Placing workers on short time

employers have been found wanting in regard to this.
Charles Shoriwa and Norman Masunga were employed by Polyfilm Plastics as sales representatives.
They were placed on short time in 2009 since the company was performing badly financially.
On May 7, 2010 they then tendered their resignations claiming that they were signing them under protest. Polyfilm refused to accept the resignations and the two were called for a hearing. Shoriwa and Masunga were complaining about their conditions of service. They were called back for work but refused and later claimed reinstatement.
The matter then eventually went for conciliation and arbitration. The issues that were decided were whether or not the complainants were illegally and wrongfully placed on short time and whether or not they were constructively dismissed. Also to be decided was whether the employer committed an unfair labour practice by withholding pay slips from December 2009 and by failing to contribute to medical aid and pension.
Up for scrutiny was also whether or not the employer unilaterally varied the conditions of service. The Arbitrator’s findings were that if an employer fails to secure agreement of workers to short time he must declare a dispute which must go for conciliation and thus the placement of Shoriwa and Masunga on short time was unlawful.
He also found that the two were constructively dismissed and should be paid punitive damages of 20 months salary.
Polyfilm then appealed against the Arbitrator’s decision at the Labour Court. It argued that the Arbitrator erred at law by finding that the two were constructively dismissed and ordering the payment of punitive damages. It also argued that the Arbitrator erred at law by ordering the payment of 20 months salary, and by finding that the matter should have been referred for arbitration since parties were not agreeing on retrenchment.
Shoriwa and Masunga on the other hand told the court that they were placed on short time without consultation and then vehicles they were using were also withdrawn.
They submitted that on May 3, 2010 the company invited them back to work and they complied but they were given totally different duties of supervising the cleaners. To them this was unilateral demotion and this then triggered their resignations. They then lodged a complaint with the Labour Officer citing constructive dismissal.
There was no settlement and the matter was referred to an independent Arbitrator, whose award was couched as follows.
“The respondent is hereby ordered to pay claimants their salaries and benefits they would have earned had they not been constructively dismissed from the day they resigned to the date of this Arbitral Award and any other statutory terminal benefits plus punitive damages of 20 months salary. The respondent is further ordered to comply with this award within 30 days from the date of receipt of the award.”
The first issue to be decided is whether there was no constructive dismissal or not. To start with, Shoriwa and Masunga were not consulted about the issue of short time. Their duties were simply changed from those of sales representative to supervisor of cleaners.
The vehicles they were using and other conditions of service were unilaterally changed.
Polyfilm also ceased to contribute to their medical aid and pensions without any agreement with them.
In Section 12B (3) (a) of the Labour Act constructive dismissal was described as follows.
“An employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”
In the English case of Courtnauld Northern Textiles Limited versus Andrew 1979 112 LR 84 EAT, the following was stated.
“An employer must not without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”
Polyfilm’s actions indeed seriously damaged the relationship of trust and confidence between the parties as the drastic changes were done without consultation or negotiations.
In the Supreme Court case of Canada Faber versus Royal Trust Co 1997 (1) SRC 846, it was held that:
“Whether an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned but has been constructively dismissed. By unilaterally seeking to make substantial changes to he essential terms of the employment contract, the employer is ceasing to meet its obligations and the employee can treat the contract as resiliated for breach and can leave.”
Polyfilm’s actions in this case were unilateral and amounted to constructive dismissal. The court went on to state (Faber Supra) the following.
“ . . . to reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the unilateral changes imposed by the employer substantially altered essential terms of the employee’s contract of employment. For this purpose, the judge must ask whether at the time the offer was made a reasonable person in the situation as the employee would have felt that the essential terms of the employment contract were being substantially changed.”
In this case the variation of their duties from sales representatives to supervise cleaners was a total change of duties and amounted to constructive dismissal.
In the Farber case (Supra) where a manager’s responsibilities were being drastically cut resulting in a considerate loss of status and prestige, it was held that this was constructive dismissal.
The only situation has occurred in this case and the court found that it amounted to constructive dismissal.
In 1911 case of Pett versus British South Africa, where a chief accountant who reported directly to the top had subordinates and flexible hours but was reassigned to work in a pool of accountants where he had no subordinates, worked under strict hours and had no longer reported directly to the top levels, although the salary remained the same.
It was held to be unlawful material variation or constructive dismissals because it resulted in substantial reduction of the employee’s status.
In view of what transpired in this case, there was material breach of contract, unfair labour practices which amounted to constructive dismissal overally.
Labour Court president Ms Betty Chidziva was of the view that the appeal by Polyfilm Plastics had no merit and dismissed it with costs, while upholding the Arbitrator’s findings.