The applicant was an electrical engineering company. The first respondent was its Chief Executive Officer who resigned on 8 February 2010. The second respondent was the first respondent's company also engaged in electrical engineering. The first respondent's employment contract contained clause 16.1 restraining him from competing with the applicant during employment. After resigning, the first respondent wrote to Netone (the applicant's client) on behalf of the second respondent seeking to be placed on its contractors list. The applicant sought to interdict both respondents from competing with it, arguing the first respondent was still its employee because his resignation violated clause 23.4 which required termination by mutual agreement. The first respondent had resigned without notice, citing the applicant's breach of contract for failing to pay his salary adequately since October 2009, forcing him to liquidate family assets to survive.
The applicant's application was dismissed. The applicant was ordered to pay the respondents' costs.
A letter of resignation constitutes a final, unilateral act of termination of employment that does not require acceptance by the employer to be effective. An employer cannot refuse to accept an employee's resignation, though the employer may claim damages for lack of adequate notice. A restraint of trade clause that applies only during the period of employment ceases to bind the employee once the employment relationship is terminated by resignation. Where an employer breaches the employment contract, the employee is entitled to resign unilaterally even if the contract contains provisions requiring termination by mutual agreement in cases where neither party is in breach.
The court observed that the applicant's argument regarding the first respondent's positions as director and shareholder of a subsidiary could not succeed because clause 16.1 did not extend to restraint of trade based on those positions, and in any event, the terms of those appointments had not been finalized or agreed upon. The court noted that an employee could only avoid the effects of a resignation letter by proving constructive dismissal (i.e., that the employer forced the resignation).
This case is significant in Zimbabwean employment law as it affirms the principle that resignation is a unilateral act that does not require employer acceptance to be effective. It clarifies that restraint of trade clauses limited to the period of employment do not survive the termination of the employment relationship. The case also establishes that where an employer breaches the employment contract (such as failing to pay adequate remuneration), the employee is entitled to resign unilaterally even where the contract contains clauses requiring mutual agreement for termination. It reinforces the distinction between the right to resign (which is unilateral) and the potential liability for damages arising from resignation without proper notice.