether she exercised the option to take a severance package during the lifetime of the option. As such, it was incumbent upon her to prove that the option was still open and that she sought to exercise it before it lapsed. She was aware at the time she filed the application that the respondent was disputing her allegation that the option was still open to her up to the date of her resignation. A letter to that effect had been written to her legal practitioners. She actually attached that letter to her application to show the alleged intransigence of the respondent. With that knowledge, she was evidently ill advised to bring application proceedings without adducing further evidence tending to show that the respondent’s contentions that the option had lapsed are clearly wrong. On this basis alone, I would dismiss the application. There is however, another ground upon which the application flounders. It is trite that resignation by an employee is a lawful method by which a contract of employment may be terminated. That the applicant before me resigned from employment is not in dispute. Her letter of 21 January 2001 is unequivocal. It is unconditional. It reads: “Re Mrs P Matema: Resignation You are kindly advised that due to the ongoing conditions of employment, I am unable to accept a new contract with the Zimbabwe National Water Authority and I will thus HH 103/2004 HC 10953/01 hereby resign from your organization with effect from 23rd February 2001. Can you waive my notice since I have 19 days’ leave. As I indicated from my previous correspondences I do feel and strongly submit that I am entitled to a termination package which I hope to receive in due course.” The effect of the above letter was to terminate the employer/employee relationship between the applicant and the respondent even before the resignation was accepted by the respondent. (See Muzengi v Standard Chartered Bank and Another 2000 (2) ZLR 137 (H)). The applicant appears to labour under the belief that even after resigning, she could still opt to “receive” a retrenchment package. In this belief, she is wrong. The term “retrenchment package” is a creature of the Labour Act and its predecessors and the regulations made thereunder. It means no more than a severance payment made by the mployer to the employee as a result of the mutual agreement to terminate the contract of employment, or the termination of the contract at the instance of the employer but with the approval of the Minister administering the Act. (See Continental Fashions (Pvt) Ltd v Mupfururi & Others 1997 (2) ZLR 405 (SC)). Retrenchment and resignation are two modes by which a contract of employment may be terminated. They are separate and distinct one from the other. They cannot be co-joined nor co-exist. They cannot be employed consecutively to end one contract of employment, as the use of one will effectively terminate the contract of employment. Thus while it sounds patently ludicrous to suggest that an employee who has received a severance package may still lawfully resign, the reverse is equally ludicrous at law. The same position obtains between retrenchment and retirement. This situation faced the Supreme Court in Mutare Board and Paper Mills (Pvt) Ltd v Kodzanayi 2000 (1) ZLR 641 (SC) where at 644H-645A GUBBAY CJ (as he then was), had this to say: “In terms of s 17 of the Labour Relations Act [Chapter 28:01] the Minister is empowered to make regulations dealing with both retirement and retrenchment. The two concepts are separate and distinct, albeit each results in a termination of the contract of employment.” Having resigned from the employment of the respondent, the applicant could not seek to terminate the “dead” contract by way of retrenchment. The option was no longer available to her by virtue of her pre-mature actions in resigning. The contract of employment was lawfully terminated before the option to proceed by way of retrenchment was taken. HH 103/2004 HC 10953/01 It would appear that the applicant was aware of the predicament that she had placed herself in by resigning. This appears from the way in which the draft order is cast. The order seeks payment of terminal benefits. These are benefits paid to employees upon the termination of a contract of employment. Craftily, the applicant seeks to equate these with the payment she would have received had she been retrenched. There is no basis for calculating her terminal benefits in this manner following a resignation. No severance payment is due after a resignation. On the basis of the foregoing, the application cannot succeed. In the result, I make the following order: 1. 2. The application is dismissed. The applicant is to pay the respondent’s costs. Muzenda & Partners, the applicant’s legal practitioners Chinamasa Mudimu & Chinogwenya, the respondent’s legal practitioners