Taurai Mrewa, Author at Tau Mrewa

ZIMPLATS v Ronald Godide (SC 2 – 2016)

“I agree with the submissions by Mr Mpofu that the right to dismiss is available at common law and that such right is entrenched. The employer at its election may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion”.

Introduction

ZIMPLATS v Ronald Godide (SC 2 – 2016) deals with the discretion of an employer to dismiss an employee upon taking a serious view of the offence committed. It also explains why an employer is entitled to look at the previous disciplinary record of the employee.

Facts

The respondent employee was a mechanical foreman for ZIMPLATS (Zimbabwe Platinum Mines (Private) Limited). In the process of resolving a breakdown, the employee secured a rubber with worn-out bolts instead of using the new ones. This resulted in another breakdown. This was on 14 March 2022. Production was lost because of this breakdown. Later the employee was charged with gross incompetence or inefficiency in the performance of his duties. The employee had earlier on received a final warning for another offence. He was then dismissed. It was the disciplinary committee’s finding that the employee was sitting on a final warning letter which necessitated a dismissal. Internal appeals failed. The Labour Court was of the view that the final warning letter had been issued for a different offence as a result it was not applicable to the disciplinary proceedings that had led to the dismissal of the employee. It set aside the dismissal and imposed a final warning. Aggrieved ZIMPLATS petitioned the Supreme Court.

Law

The Supreme Court upheld the employer’s discretion to dismiss an employee upon a finding that the conduct of the employee goes to the root of the employment relationship. It buttressed this common law position as follows:

“At common law an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion.”

It added that the discretion of an employer can only be substituted only if the employer acted on a wrong principle or of the discretion was irrational. Once an employer has taken a serious view of the matter dismissal may be warranted despite what the code of conduct says:

“The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the code does not provide for dismissal as a penalty”.

The respondent employee’s argument was that the final warning letter he was sitting on ought not to have been considered in coming up with an ultimate penalty. The Supreme Court disagreed. It argued that the employee’s conduct in the working environment, including previous disciplinary records, must be considered when the employer exercises the discretion of imposing an ultimate penalty.

Conclusion

The court’s conclusion was that the appeal was well-placed, and it upheld it.

Own Comment

ZIMPLATS v Ronald Godide SC 2 – 2016 is a case one cannot ignore. It contains several lessons. The first lesson is that the employer has the right to choose an appropriate penalty when an employee has been dismissed. This discretion to dismiss can go against the penalties prescribed in a code of conduct. This is because, at common law, the employer has the discretion to dismiss an employee upon taking a serious view of the matter. This position has also been held and supported in Mashonaland Turf Club v George Mutangadura (SC 5/2012) wherein the Supreme court noted:

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

The second lesson is that an employer can take into consideration previous warning letters given to an employee in the exercise of the discretion to dismiss. It is not a procedural irregularity to consider how an employee was previously performing before issuing a penalty. The second lesson is also buttressed in other Supreme Court Judgements such as Fraser Muyaka v BAK Logistics (Pvt) Ltd (SC 39/2017) where the court held:

“The employee’s previous disciplinary record is a relevant consideration in terms of s 12B (4) of the Labour Act”.

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CIMAS v Tapiwa Nyandoro (SC 6 – 2016)

“The circumstances of the case show that the appellant did not act unfairly in not serving the respondent with a notice of removal of the suspension. The respondent behaved in a manner that showed that he no longer regarded himself as the appellant’s employee. Not only did he take employment with another company whilst on suspension, he wrote to the appellant soon after he was found not guilty of the alleged misconduct for which he had been suspended requesting for an advance payment of part of a severance package.”

Introduction

This case illustrates two things. It, first of all, shows the meaning of reinstatement in the context of the National Code which is reinstatement that emanates from a finding of not guilty after a disciplinary hearing. In addition, it also deals with a repudiation of a contract by an employee.

The Facts

The respondent employee was a Managing Director for the Health Care Division of the Appellant company. On 23 July 2008, he was suspended from duty after an allegation that he had violated the National Code (SI 15 of 2006). The disciplinary hearing that followed, concluded that he was not guilty of the offences charged. After the acquittal, he wrote to the appellant requesting payment of money which he said would form part of a separation package to be agreed between the parties. The respondent did not insist at that time on being taken back to work. The appellant went ahead and deposited the money into the respondent’s bank account. The Company did not respond to the respondent’s letter of what he suggested would be an exit package to be agreed. It also did not make a counteroffer on the exit package. Apparently, while on suspension, it became evident that the employee was working for another company.

Along the way, the respondent employee took the view that the employer had committed an unfair labour practice in that it had refused to reinstate him to his job after a finding of not guilty. The arbitrator ordered the appellant company to reinstate him in his former position without loss of salary and benefits. The company appealed to the Labour Court and the Respondent employee cross-appealed. Both the main appeal and the cross-appeal were dismissed. This then founded the Supreme Court proceedings.

The Law

Reinstatement in terms of 6(2)(b) of the National Code

It was the Supreme Court’s finding that depending on the circumstances of a case an employer is not under an obligation to serve the employee with a notice of removal of the suspension after he or she is found not guilty of the alleged misconduct for which he or she was suspended. It said:

“The appellant was not under an obligation to serve the notice on the respondent reinstating him to the job following his acquittal of the charges of misconduct if the circumstances of the case did not allow for such a reinstatement. “

As regards the meaning of the word reinstatement in the section, the court said that it refers to the removal of the suspension so that the employee could resume work. The payment of damages in lieu of reinstatement does not come into play. In the ordinary course, the payment of damages in lieu of reinstatement would only apply if the employee was wrongfully dismissed whereupon such a finding compels the employer to either reinstate or pay damages.

The conduct of the employee

It was the court’s view that the employee had behaved in a manner that showed that he no longer regarded himself as the appellant’s employee. He took employment with another company whilst on suspension. He wrote to the appellant soon after he was found not guilty requesting for an advance payment of part of a severance package. This showed that he was not willing to be back with his former employer. Under these circumstances the employer was entitled not to serve him with a notice of removal of the suspension in terms of s 6(2)(b) of the Code.

Conclusion

The court concluded that the employer had not erred and that no unfair labour practice was committed.

Own Comment

The judgement was well reasoned in our view, an employer is not under an obligation to reinstate an employee who has shown an unequivocal intention not to be part of the employer. The lesson for the employees is that taking employment under company “A” whilst you are still employed with company “B” terminates employment with company “B”. In addition, there is also the lesson that reinstatement in terms of a code of conduct does not entitle an employee to damages in lieu of reinstatement.

[1] CIMAS Medical Aid Society v Tapiwa Nyandoro SC6 – 2016.

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Browne v Tanganda Tea Company (SC 22-16)

“In terms of ss 16 (1) and (3) of the Prescription Act [Chapter 8:11] prescription shall commence to run as soon as a debt is due. Moreover, a debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

Introduction

The matter deals with, amongst other pertinent legal issues, the prescription of facts leading to a charge. The judgement shows that the prescription of a charge starts to run from the time the employer becomes aware of the facts forming the charge. If an employer arraigns an employee before a disciplinary hearing within a period of two years after the offence came to light, prescription cannot be successfully pleaded.

Facts

The appellant was employed by the Respondent company in 1997. He was an Estates Coffee Manager. In 2000 he became the Agricultural Manager. In 2007 he became General Manager of Agriculture and in 2010, he was appointed Director. In 2011 he was charged with gross incompetence and negligence in the performance of his work and violating the respondent’s Anti-Sexual Harassment policy. He was accused of having improper relations with two junior members of staff. He was eventually dismissed, and he unsuccessfully appealed to the Labour Court. The outcome of the Labour Court appeal resulted in Supreme Court dispute.

The Law

Constitution of the Disciplinary Committee

The employee’s first ground of appeal was that the committee that presided over the hearing was not properly constituted. This was so because there was no “fellow employee” present in the hearing. Unfortunately for the appellant employee, this argument had not been raised in the initial disciplinary hearing. At the Labour Court, the employee could not explain why this was so. As a result, the Supreme Court argued:

“A party cannot abandon an argument, or like in this case, a ground of appeal, in a lower court and hope to validly resuscitate the same ground on appeal to a superior court”.

Prescription of the charges

One of the charges laid against the employee related to the way he handled the planting of macadamia. The planting of the macadamia seedlings was done in 2007 and the employee was charged in October 2011. The appellant employee contended that the charges had prescribed. The court disagreed. It noted that prescription applies when a creditor becomes fully aware of the identity of the debtor and the facts from which the debt arises. In the absence of such, the prescription does not run. The court emphasised:

The above paragraph shows that prescription begins when an employer is fully aware of the offence. At times investigations take time to conclude like what happened in this case, and until the employer has the full information, the prescription does not begin.

Sexual Misconduct

The employee averred that this charge had also been prescribed having occurred since 2009 but it was the courts finding that the issue had been brought to the employer’s attention in 2011. The prescription argument failed.

Regarding the merits of the charges, the Supreme Court concluded that all had been proven beyond a reasonable doubt. It concluded:

“Labour matters being civil in nature, all that had to be proved in casu was whether or not, on a balance of probabilities, the respondent had proved the charges in question, against the appellant. I have found that the respondent did so.”

Conclusion

The appeal was dismissed.

Own Comment

This case, in our view clearly demonstrates two things. First, disciplinary charges do prescribe. If an employer knows of an offence committed by an employee and does nothing to charge and discipline the employee prescription starts to run. If under those circumstances, two years elapse, the offence prescribes and cannot be raised in a judicial forum. If on the contrary as what happened in Browne v Tanganda Tea Company SC 22-16 the employer is not aware of the offence, the prescription does not run.

The case also demonstrates the importance of correctly following the disciplinary processes. The Supreme Court commended the fact that the hearing was conducted as if it was a full trial before a judge. There were no procedural irregularities in the process.

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Parties to an Employment Contract

Labour law is about an employer and an employee. These are essentially the main parties to an employment relationship. This whole book explores the relationship between these parties to the employment relationship. It assesses the various laws behind the relationship. Noteworthy, it is not easy to define whether one is an employee or something else. Equally so, it may also be difficult to pinpoint who an employer is if one considers the existence of labour broking relationships.

In this section, we look at what constitutes an employee and the various tests that have been buttressed by the courts in showing whether an employer-employee relationship exists between parties. We also look at the relevance of being an employee or employer in labour law and in this respect, we note that once a person, juristic or otherwise, is deemed an employer or an employee certain duties flow from this relationship.

An Employee

An employee is defined under Section 1 of the Labour Act (Chapter 28.01) specifically as follows:

“employee” means any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act, and includes a person performing work or services for another person—

(a) in circumstances where even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking; or

(b) in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services; (Own Emphasis).

From the definition above, an employee must perform work or service for the benefit of getting remuneration. The employee may even supply his tools.^[1] Section 1 (a) includes those people who work under “flexible conditions of service”. We submit that such flexible work conditions include arrangements where employees work from home, flexible working hours for example where one starts work at 9 am rather than 8 am, moving from full-time to part-time work amongst a host of other arrangements that the employer may have with his or her employees.

Section 1(b) specifically excludes an independent contractor and hirer of services. This is important because an independent contractor may look like an employee in a lot of respects and if one is not careful the unfortunate conclusion may be that an independent contractor arrangement is an employment relationship under the purview of the Labour Act. As mentioned above, the distinction between an employee and an independent contractor is important in that legal duties flow from being an employee which duties do not apply when one is an independent contractor. Equally so, the jurisdiction of Designated Agents, Labour Officers, and the Labour Court is excluded once an independent contractor relationship is in existence.^[2]

Alive to the fact that it is not always easy to distinguish between an employee and an independent contractor our courts have devised various tests to be applied to ascertain the kind of relationship in existence. The three major tests are discussed below.

Supervision and Control Test

This test looks at whether an individual is under the direct control and supervision of another. If there is no such supervision and control, there is a greater likelihood that the individual is an independent contractor. Following the same reasoning, if an individual is under the supervision and control of another, an employer-employee relationship is in existence. Control, in this case, envisages a situation where one must abide by the instructions not only in the things, he or she must do but, in the time, and way he or she must do them.^[3] The presence of supervision and control is seen as an imperative component of the employer-employee relationship such that open defiance of an employer’s lawful orders constitutes a dismissible offence.[4].

In the South African case of Stein v Rising Tide Productions (CC),^{^[5]} the court acknowledged that whilst supervision and control are important aspects of the employer-employee relationship, the two aspects are not exhaustive. As a result of this observation by the court in various jurisdictions other tests have been devised to determine if an employment relationship exists. These tests include the unpopular organisation test and the dominant impression tests discussed hereunder.

The Organisation Test

The organisation test connects an individual to an organisation and uses this nexus to determine if an employment relationship exists or not. If an individual is connected to an organisation that they are rendering a service to, an employment relationship is likely to be deduced. On the other hand, if this relationship is remote, an independent contractor arrangement is likely to be obtaining. This the South African case of R v AMCA Services Ltd^[6] this test was rejected for being vague. We submit that the court’s observation was correct because there is more to being an employee than being part and parcel of an entity. The widely accepted test, in Zimbabwe and in South Africa has been the dominant impression test discussed hereunder.

The Dominant Impression Test

The widely used test for determining whether an employment relationship is in existence is the dominant impression test. The test tends to borrow from all the tests discussed above.^[7] It posits that if there is supervision and control of a person there is a greater likelihood that an employment relationship is in existence. Equally so, it also looks at the existence of an organisation. In this regard, the fact that the individual is part and parcel of an organisation points to the greater likelihood of an employment relationship.^[8] There is no single factor that should be used in determining whether there is an employment relationship.

The test emphasises what was said by the Supreme Court in Masango & Others v Kenneth & Another (SC 307/13) where the court remarked:

“…. what the parties call each other in such a contractual relationship, or what they perceive their relationship to be is not decisive and may actually be irrelevant. The court looks at the totality of the evidence and all the circumstances to determine the true nature of the relationship.”

In essence, all the evidence presented to the court will be assessed to determine the type of relationship existing between the parties. Unlike in all the tests discussed thus far, one single factor is not decisive. Factors that a court may consider include nature of rewarding the person, whether it was by way of a commission or a wage. The nature of the business and how it was conducted.

We submit that not all industries can accommodate independent contractors. As an example, it may be practical to have an independent contractor in insurance sales compared to the mining sector this is because, an insurance salesperson can easily work independent of the employer whereas a miner may need to be constantly under the supervision of the employer. In considering all the factors surrounding the relationship, a court is compelled to look at the totality of evidence presented to it.

The Supreme Court in Masango & Others v Kenneth & Another (SC 307/13) looked at factors such as the fact the person was part of an organisation but the degree of control and pointed to the existence of an independent contractor relationship. The fact that the person called himself an employee did not change the fact. The totality of the evidence pointed to the existence of an independent contractor relationship.

Duties applicable to an employer-employee relationship

The presence of an employer-employee relationship comes with legal consequences. One of the immediate consequences is that the labour laws of the country will govern the relationship. In addition, several duties and responsibilities accrue to an employment relationship. These duties apply to both an employer and an employee. Some of the duties are statutory whereas others accrue from the common law.

Generally, every party to an employment relationship is under a common law and statutory duty to respect and abide by his or her contract of the employment. This duty flows from the common law and equally applies to the employer. At common law, the sanctity of the contract of employment is something that has been respected since Roman times. This sanctity of the contract is aptly explained in Printing and Numerical Registering Co v Sampson (1875) LR 19 as follows:

“If there is one thing more than another that public policy requires, it is that man of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that the courts are not likely to interfere with this freedom of contract.”

Further, in Magodora & Others v CARE International Zimbabwe (SC 191/13) the court remarked:

“It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.”

It follows therefore that public policy demands that once an employer-employee relationship is established the contract between the parties must be respected. The positions remain intact unless the contract is void or voidable on legal grounds.

The relevance of being an employee

As indicated above, several duties accrue to an employee. The duty of fidelity is one of the fundamental duties that an employee owes an employer from the moment an employment relationship comes into existence. This forms the primary basis of all the other duties to be discussed herein. Without being loyal to the employer an employee cannot further the interests of the employer. Any act or omission by an employee that breaches the employee’s duty of loyalty or fidelity repudiates a contract of employment giving the employer a right to follow the necessary procedure to dismiss the employer.

Respect the employer’s lawful authority

This is a fundamental duty an employee has regarding his or her employer. It is a duty of subordination. Without this legal duty, there is no employment contract. The supervision and control test discussed above is the basis for this duty.^[9] It emanates from the common law. So fundamental is this duty that it has been codified, in one form or the other in several codes of conduct applying in Zimbabwe. In this respect, the phrase “willful disobedience to a lawful order given by the employer” is a quite common offence designated in several codes of conduct.

In NEC Catering Industry v Kundeya & Others (SC 35 of 2016) theSupreme Court argued that the refusal to follow the employer’s lawful instructions can render an employee incapable of performing his or her employer’s work thereby repudiating the contract of employment. The case also points to the fact that when the disobedience was not in error nor on the spur of the moment, but carefully considered and relentless over a long period of time the employer may be justified in dismissing the employee.^[10]

Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 established the test to be applied when an employee is alleged to be disobedient. Here the court established:

“… wilful disobedience or wilful misconduct, the words in my view connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

Respecting the employer’s authority, therefore, is a cardinal duty that every employee owes the employer. Failure to respect this authority vitiates the employer-employee relationship giving the employer the discretion to end the employment marriage.

Placing personal services at the disposal of the employer

Closely related to the employee’s duty to follow the employer’s instructions is the duty to be available for work. Primarily, an employee is in contract with the employer so that he can be provided work in return for a wage or a salary.^[11] Failure to put the employees’ services at the disposal of the employer also constitutes a fundamental breach of the employment contract. So fundamental is this duty that section 12A(6)(a) authorises an employer to deduct money equivalent to the days that an employee is not available for work.^[12]

In addition to this provision, absenteeism from work is also codified in various codes of conduct as an offence that can warrant the dismissal of the employee. The National Code of Conduct (Statutory Instrument 15 of 2006) prescribes that “absence from work for a period of five or more working days without leave or reasonable cause in a year”^[13] is a dismissible offence. This position in terms of the South African law is not different, the Labour Appeal Court of South Africa remarked in Wyeth SA (Pty) Ltd v Manqele and Others[14] that:

“At common law an employee in a contract of employment commits a breach thereof he reneges on his duty of placing his personal service at the disposal of the employer. The employer on the other hand breaches the contract of employment if he reneges on his undertaking to pay the salary or wages agreed in consideration for services rendered.”

We submit that, once an employee puts his or services at the disposal of the employer, it becomes the duty of the employer to utilize those services. When an employer fails to utilize the services correctly put at his or her disposal by an employee, no liability accrues to the employee in compensation forthe employer’s failure.

Competence

Not only should an employee be available for work. He or she should work competently. The employee should have the capacity to render the services competently. It is an offence in almost every code of conduct and indeed in terms of the national code of conduct to mislead an employer that one holds a certain skill when such exist in an employee’s skills set.^[15] It is a dismissible offence for an employee to be incompetent.

An Employer

Defining an employer is arguably less controversial compared to defining an employee. The Labour Act defines an employer as follows:

“employer” means any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes—

(a) the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed; and

(b) the judicial manager of such person appointed in terms of the Companies Act [Chapter 24:03];

(c) the liquidator or trustee of the insolvent estate of such person, if authorized to carry on the business of such person by—

(i) the creditors; or

(ii) in the absence of any instructions given by the creditors, the Master of the High Court.

(d) the executor of the deceased estate of such person, authorized to carry on the business of such person by the Master of the High Court (e) the curator of such person who is a patient as defined in the Mental Health Act [Chapter 15:12] (No. 15 of 1996 authorized to carry on the business of such person in terms of section 88 of that Act;^{^[16]}

An employer is a person, whether juristic or a natural person and such a person should provide work to an employee and undertakes to pay such an employee. From the definition in Section 1 of the Labour Act and as outlined above one can see the inclusion of several persons in the definition of an employer. Except for managers, agents, or representatives of an employer the rest for the persons outlined under the definition of an employer are not normally seen in the ordinary course of doing business.

We submit that the words “manager, agent or representative of such person” are free from ambiguity or uncertainty. A manager is anyone who works on behalf of an employer. A manager must mainly supervise lower-level employees. An agent or representative is anyone who operates in the stead of the employer. This can be any person, juristic or natural.

In our respectful view, there was no need for the Labour Act to specify that a “judicial manager”, “liquidator or trustee of the insolvent estate” and “the executor of the deceased estate of such person” are all considered employers because all these persons act as representatives of the employer in their various circumstances and capacities. These persons, by the operation of the law, step into the shoes of the employer and become de facto employers.

Whilst the definition of an employer is straightforward, problems often arise when one seeks to identify the employer in a labour broking arrangement. Labour broking involves three parties, there is the labour broker, who provides labour to a client and the labour. The labour then works for the client, but all conditions of services are managed by the labour broker. The labour has a contract of employment with the broker and not with the client. In the absence of a written agreement, it can be difficult to ascertain who the employer is under these circumstances.

A dispute over the identity of the employer arose in Yoramu and Ors v PG^{^[17]}. The relevant facts of the dispute are that Yoramu, and other employees were employed at a farm which was expropriated for resettlement. The “employees” did not leave the farm after the expropriation. They argued that the new owners of the land became their new employers. The Constitutional Court, among other findings, ruled that there was no transfer of an undertaking following the acquisition of the farm and its subsequent allocation to a number of beneficiaries. The new beneficiaries were not the employers of the employees. Consequently, the contracts of the employees were deemed terminated upon the expropriation of the land from their former employer. The Yoramu case, thus shows and clearly demonstrates how it may be difficult to determine who an employer is in certain circumstances.

The relevance of being an employer

Once a person, juristic or natural, has been identified as the employer, it follows that several legal obligations flow from this designation. In this section, we look at these obligations. The duties of the employer are also from the common law and the majority have since been codified and have been incorporated into the Labour Act. The statutory duties of the employer now include the right not to commit unfair labour practices.^[18] Breach of these duties is tantamount to a repudiation of a contract of employment. The employee will exercise the choice between quitting the job and claiming damages or staying on the job and remedying the breach.

The duty to pay a lawful wage and salary

Every employer is under a statutory duty to pay a lawful wage or salary. The Labour Act has heavily regulated this duty. Controls have been put in place to protect employees from getting wages and salaries which are beyond the specified minimums for every employee.

It is unlawful to pay an employee a salary or wage which is lower than the minimum specified for such an employee.^[19] It is also illegal to terminate an employee’s contract simply because the employer cannot pay the lawful minimum wage.^[20] The law also makes it unlawful to withhold remuneration as a result of a lockout.^[21] These measures were put in place because the legislature was alive to the unequal bargaining power between employers as the owners of the means of production and the employees who are always subordinate to the employer. That unequal bargaining power is therefore balanced through minimum wage laws.

The protection afforded to employees as far as the minimum wage payment has been strengthened by most Collective Bargaining Agreements (CBAs) in Zimbabwe. Employers are also protected from paying the minimum wages if they are unable to do so but this does not happen casually. The majority of CBAs in Zimbabwe allow employers to apply for exemption from paying the minimum stipulated wages. The exemption is not granted carelessly. An employer has to show why they cannot comply with the minimum wages stipulated for the industry. Evidence of incapacity to comply must be presented before the NEC. The evidence can include financial statements and production reports to mention a few. The NEC is under an obligation to fully scrutinize the evidence presented by the employer before granting the exemption if the circumstances so allow. In our view, the granting of exemptions by the NEC thus affords legal protection to employers who cannot afford to pay the minimum wage. We submit also that this protection may qualify as special measures to avoid retrenchment in terms of section 12D of the Act. It prevents the employer from shutting down completely due to failure to pay wages and salaries which protects employees from retrenchment.

Safe working environment

Every employer is also under a statutory obligation to provide a safe working environment. Morally no employer should allow their employee to be injured. The Labour Act also codifies this duty. Under section 6 of the Labour Act (Chapter 28.01) employers are precluded from requiring employees to work in unsafe environments. The employer is also required to provide personal protective equipment (PEE) at no cost to the employee.^[22] The works council is endowed with the power to promote safe and healthy establishments.^[23]

If an employer correctly provides the employee with the necessary PPE, the relevant training and supervision, such an employer may not be held liable for the harm that the employee may face in the course of doing his or her duty. The doctrine of voluntary assumption of risk will apply to such an employee. In terms of this doctrine, a party that exposes themselves to danger, fully aware that the danger exists will not blame an employer for the harm that ensues. For this to apply, the employee must have directed his or her will towards the danger to his or her prejudice. Because of the application of this doctrine, an employee may not sue the employer for the injury they face having willingly endangered themselves. On the other hand, if the employer does not comply with the statutory obligations they must comply with, which act or omission results in the injury of the employee, the employee may sue the employer for damages.

Duty not to unlawfully dismiss an employee

Every employer is now under a statutory duty to ensure that the correct procedure is followed when separating with an employee. Like with any other duties discussed above, this duty is now emphasized in the Act. A perusal of section 12B of the Act shows the extent to which this duty has been prescribed by the legislature. The duty involves using a code of conduct when dismissing an employee.^[24] The employer is also proscribed from making a working environment intolerable on the part of the employee.^[25] The duty extends to terminating a fixed-term contract and replacing the dismissed employee when the dismissed employee had the legitimate expectation of being re-engaged.^[26]

If an employer does not separate with an employee in accordance with the Labour Act, the resultant dismissal or termination may be held to be unlawful and void. Such was the case in NMB Bank Limited v Ashton Kupara[27] where a purported termination on notice had happened outside the confines of the Labour Act (Chapter 28.01). The court, in this case, remarked:

“Termination on notice by the employer outside the ambit of Section 12 (4a) of the Act is prohibited per the clear wording of the provision. Any purported termination notice which fails to comply with the provision is, therefore, a nullity. Choga’s case is authority for the ruling that waiver does not arise in the circumstances of this case where the terminations of employment amounted to a nullity.”

It is, therefore, the duty of every employer to ensure that every employee is not unlawfully dismissed or terminated. Breach of this statutory duty may result in the reinstatement of an employee without loss of pay or payment of damages.^[28]

Conclusion

The presence of an employment relationship is not always easy to determine. The courts have had to outline various tests as a guide to show whether an independent contractor relationship or an employment contract is in existence. The most user-friendly guide is the dominant impression test. It takes into consideration the totality of the evidence presented before a court to ascertain if an employment relationship is in existence. It has also been shown that the presence of an employment relationship comes with attendant duties and responsibilities. The most fundamental duty between the parties is that they should respect the agreement they voluntarily entered into. The employee has a duty to act in a manner that furthers the interests of the employer. The employer has a duty to pay for the services rendered, creating a healthy and safe working environment as well as not to unfairly dismiss an employee.

[1] Section 1 (a) of the Labour Act Chapter 28.01.

[2] Sithembiso Ndlovu N.O v Casmyn Football Club (LC/MT/22/22).

[3] Blismas v Dardagan 1950 SR 234.

[4] National Employment Council for the Catering Industry v Richard Kundeya (SC 35/2016).

[6] 1962 4 SA 537 (A) 540H (SA case number).

[7] Diedericks L “The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence” PER / PELJ 2017(20) – DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1475.

[8] Diedericks L “The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence” PER / PELJ 2017(20) – DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1475.

[9] See NEC Catering Industry v Kundeya & Others (SC 35 of 2016).

[10] See NEC Catering Industry v Kundeya & Others (SC 35 of 2016)

[11] See the definition of an employee in terms of Section 1 of the Labour Act (Chapter 28.01 as amended).

[12] The section reads: No deduction or set-off of any description shall be made from any remuneration except—

(a) where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence.

[13] See Section 4 of the Statutory Instrument 15 of 2006.

[14] Wyeth SA (Pty) Ltd v Manqele and Others (JA 50/03) [2005] ZALAC 1).

[15] See Section 4 of the Statutory Instrument 15 of 2006.

[16] Section 1 of the Labour Act (Chapter 28.01).

[17] CCZ 2 – 2016.

[18] Section 8 of the Labour Act (Chapter 28.01).

[19] Section 6(1)(a) of the Labour Act (Chapter 28.01).

[20] See Section 21 of the Labour Act (Chapter 28.01) which reads: (1) No employer shall, otherwise than in terms of an exemption granted to him in terms of subsection (2), terminate the services of an employee solely on the ground of a requirement to pay him a minimum wage in terms of a minimum wage notice.

[21] See Section 105 of the Labour Act (Chapter 28.01).

[22] See Section 12A(2)(c) of the Labour Act (Chapter 28.01).

[23] See Section 25A(4)(c) of the Labour Act (Chapter 28.01).

[24] See section 12B of the Labour Act (Chapter 28.01).

[25] See section 12B(3)(a) of the Labour Act (Chapter 28.01).

[26] See section 12B(3)(b) of the Labour Act (Chapter 28.01).

[27] NMB Bank Limited v Ashton Kupara and 25 Others LC/H/62/22.

[28] See section 89(2)(c)(iii) of the Labour Act (Chapter 28.01).

350 Views

Distinguishing between an independent contractor and a labour broking arrangement.

In this section, we discuss the fundamental differences between an independent contractor and an employee in a labour broking arrangement. The two concepts can be unclear. Without distinguishing between the two arrangements, it may be difficult for an employer to choose between the two arrangements. An employee may also not fully understand the legal repercussions that come with being in any of the two arrangements. The purpose of this section is therefore to demystify the two concepts to allow employers and employees an opportunity, at the very least, to understand the legal consequences of each arrangement. We also look at the contemporary position in terms of South African law. At the end of the discussion, it is recommended that the South African position that seeks to protect employees provided by a labour broker is recommended for the Zimbabwean labour law jurisdiction.

Defining the two arrangements

An independent contractor resembles an employee under the purview of the Act. The major difference is that an independent contractor is not under the control of the employer.[1] Control, in this case, envisages a situation where the employer oversees the employee’s work. In a proper employment relationship, the employer provides the employee with any work-related instructions. Per contra, in an independent contractor relationship, the employer does not regulate the time, and way the contractor must undertakes his or her tasks. The employer is mainly interested in the results. The independent contractor relationship does not result in the payment of a salary but fees or commissions.[2] Tests to determine if an employment relationship is in existence have already been discussed in the foregoing section.

On the other hand, a labour broking arrangement envisages three parties. There is the employer party (the labour broker) and the client, who receives the services of the employee(s). There is the employee(s) who is attached and employed by the labour broker. The client does not have a contract with the employee but with the labour broker.[3] All the conditions of service for the employee are managed by the labour broker.[4] The contract of employment between the employee and the labour broker basically follows the requirements of the Labour Act. The contract or service level agreement between the client and the labour broker who is the employer is unique. We attach in the precedents section a model contract for a labour broker and a client.

The Labour Act (Chapter 28.01) position

The Labour Act’s position is that an independent contractor is not an employee.[5] Labour law does not apply to independent contractors.[6] The non-application of labour law means that an employer who engages an independent contractor does not have to pay for such statutory contributions as a pension, NEC contributions and any other taxes that apply to persons who work as employees. A salary is also not payable to an independent contractor. On separation, terminal benefits applicable in labour law will not apply to an independent contractor.

On the contrary labour brokerage arrangements are recognised in our law. Persons provided under labour brokerage arrangements are employees recognised in terms of the Act. In its current form, the recognition of labour broking is found in case law[7] and in terms of the Labour Amendment Act, 2021. Because the Labour Act applies to employees under a labour brokerage arrangement, it is expected that pension, NEC contribution, union dues, and Pay as You Earn (PAYE) tax are deductible from an employee’s wage or salary. Terminal benefits will apply to an employee under a labour broker. The only aspect that is peculiar to an employee in a labour brokerage arrangement is that the employer is the labour broker and not the client. It is the labour broker that is responsible for the payment of wages and salaries as well as the payment of terminal benefits on separation.

Vicarious Liability

Generally, an employer is vicariously liable for the actions of the employees. What this means is that an employer may end up paying a person, damages for the injury or harm caused by his or her employees in the normal course of doing business. Damages may accrue to the employer even in circumstances where the employer was not at fault. The rationale behind vicarious liability was outlined in Mkhwananzi v Totamirepi & Anor ZWBHC 118 – 2016 in which the court accepted that by engaging in business, an employer may increase the risk of harm to others. The employer has a better financial capacity to compensate victims of harm than the employee. These two notions, therefore, justify vicarious liability, as a rule, to protect the public from the harm that employees belonging to an employer may cause.

On the contrary, vicarious liability does not apply when an independent contractor arrangement is in place. In Masango & Others v Kenneth & Another SC 41 – 2015 the Supreme Court explained this position in the following terms:

“The authorities cited above also re-state the principle that a principal is liable for the delict of his agent where such agent is a servant but not where he is a contractor, sub-contractor or their servant”.

The foundation of this position is that in an independent contractor relationship, the person receiving the services of the contractor does not have control over the way the person so contracted operates. The manner and time of executing the work are all left to the direction of the independent contractor. The “employer” is therefore not vicariously liable for the actions of the independent contractor.

Arguably, in a labour brokerage arrangement, the person benefitting from the services of employees provided by the labour broker is not to be held vicariously liable for the actions of the employees. The labour broker should be held liable. The labour broker is the employer. This will be the case where there is a clear written agreement showing the nature of the arrangement in place. It is also submitted that in the absence of a labour brokerage agreement both the labour broker and the employer should be held jointly and severally liable.

Labour Broking and Independent Contractor Arrangements in South Africa

The law providing for independent contractors in South Africa is not very different from the Zimbabwean law. In South Africa, the Labour Relations Act No. 66 of 1995 specifically excludes independent contractors from the purview of the South African Labour law. This is not surprising; the two legal jurisdictions share a similar common law. In terms of this common law, three types of contracts of employment existed, that is locatio conditio operarum (the letting and hiring of personal services in return for money), locatio conditio aperis (the letting and hiring of services by an independent contractor), and locatio conditio rei (the letting and hiring of a thing for money). It is the common law rules behind locatio conditio operis that form the basis of the independent contractor relationship as we know it today. This type of contractor is not covered by the labour laws in South Africa and so is the case in Zimbabwe.

The way labour broking is regulated in South Africa is commendable. It does not create avenues for the abuse of the system by unscrupulous employers. There is a lot that the Zimbabwean labour law jurisprudence can learn from South African Labour law as far as regulating labour broking arrangements is concerned. In terms of the South African Labour Relations Act,[8] a person employed under a labour broking arrangement is deemed to be the employee of the labour broker.[9] The Act also clarifies that if a person is an independent contractor, such a person will not be deemed to be the employee of either the labour broker or the client receiving the services of such a person.[10] Certain contraventions of the law makes the client and the labour broker jointly and severally liable for damages in favour of the employee. Such contraventions include breaches of a collective bargaining agreement, breach of a binding arbitration award, a breach of the South African Basic Conditions of Employment Act; and a breach of a determination made in terms of the Wage Act.[11] The law in South Africa is also such that an employee can be on a labour brokerage arrangement for only three months with one client and a breach of this rule makes the employee permanently employed by the client.[12] In our view, this is a better way of regulating labour broking as it protects employees from being subjected to poor labour standards.

The discussion on labour broking and independent contractor arrangements will not be complete if a review of David Victor and 200 Others v CHEP South Africa (Pty) Ltd[13] is not undertaken. CHEP South Africa (Pty) Ltd had an independent contractor agreement with C Force in 2014. The service level agreement, forming the basis of the independent contractor relationship, stipulated that C Force would condition and repair pallets on behalf of CHEP. C Force would supply the labour and the tools, and the materials required for the process would be supplied by CHEP. The labour provided by C Force worked for CHEP for more than three months. The 201 employees were aggrieved by the arrangement and applied to the Commission for Conciliation, Mediation and Arbitration (CCMA) for an order declaring them as employees of CHEP. This was given the provisions in the Labour Relations Act that stipulated that if employees earn below a certain threshold and are provided by a labour broker, they become the employees of the client on a permanent basis after working for a client for more than three months.

Upon a close assessment of the agreement between the two companies, CHEP and C FORCE, a commissioner for CCMA concluded that a labour brokerage arrangement, rather than an independent contractor relationship existed between the parties. The net effect of this finding was that the employees were declared to be employees of the CHEP. On appeal to the Labour Court, the finding by the CCMA commissioner was overturned leading to a Labour Appeal Court application. The Labour Appeal Court proceedings upheld the decision of the CCMA commissioner. The basis of the decision by the Labour Appeal Court is discussed next.

It was the Labour Appeal Court’s finding that when assessing whether an independent contractor or a labour broking arrangement is in existence, it is the substance of the relationship rather than the form that is important.[14]

Several factors must be taken into consideration.[15] The service level agreement between the parties utilised man hours for the calculation of the fees payable to C Force which meant that labour was indeed provided to CHEP. It was because of this labour that C Force charged fees, pointing to the existence of a labour broking arrangement. Other factors that the court took into consideration included the fact that CHEP had control over the employees provided by C Force. The court observed:

“Where a client contractually controls the overall work process of persons who work at its premisses, as well as their conduct and behaviour, such persons ordinarily will be deemed to work for the client.”

The fact that the required raw materials, plant, and equipment were supplied by CHEP, that the process of pallet conditioning formed an integral part of CHEPs business and that CHEP controlled the hours of work showed that G Force was a labour broker. Having found that a labour broking arrangement existed, the Labour Appeal Court concluded that the provisions in the Labour Relations Act that deems an employee to be permanently employed by the client applied in the circumstances.

The case illustrates the robust nature with which South African labour law protects employees who are under a labour brokerage arrangement. If a client utilises the labour for more than 3 months, the employees will become those of the client rather than those of the labour broker. This protects employees from being subjected to poor labour standards on the pretext that a labour brokerage arrangement is in place. This is the kind of protection one would recommend for the Zimbabwean jurisdiction.

Conclusion

The discussion above illustrates the distinct nature of a labour broking arrangement and an independent contractor relationship. The two arrangements are different. A person under a labour broking arrangement is considered an employee under the purview of the Labour Act. An employee under an independent contractor arrangement is not regarded as an employee. We note further that, labour broking in Zimbabwe is not as highly regulated as one would ascertain from the South African jurisdiction. The position in South Africa is such that if a person is employed for a period of more than three months, they become an employee for the client if they earn below a set threshold. David Victor and 200 Others v CHEP South Africa (Pty) Ltd shows the test that has been applied by the Labour Appeal Court in South Africa to determine if a labour broking arrangement is in place. In essence, it is the substance of the arrangement rather than the form that is more instructive.

[1] Jacobus Hendrik Saayman v Christiaan Andreas Visser & Others Case Nr: 1267/01 (South Africa) held: “Unlike an employee, an independent contractor is generally not subject to the control or the instructions of the employer as to the manner in which he or she performs the work or produces the result”.

[2] Masango & Others V Kenneth & Another SC 41 – 2015.

[3] See David Victor and 200 Others v CHEP South Africa (Pty) Ltd

[4] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa.

[5] See Section 1 of the Labour Act (Chapter 28.01).

[6] Masango & Others V Kenneth & Another SC 41 – 2015.

[7] Schweppes Zimbabwe V Stanley Takaendesa LC/107/2014.

[8] No. 66 of 1995.

[9] Section 198(2) of the South African Labour Relations Act No. 66 of 1995.

[10] Section 198(2) of the South African Labour Relations Act No. 66 of 1995.

[11] Section 198(4) of the South African Labour Relations Act No. 66 of 1995.

[12] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa.

[13] JA/55/2019

[14] See David Victor and 200 Others v CHEP South Africa (Pty) Ltd at paragraph 39.

[15] David Victor and 200 Others v CHEP South Africa (Pty) Ltd.

354 Views

Unfair labour practices and the protection of employees

The protection of employees against unfair labour practices and standards is enshrined in the Constitution of Zimbabwe.^[1] The Labour Act expands on the concept of unfair labour practices. It details instances where an employer, workers committee and the trade union may commit such unfair labour practices against employees. At this point, it is critical to note that an employee cannot commit an unfair labour practice against the employer. A perusal of the sections that provide for unfair labour practices shows that these can only be committed in the course of employment and not after an employee’s contract has been terminated. This section discusses the difference between the concept of unfair labour practices as found in the Zimbabwean Constitution and in the Labour Act. It also outlines the classes of breaches that constitute unfair labour practices.

The Constitution and the Labour Act

The two pieces of the legislation, the Constitution, and the Labour Act, refer to the concept of unfair labour practices as shown above. The Constitution is the supreme law of the land and any law that is inconsistent with it is invalid to the extent of the inconsistency.^[2] The labour act gives content to the right not to be subjected to unfair labour practices as found in the constitution.

Evidently, South African labour law also provides for the concept of unfair labour practises, in the same manner, provided in Zimbabwean labour law. The South African constitution seeks to protect “everyone” from unfair labour practices.^[3] The Labour Relations Act of South Africa expands on the right to be protected against unfair labour practices and specifically accords this right to “employees”.^[4] The right to fair labour practices in the Constitution is wider compared to the restricted approach that is provided in the Labour Relations Act.^[5] The right in the constitution protects everyone and whereas the rights in the South African Labour Relations Act protect only employees.^[6] The constitutional rights to fair labour practices have been extended to illegal^[7] and invalid employment contracts because the constitution seeks to protect everyone.^[8] The South African context is thus wider in its application when compared to the Zimbabwean context.

As indicated above, the law in Zimbabwe is like that in South Africa in that the listing of unfair labour practices found in the Labour Act is a closed list. If action falls outside the actions or omissions provided in the Labour Act it cannot be classified as unfair labour practice.[9] A typical example, is one cited by McGregor wherein he argues that if an employer is unkind to an employee his or her actions may not qualify as an unfair labour practice despite the employee viewing this unkind behaviour as unfair to him or her.^[10]

The Greatermans^{^[11]} case is the locus classicus, in Zimbabwe, of the position that for an action to be classified as an unfair labour practice in should fall within any one of the categories under sections 8, 9 and 10 of the Labour Act (Chapter 28.01). The position in Zimbabwe is therefore that if an action or an omission falls outside the confines of the unfair labour practice as defined by the Labour Act, no matter how unfair such an act or omission is to an employee, it cannot be classified as an unfair labour practise. Some writers lament the restricted interpretation provided to the concept of unfair labour practises in the Gratermans case.^[12] Until this position changes, the contemporary labour law in Zimbabwe is that actions or omissions that do not fall within the categories or sections mentioned above, do not qualify to be termed as unfair labour practices.

The following part deals with actual actions classified by the Labour Act as unfair labour practices.

Unfair Labour Practices by the Employer

In the course of employment, an employer is expected to avoid certain actions or omissions that are unwarranted to an employee. The legislature came up with section 8 of the Labour Act whose main purpose is to outline unfair labour practices that an employer is prohibited from committing in the course of the employment relationship.

One of the unfair labour practises that an employer can commit is found under Section 8 (a) of the Labour Act. It is provided that an employer is proscribed from preventing, hindering, or obstructing “any employee in the exercise of any right conferred upon him in terms of Part II”. Part II provides for several rights that accrue to an employee. To mention a few of these rights, Part II provides for the right of an employee to membership in a trade union or workers committee^[13], protection against discrimination^[14] as well as protection of employees’ right to democracy in the workplace.^[15] This section is in keeping with the right to freedom of association as provided under international conventions on the subject.^[16]

Section 8(b) precludes an employer from contravening employee rights in part II as well as the rights contained under section 18 of the Act. Section 18 provides for maternity leave provisions. It is therefore an unfair labour practice to prevent an employee from going on maternity leave. The Labour Amendment Act 2021 had removed the qualifying service that was applicable before the enactment. It was required that an employee must spent 12 months of service with an employer before qualifying for maternity leave. It is now an unfair labour practice and a violation of section 8(b) of the Act for one to compel an employee to work for a certain period before qualifying for maternity leave.

Section 8(c) of the Act makes it an unfair labour practise for an employer to refuse to negotiate in good faith with a worker’s committee or a trade union applicable to an entity. Negotiating in good faith is not defined in the Act. We submit that negotiating in good faith entails dealing honestly and fairly with others. The employer must not engage in practises that shows a deliberate act of not disclosing the true picture of a situation whilst negotiating with a workers committee. It may also involve co-opting a workers committee through bribing the workers representatives in a bid to have them side with the employer. All this constitutes unfair labour practices.

Section 8 (d) speaks to the need for an employer to co-operate in good faith with an employment council on which the interests of the employees are represented. We submit that cooperating with an NEC means working jointly or assisting the NEC in complying with the Act. It may also entail negotiating in good faith in all negotiations that happen at the employment council. Failure to render such cooperation makes the employers omission or act an unfair labour practice.

Section 8 (e) outlines several failures by an employer that also constitute an unfair labour practice. The section reads:

“An employer or, for the purpose of paragraphs (g) and (h), an employer or any other person, commits an unfair labour practice if, by act or omission, he—

(e) fails to comply with or to implement— (i) a collective bargaining agreement; or (ii) a decision or finding of an employment council on which any of his employees are represented; or (iii) a decision or finding made under Part XII; or (iv) any determination or direction which is binding upon him in terms of this Act;”

Our view is that section 8(e) of the Act is self-explanatory and does not require much emphasis.

Unfair Labour Practices by the Workers Committee

Whilst it is clear that an individual employee may not commit an unfair labour practice, a trade union or workers committee can commit an unfair labour practice against an employee. Section 9 of the Act outlines the unfair labour practices as follows:

“A trade union or a workers committee commits an unfair labour practice if by act or omission it—

(a) prevents, hinders, or obstructs an employee in the exercise of any right conferred upon him in terms of Part II; or

(b) contravenes any of the provisions of its constitution; or

(c) fails to represent an employee’s interests with respect to any violation of his rights under this Act or under a valid collective bargaining agreement, or under a decision or finding of an employment council, or under Part XII; or

(d) fails to comply with or to implement any decision or finding of an employment council, or any decision or finding made under Part XII, or any determination or direction under this Act which is binding upon it; or

(e) not being registered, purports to act as a collective bargaining agent in terms of Part X or participates in the collection of union dues; or

(f) recommends collective job action in contravention of a valid collective bargaining agreement; or 13

(g) except as may be authorized in terms of this Act, purports to act as the collective bargaining agent for employees, or calls for collective job action when another trade union has duly been registered to represent the employees concerned; or

(h) purports to enter upon an agency agreement or collective bargaining agreement when another trade union has been duly registered for the workers concerned.

The role of the workers committee is to represent employees in the workplace. If the workers committee perpetuates the violation of employees rights such conduct or omission can be an unfair labour practise as shown above. At face value, an employee aggrieved by the conduct or omission of a workers committee may have recourse against the workers committee. This is so in terms of section 9 when read together with Part XII of the Labour Act.

It is however important to note that a workers committee is not a legal persona, and it cannot sue or be sued. It cannot be brought before a court or a conciliation tribunal. This was held in CT Bolts (Pvt) Ltd v Workers Committee (SC 16/2012). It is therefore our respectful submission that section 9 of the Labour Act is academic to the extent that it provides that a workers committee can legally commit an unfair labour practise. There is no legal way of making a determination that the committee has indeed committed an unfair practise. In addition, even if a way was to be found of making such a determination, there is no legal way of remedying the unfair labour practise mainly because a workers committee cannot be brought before a court.

Enforcement of the right to fair labour practises

Part XII of the Labour Act deals with the resolution of unfair labour practices. The power to resolve such disputes is primarily vested in designated agents^[17] and labour officers.^[18] Several remedies for unfair labour practices are prescribed in the whole Labour Act. To mention a few these may involve ordering the party infringing the employee’s rights to stop the unfair labour practice, payment of compensation and reinstatement of the employee to his or her former position if the unfair labour practise had resulted in the unfair dismissal of the employee.[19]

Whilst the right to fair labour practises is enshrined in the constitution, the courts have concluded that remedies against the violation of the right will have to be found in terms of the Labour Act and not the Constitution. In Magurure & 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd (SABOT) (CCZ 15/ 2016) the Constitutional Court was seized with an application that was meant to buttress the employees right to fair labour standards. In dismissing the application, the court argued that parties cannot use the constitution to directly litigate when there is a law of general application that is providing for constitutional rights. In this case, the aggrieved employees could and should have enforced their right to fair labour practices using the Labour Act as compared to making a direct Constitutional Court application.

In our view the position held by the Constitutional Court in Magurure is well-founded. Litigants are under a legal and ethical obligation to follow domestic remedies found in the Labour Act before approaching the apex court. The Constitutional Court should not be clogged with cases that can easily be handled by lower courts and tribunals.

Conclusion

From the foregoing discussion, it is indeed the position in Zimbabwean labour law that unfair labour practises are only those actions listed under 8, 9 and 10 of the Labour Act (Chapter 28.01). Constitutional protection against unfair labour practices is only provided under those listed circumstances. This is different from the South African jurisdiction where beyond persons legally recognised as employees, constitutional protection against unfair labour practices has been provided to everyone including illegal workers. We look forward to a broader interpretation of this concept to allow everyone the privilege of enjoying this right in the manner it is implemented in other jurisdictions.^[20] This discussion also outlined the various actions or omissions that qualify as unfair labour practices. The important lesson is that unfair labour practises as found in the Labour Act can only be committed against an employee in the course of employment and not when a contract has seized to exist. We have also expressed our doubt in terms of the applicability of section 9 of the Labour Act our main argument being that a workers committee is not a legal persona and may not be in a position of being accused to have committed an unfair labour practise against an employee.

[1] See Section 65(1) of the Constitution of Zimbabwe (Amendment) Act 20 of 2013 provides that: “Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage”.

[2] See Section 2 of the Constitution of Zimbabwe (Amendment) Act 20 of 2013.

[3] Section 23(1) of the Constitution of the Republic of South Africa reads: “Everyone has the right to fair labour practices”

[4] Section 186(2) of the South African Labour Relations Act No. 66 of 1995 reads: (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving – (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

[5] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[6] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[7] Kylie v CCMA, unreported Case No CA10/08, May 28, 2010.

[8] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[9] Greatermans Stores and Anor v Minister of Public Service, Labour & Social Welfare CCZ 2/2018 held at page 39 that :” For a person to allege an unfair labour practice as a violation of the right enshrined in s 65(1) of the Constitution, the conduct complained of must constitute one of the acts or omissions listed by the Act as unfair labour practices.”

[10] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 105 and 106.

[11] Greatermans Stores and Anor v Minister of Public Service, Labour & Social Welfare CCZ 2/2018.

[12] See TG Kasuso (2021) Revisiting the Zimbabwean Unfair Labour Practice Concept, http://dx.doi.org/10.17159/1727-3781/2021/v24i0a9016 (Accessed 9 July 2022) who argues that “In giving meaning to the constitutional right to fair labour practices, the Constitutional Court should have examined the essential elements of the right, namely, every person (beneficiaries of the right), fairness, and labour practice.”

[13] Section 4 of the Labour Act (Chapter 28.01).

[14] Section 5 of the Labour Act (Chapter 28.01).

[15] Section 7 of the Labour Act (Chapter 28.01).

[16] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

[17] See section 63 of the Labour Act (Chapter 28.01).

[18] See section 93 of the Labour Act (Chapter 28.01).

[19] In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v Num Obo Masha and Others (JA 4/15) [2016] ZALAC 25 (South Africa) the court reasoned that reinstatement is the primary remedy for unfair dismissal unless reasonably impractical or employment relationship irretrievably destroyed.

[20] See Kylie v CCMA, unreported Case No CA10/08, May 28, 2010, where the right to fair labour standards was enforced in favour of a prostitute.

691 Views

The Basics of Lawful Collective Job Action

Introduction

The Constitution of Zimbabwe enshrines the right to strike under section 65(3).[1] It provides that every employee has a right to engage in collective job action. It is also quick to mention that this right may be curtailed or restricted by legislation such as the Labour Act. Such a restriction is important to maintain essential services.[2]

As a point of departure, it is these restrictions that are provided in the constitution that will be discussed in this section. This will provide readers with an appreciation of what makes up a lawful strike in Zimbabwe. The consequences of an unlawful strike will also be assessed, including case law on the subject.

Dispute of right versus dispute of interests

Whether a dispute can lead to a lawful collective job action is a function of whether the dispute is one of right or of interest. This is a fundamental fact when one is assessing the lawfulness of a strike. The Labour Act does not permit employees to engage in a strike when the dispute is one of right. A dispute of right involves “legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act”.

Section 104(1) of the Labour Act empowers all employees, workers committees and trade unions to utilise collective job action when the dispute is one of interest. A dispute of interest is one that entails the creation of a new right. As an example, a dispute of interest is paternity leave which is not a right in Zimbabwe. If employees, want to enjoy paternity leave, they must engage their employers through collective bargaining and only when such collective bargaining has failed can they engage in collective job action after following the correct procedure.

This first restriction on the right to strike was necessary because the Labour Act has clear guidelines on what employees should do when faced with a dispute of right. The act designated certain acts by employers as unfair labour practices and provides for a dispute resolution mechanism under Part XII of the Labour Act. It provides for conciliation and adjudication of such disputes.[3]

Procedural requirements of a strike

For any strike to be lawful in Zimbabwe, employees need to adhere to a set of cumbersome processes. Section 104 (2) prescribes the following procedural requirements:

Fourteen days’ written notice of the intention to strike should be given to the employer, employment council and a trade union or employers’ organisation or federation provided the trade union or employers’ organisation, or federation is not itself resorting to the strike.[4]

The second requirement is that the matter (dispute of interest) should have gone through conciliation and this conciliation must have failed.

When conciliation fails a certificate of no settlement is issued. It is only after this that the employees can engage in collective job action.[5]

A strike is not permitted where there is a registered trade union representing the employees concerned and that trade union has not approved or allowed the collective job action.[6]

Besides the above, employees must navigate a set of other requirements prescribed by the Act. The employees should not be engaged in essential services. These services are outlined in the Statutory instrument 137 of 2003. They include the provision of medical services, fire services department, veterinary services etc.[7]

Striking is also not permitted if the dispute is subject to arbitration.[8]

Case law on collective job action

On this part, we select a set of case law that illustrates the basics of collective job action and the consequences of unlawful collective job action.

Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu[9]

Here, the SC acknowledged that a few employees can be singled out for disciplinary action in the event of a collective job action involving several other employees. The SC supported the position found in Mashonaland Turf Club v Mutangadura which held:

“The law is clear that in a situation such as this the employer is entitled to dismiss the employee. The fact that the respondent was singled out for disciplinary action becomes irrelevant once it is accepted that his misconduct went to the root of his employment contract.”

ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union[10]

In this case, the court noted that a mere demonstration that was to be undertaken by employees who are involved in essential services qualifies as a collective job action and it is unlawful. It noted:

“The unlawfulness of the intended collective job action arises from two situations. Firstly, the employees of the applicant are engaged in an essential service and are prohibited by law from engaging in or recommending collective job action. See s 104 (3) of the Labour Act; and s 2 (g) of the Labour Declaration of Essential Services Notice, 2003.”

Speciss College v Maxwell Chiriseri, Emmanuel Chidodo and Allen Musevenzi [11]

This case points to the fact that non-compliance with processes and procedures provided under section 104 of the LA automatically results in a collective job action becoming unlawful. As mentioned, among other requirements, employees contemplating a collective job action must ensure that the dispute is one of interest, that the required notice is given and that a labour officer has issued a certificate of no settlement after an attempt to conciliate the dispute. This case buttressed this principle:

“It is not disputed that no notice was given to the appellant of the impending strike or that no attempt had been made to conciliate the dispute as required by subs 2(b) of s 104. In the circumstances, the collective job action was unlawful by reason of its non-compliance with s104.”

Consequences of an unlawful job action

Having outlined the requirements for a lawful job action it goes without mentioning that an unlawful job action comes with serious consequences for both the participants and the union that would have allowed such. Among other consequences, an unlawful job action can cause the dismissal of the employees concerned, can lead to the issuance of an interdict[12] as we all payment of damages.[13]

Regarding the consequences of collective job action Speciss College case mentioned above, ruled:

“…an employee who participates in an unlawful collective job action risks dismissal from his employment and non-payment of wages or salary for the period of such unlawful collective job action.”

Conclusion

From the foregoing discussion, it can be summarised that the right to engage in collective job action is rooted in the Zimbabwean Constitution. This synopsis showed the procedural requirements set out in terms of section 104 of the LA. It also showed what our courts have pronounced in connection with the unlawfulness of collective job action. At the end of the discussion, the consequences of an unlawful job action have also been outlined. These include non-payment of wages during the period of the strike and payment of damages for any loss caused but for the unlawful strike.

Prescribed Reading

Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).
Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu (SC46/20).
ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).

REFERENCES

[1] Section 65(3) of Constitution of Zimbabwe Amendment (No. 20) Act, 2013 reads “Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw them labour and to take other similar concerted action, but a law may restrict the exercise of this right in order to maintain essential services”.

[2] See ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).

[3] Isoquant Investments Private Limited T/A Zimoco v Memory Darikwa (CCZ 6/20).

[4] Section104(2)(a) of the Labour Act.

[5] Section 104(2)(b) of the Labour Act.

Section 104(2)(b) of the Labour Act.

[7] Section 104(3)(a)(i) of the Labour Act.

[8] Section 104(3)(b)(ii) of the Labour Act.

[9] Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu (SC46/20).

[10] Zesa Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).

[11] Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).

[12] Zesa Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).

[13] Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).

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Fair Dismissals!

Several authors have written about unfair dismissals and the consequences thereof. Our Labour Act also clearly outlines circumstances where one is deemed to be unfairly dismissed. As an example, if one is on a fixed-term contract that is terminated and replaced by another employee, automatically unfair dismissal would have occurred. This is just one example.

What is often ignored are the circumstances where dismissal is fair! Fairness as a legal principle is not as simple as the layperson may presume. It is explained from the substantive law and the procedural law perspectives. In this section, we commence by defining the two types of fairness that are recognised in our law, substantive fairness, and procedural fairness. We will then proceed to outline examples from our case law in which fair dismissals were documented. We examine the most common types of offences found in various codes of conduct in Zimbabwe.

Substantive Fairness

Substantive fairness emanates from substantive law. According to Pete et al “substantive law deals with the question of whether or not a legal claim exists in any particular situation”.[1] Substantive fairness in a disciplinary case, therefore, entails whether or not, on a balance of probability, the employee is guilty of the charges being levelled against him or her. It is not concerned about the steps so taken to prove that the employee is guilty.

Procedural Fairness

Procedural fairness comes from procedural law or adjectival law. This “deals with the procedures to enforce legal claims in civil or criminal law”.[2] In a disciplinary case, this is concerned with the steps taken to prove whether the person is guilty or not. These steps are outlined in the code of conduct and the labour act. The fact that the employee is given three days’ notice before attending the hearing, and requiring the employee to mitigate before the ultimate penalty is given are examples of procedures found in codes that ensure that there is procedural fairness.

There is a fine line between the two types of fairness and in most cases, a substantial departure from the rules that govern both types of fairness can result in the vitiation of the disciplinary hearing. As a general rule, in Zimbabwe, procedural irregularities that do not result in prejudice may be condoned by a court.[3] In the famous case between Nyahuma v Barclays Bank of Zimbabwe SC 67-05, the Supreme Court pronounced that:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

A typical example of a procedural irregularity that can result in the invalidation of proceedings is found in Unifreight Limited v Lighton Madembo SC 6 – 18. Here the Supreme Court found that the fact that the chairman of the hearing acted as both the complainant and the chairman prejudiced the employee of a fair hearing. This was compounded by the fact that no record of the hearing was present and that the members of the worker’s committee did not attend the hearing.

Fairness in Context

Here we assess common offences found in codes of conduct across the labour law spectrum in Zimbabwe. We review the facts and the law that resulted in the court concluding that the dismissals were fair.

We accept that each context is unique and that what the courts decided in these cases may be different from what one may face in reality. Whilst this is so, the cases discussed here provide an important guide in our quest to understand what fairness entails.

Any Act of Conduct or Omission Inconsistent with The Fulfilment of The Express or Implied Conditions of His or Her Contract

This is a common offence favoured by several employers. The offence talks about express conditions. These are conditions written down either in a contract, instruction, standard operating procedure, or policy, to mention a few. Violation of such terms will constitute an offence chargeable in terms of a code of conduct. Equally so, every contract has implied conditions of contract. In terms of the common law, every employee is expected to behave in a manner that promotes the employer’s interests. This is called the fiduciary duty of trust between an employer and an employee. Such a duty does not necessarily need to be written down because it is implied in every contract of employment.

As far as this offence is concerned, there is no “fixed rule defining the degree of misconduct that will justify dismissal”[4]. This is perhaps the reason why employers prefer this charge as what is important is that the employer proves that the conduct of the employee undermined the trust and confidence between the parties.

In Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20 the Supreme Court concluded that an employee who fails to follow a new reporting structure established by the employer can fairly be dismissed in terms of this offence. The court remarked:

“In my view, the appellants conduct cannot be regarded as consistent with the fulfilment of her employment. Her conduct undermined the trust and confidence between the parties as envisaged by her correspondence with the Chief Executive Officer. It is an implied term of the appellant contract that she my comply with orders of the respondent bank. The failure by the appellant to comply with the order, despite numerous invitations to do so made the relationship between the parties untenable. She should have complied with the directive and then taken corrective measures later. In my view, this amounted to a serious misconduct which warranted dismissal”.

It, therefore, follows that it will be substantively fair if an employee were to be dismissed because he or she acted in a manner inconsistent with the employment contract provided that the misconduct goes to the root of the employment relationship. This is shown when the conduct or omission itself warrants the inference that the offence committed undermines the trust and confidence between the parties.

Gross Negligence

The test for negligence is settled in our civil law. According to Kasvosve v Masuku & Ors HH 64 – 2018, the test is whether a reasonable person would have behaved in the same manner as the individual in question. If on a balance of probability it is found that YES a reasonable person would have behaved in the manner the accused did, then there is no offence and the employee ought to be found not guilty. If on the other hand, the answer is a NO, because no reasonable person in the position of the accused would have acted in the manner he or she did then a guilty verdict may be concluded.

Negligence tested in this form is also found in criminal matters. The so-called reasonable person test is used to assess whether one was negligent or not.

In Kasvosve v Masuku & Ors HH 64 – 2018 the court had this to say:

The principles applicable to an inquiry into the existence or absence of negligence are settled. Jonathan Burchell in Principles of Delict (Cape Town, Juta & Co Ltd) at p 86, summarises them as follows:

“the test for determining negligence is as follows:

Would a reasonable person, in the same circumstances as the defendant, have foreseen the possibility of harm to the plaintiff;

Would a reasonable person have taken steps to guard against that possibility;

Did the defendant fail to take the steps which he or she should reasonably have taken to guard against it?

If all three parts of this test receive an affirmative answer, then the defendant has failed to measure up to the standard of the reasonable person and will be adjudged negligent.”

In disciplinary hearings, therefore, we submit that for the negligence to be “gross” it should be of such a magnitude that no reasonable person would have behaved in the manner the accused did. In CIMAS Medical Aid Society v Lindiwe Mhunduru (SC133/21), an employee who recommended the awarding of a tender to a certain construction company was deemed to be grossly negligent and the Supreme Court upheld her dismissal from employment. In this case, the court noted that a senior employee who knows of the existence of a policy but proceeds to follow a procedure that is contrary to the written policy is deemed to be grossly negligent. The court made use of the principles outlined in Rosenthal v Marks 1944 TPD 172 at 180 where it was said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to

give consideration to the consequences of his actions, a total disregard of duty”.

Wilful Disobedience to a Lawful Order

This is a common offence found in the majority of codes of conduct and not surprising that the National Code of Conduct (Statutory Instrument 15 of 2006) retains this as one of the offences that can be charged under the code. The offence originates from the basic fact that an employee owes the employer a duty of fidelity in terms of which the employee is expected to further the interests of the employer. An employee is thus expected to obey the lawful and reasonable instructions of the employer.

In Innscor Africa (Private) Limited v Terrence Gwatidzo (SC 5/2015) the court had an opportunity to deal with a case involving an employee who refused to give the employer a written report as to why he had not worked emergency overtime. The employee argued that he was on an authorised off and there was no need for the employer to question why he did not avail himself to work overtime. The court upheld the dismissal of the employee. In coming to this conclusion, the Supreme Court observed that the instruction given by the employer was lawful and reasonable. It was deemed lawful because it was capable of being carried out. The court argued that the existence of a moral excuse for the disobedience does not result in the offence being less wilful or will not result in the employer’s order being less lawful. In the circumstances, the dismissal was upheld.

Theft or Fraud

Theft or Fraud are perennial problems in the modern workplace. The two charges are also in our view mishandled because they are also found in criminal law. Very often, the employers ignore the fact that the criminal law and labour law routes of disciplining a person are different routes. It has been emphasised on various forums that the fact that an employee has been charged by the state for theft and fraud does not preclude the employer from also pursuing the internal disciplinary hearing. The mistake often made therefore is where the employer waits for the criminal law processes to finish and then move to dismiss the employee. In some cases, the employee is found not guilty by the criminal justice system leaving the employer with a dilemma as to what should be done next. Very often employees who are guilty of theft or fraud are then left untouched. The best option proposed is that of pursuing the criminal law route and the labour law route (internal disciplinary hearing) at the same time. This is so because the outcome of one process does not interfere with the outcome of the other. An employee may still be found guilty in internal proceedings whilst the criminal law justice system may find them not guilty.

We submit that the criminal law definition of these two offences applies in Labour law. The definitions outline the elements that will have to be proven by the employer on a balance of probability. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23][5] under section 113, theft is outlined as follows:

“Any person who takes property capable of being stolen:

(a) knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and

(b) intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control”.

The same Act outlines Fraud as follows:

“Any person who makes a misrepresentation:

(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;”

It should be remembered that whilst the criminal law definitions have been used to explain what theft or fraud this does not change the burden of proof. In ZESA v Dera 1998 (1) ZLR 500 (S) cited in Pia Ngwaru v First Mutual Health Company (Private) Limited Sc 38-19 the Supreme Court argued:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a

person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. A claims money from B, B claims an order that he owes nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft.

So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the “balance of probability” test. ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.”

The fact, therefore, remains that, the fact that a code has an offence that is criminal in nature, does not change the standard of proof expected in the disciplinary proceedings. A disciplinary committee or authority faced with a Theft or Fraud case will still need to balance the probabilities of the accused’s guilty or not guilty.

Absence from Work for a Period of Five or More Working Days Without Leave or Reasonable Cause in a Year

This is also a common offence. The basis is that every employee is employed to render personal services to the employer. If the employee decides to be absent this will constitute a breach of the rendering of personal services.

In Cotton Company of Zimbabwe v Muchirahondo SC 262/99 the Supreme Courtfound that an employee who admitted being away without official leave was properly charged and dismissed. The court mentioned:

“There is no basis for accusing the bodies that heard Muchirahondo’s case of having relied upon the fact that he was serving a written warning for the offence of having been absent from work for three to four days without leave in finding him guilty of the offence he was charged with. Even if reference to the written warning became a factor in the assessment of guilt, it could not affect the fact that Muchirahondo admitted that he was absent from work for five or more days without leave. The fact that he was serving a written warning for previously having been absent from work without leave showed that he was aware of the requirement that he should seek leave from the employer for being absent from work. Any reasonable tribunal faced with such an admission of the elements of the offences charged would find the offender guilty as charged.”

This is a clear offence and does not require further elaboration. If any employee does not further the interests of the employer because of being absent for a period of 5 or more days, dismissal is warranted.

Gross Incompetency or Inefficiency in The Performance of His or Her Work

This offence is split into two. An employee will have to be found guilty of either incompetency or inefficiency for the dismissal to be warranted. This offence was correctly explained in Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39-17. In this case, the employee was found to be grossly inefficient because he failed to supervise his department and relied on assumptions for almost 6 months. He also failed to attend three meetings he had scheduled. In that case, the court aptly explained the two offences as follows:

“The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.” The use of the word “or” means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them. Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done.” Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc” (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760 and 766).”

Habitual and Substantial Neglect of His or Her Duties

For one to be found guilty of this offence the act or omission complained of should be habitual, substantial and should also constitute neglect of duties. The word habitual means that the behaviour complained of must be continual, perpetual, repeated, or frequent. It does not have to be one event. Secondly, the act should be substantial, which means it must be considerable, or material. Lastly, there should be neglect of duties. Neglect means that the employee should have shown that they do not care for their duties. Trivial and infrequent neglect of duty is not chargeable under this offence.

In Happison Sigauke v Falcon Gold Zimbabwe Limited (SC 18/2017) the Supreme Court confirmed the dismissal of an employee who had failed to have a spare key to a safe for 17 years. It said:

“The consistent failure by the appellant over this period to take any measure to secure the safe whether by replacement of locks or otherwise can only amount to habitual and substantial neglect of his duties.”

Lack of A Skill Which the Employee Expressly or Implied Held Himself or Herself Out to Possess.

This is one offence that one can commit at the point of being engaged by the employer. It is common for prospective employees to undertake that they can do certain tasks. In a world where getting a job is onerous some have found themselves having to over-promise to get a job. Most codes are alive to this problem and this offence has been taken into consideration to deal with us unfortunate situations.

In Total Zimbabwe (Pvt) Ltd. v Moyana (09-03) the job that the employee was required to perform required that he verify delivery notes after having seen and verified the contents as written on the delivery note. The employee did not do so despite the contract being clear that this was a requirement of the job. This was despite the employee has undertaken to the employer that he could work in such an environment. In upholding the employee’s dismissal from employment, the Supreme Court had this to say:

“It seems to me that in signing such an important document as a delivery note without having seen the products it referred to as having been loaded onto the truck, Moyana denied himself the opportunity of exercising any of the skills he had undertaken to exercise in the performance of his duties. He was in fact committing a fraud on his employer, in that by his signature on the delivery note he misrepresented that he had exercised reasonable skill by physically checking and counting the contents of the truck. He certified everything as being in order when that was not the case”.

Conclusion

We have discussed the most common offences chargeable in terms of the codes of conduct in Zimbabwe. What is important to take note of are the various elements of each offence which if proven from a substantive and procedural law perspective, results in a fair dismissal.

[1] Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2^nd ed (2013) Oxford University Press.

[2] Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2^nd ed (2013) Oxford University Press.

[3] Unifreight Limited v Lighton Madembo SC 6 – 18.

[4] Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20.

[5] Act 23/2004

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Towards Quantifying Damages for Sexual Harassment in Zimbabwe

Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.

Introduction

Sexual harassment in the workplace has no place in any modern-day society. There is continuous recognition in our jurisdiction that this barbaric disease has to be nipped from the bud. As we write this article, we know that the legislature is contemplating amending the Labour Act so as to ensure that anyone who perpetrates sexual harassment in the workplace may be imprisoned for 10 years. The relevant provisions robustly articulate:

“Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.[1]

In this discussion, we look at the matter between Rita M Mbatha and Farai B Zizhou & Another [2]. We assess the summary facts that led to this dispute as well as the authorities cited by the High Court in determining the case. It should be noted from the start of this discussion that, the process of seeking damages for sexual harassment falls within the field of civil law and not labour law. Anyone contemplating suing for such damages should at least approach a Civil Court within their area of jurisdiction.

Facts

We shall not dwell much on the detail as it regards the legal journey that the applicant in this case followed. The major facts that led to the dispute between the parties are as follows:

The plaintiff, in this case, was employed by the second respondent from 2002 – 2003. The employment lasted 9 months.
She was unfairly dismissed and according to the Court, the first defendant facilitated her dismissal after the plaintiff accused him of sexual harassment.
The sexual harassment took various forms and again, according to the court records the second defendant had sent emails to the plaintiff expressing his affectionate feelings towards the plaintiff.
Reports of sexual harassment reached the president of the second respondent, but nothing was done, and she then resorted to the law.
The proceedings that led to the judgement under discussion were instituted in June 2014.
In this application, the plaintiff outlined the damage that she suffered as a result of this sexual harassment. In this respect she said that she suffered psychological trauma, she dropped out of law school, lost her immovable property and marriage.

The Law

We have already mentioned that the process of recovering damages for sexual harassment falls within the field of civil law. These principles are discussed here.

First, the court noted that sexual harassment is prohibited in terms of the labour laws of Zimbabwe. It looked at sections 8 (g) and (h) and concluded that sexual harassment is “an actionable wrong in terms of our labour laws”.

The court recognised that sexual harassment is actionable under the Lex Aquilla. The Lex Aquilla, in modest terms, constitutes a set of rules that were passed during Roman times which rules protected persons against injury caused by others. It is an old set of rules that have survived to this day. The High Court in this case took note of the fact that sexual harassment causes non-patrimonial loss which results in the need to compensate the victim.

It also took into consideration the rights guaranteed in terms of the constitution in particular the need to respect an individual’s dignity. In this respect the court remarked:

“Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected. It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her2. It turns her into an object of sexual gratification. It strips her of her right to personal security as contemplated by s 52 and s 53 of the Constitution”.

Calculating the damages

The court accepted that calculating damages of this sort is not an easy job. It recognised that coming up with the damages is a matter of the court exercising its discretion. It suggested that the compensation should show that no lip service is paid to such issues and that it be tangible.

It was accepted that damages for sexual harassment have no precedence in this jurisdiction. This case was therefore amongst the first cases to deal with this subject. The court took into consideration an out of court settlement that had taken place in 2010 and concluded that the damages payable to the plaintiff, after considering all the facts, is USD 180 000.

Own Comment

The High Court has set the tone for future assessment of these damages. The fact that sexual harassment attacks the fundamental rights enshrined in the constitution will always be taken into consideration when dealing with matters such as the one before the court.

[1] Proposed Section 6(3)(4) of the Labour Act.

[2] Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.

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