Author: Taurai Mrewa

Act 5 of 2015 removed the employer’s right to terminate a contract of employment on notice. It only prescribed that the right only exists when the employer terminates a contract through a code of conduct, mutual separation or when the employer is pursuing a retrenchment exercise. The same provisions were maintained in the Labour Amendment Bill of 2021. Despite the changes brought about by the 2015 amendments some employers still labour under the misconception that they can terminate a contract of employment on notice. Thankfully, the Supreme Court in CFI Holdings v Peggy Rambanepasi and Others SC 17 – 22 clarified this issue.

The facts

The facts of this are pretty much straightforward. The appellant employer terminated 3 senior managers’ contracts on notice on 26 January 2016. They were all given three months’ notice which they were not allowed to serve. Aggrieved, the respondents placed a dispute before a labour officer who ruled that the terminations were unlawful. The Labour Court confirmed the Labour Officers ruling as it also concluded that the terminations were unlawful.

The law

In reaching its conclusion, the Supreme court had to answer the question as to whether the employer complied with the law on termination on notice as provided under section 12(4a) of the Labour Amendment 5 of 2015.[1]

The court observed that the legislature’s intention when it came up with section 12(4a) was so that employees terminated on notice would not “walk away empty-handed”.[2] It further observed that section 12(4a) applied to employees in specified circumstances.[3] Through the so-called golden rule of statutory interpretation, the court concluded that termination on notice can only happen when there is full compliance with the section under discussion. The court thus argued:

“In order to comply with s 12 (4a) the parties could only terminate the contract of employment if there was a registered Code of Conduct for the workplace, or in the absence of such code, a model code, or there was mutual agreement to terminate the contract of employment. It is common cause that there was no code of conduct used. It is also common cause that there was no agreement as between the parties to terminate the contract.”

The court added that it is only when there is full compliance with section 12(4a) that the accompanying provisions that talk about payment of a minimum retrenchment package can be applied. In the absence of full compliance with section 12 (4a), section 12 (4b) cannot be applicable.

Conclusion

At the end of the dispute, the court concluded that the Labour Court was right in confirming the labour officer’s draft ruling that the employee’s contracts were terminated unlawfully.

Own Comment

The case has at the very least, confirmed that the blanket common law right to terminate a contract on notice is no longer part of our law. Termination on notice can now only happen in terms of section 12 (4a) of the Labour Act as amended. Full compliance with the mandatory provisions of that law must happen. Termination on notice can only happen if the termination is in terms of a code of conduct, a mutual separation or when retrenchment is being pursued. Outside these specified conditions, termination on notice is unacceptable. A similar approach was adopted in NMB Bank Limited v Ashton Kupara and 25 Others where the court argued that the employer must fit all terminations on notice within the provisions of section 12 (4a) of the Labour Act as amended in 2015.

We believe that these cases are correct and the clarity they bring is a welcome development in our labour law. The common law right that gave employers to end contractual relationships on notice ended in 2015. One cannot exercise rights that have since been statutorily abolished.

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[1]           The section reads: (4a) No employer shall terminate a contract of employment on notice unless— (a) the termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9); or (b) the employer and employee mutually agree in writing to the termination of the contract; or (c) the employee was engaged for a period of fixed duration or for the performance of some specific service; or (d) pursuant to retrenchment, in accordance with section 12C.

[2]           CFI Holdings v Peggy Rambanepasi and Others SC 17 – 22 on paragraph 11.

[3]           CFI Holdings v Peggy Rambanepasi and Others SC 17 – 22 on paragraph 11.

The backbone of this case is the question of whether an employer can appeal against a decision of a disciplinary hearing. One viewpoint is that when an employer constitutes a disciplinary hearing, he appoints an agent to deal with the disciplinary issue on his or her behalf. This viewpoint suggests that the employer must abide by the outcome of the disciplinary hearing meaning that the employer cannot challenge the outcome of the proceedings by way of an appeal. This viewpoint is seemingly logical and plausible, however, in ZESA Holdings (Private) Limited v Obson Matunja SC 73–22 the Supreme Court argued that it is not consistent with the basic rules of statutory interpretation. The court in this case undertook an important investigation that one cannot afford to ignore regarding a fake Supreme Court judgement that purpoted to deal with this issues similar to the ones in dispute. The important findings of the court are discussed hereunder.

The facts

The appellant charged the respondent for contravening the national employment code of conduct. It appointed a hearing official that made a finding that the respondent was not guilty. The hearing concluded that the charges were baseless and unsubstantiated. Aggrieved, the employer appealed to the Labour Court. The Labour Court struck the appeal off its roll. It ruled that the employer did not have the right to appeal against the verdict of a disciplinary hearing. The Supreme Court did not agree.

The law

The apex court observed that there are two conflicting judgements in the Zimbabwe Law Reports. The judgements pertain to Pioneer Transport v Mafikeni. One of the judgements is shown to have been issued in 2017 and the other one was issued in 2018. After its investigation, the court ruled that the 2017 judgement is fake.[1] The judgement suggested that an employer cannot appeal against a decision of a hearing. This is the judgement that the respondent employee was relying on in arguing that an employer cannot appeal against a disciplinary hearing outcome.

The court looked at the appeal provisions in the Labour Act[2] and national code[3] and realised that these provisions granted “a person” aggrieved by the decision of a hearing official the right to appeal to the Labour Court.  It looked at the basic rule of statutory interpretation relies on the words in a statute to constue the intention of the legislature and decided that the word “person” also included artificial persons such as a corporation created in terms of the law. The employer being a legal person, the Supreme Court argued that it had the right to appeal against the decision of the hearing. The court thus decisively observed:

“There is, therefore, no doubt whatsoever in light of the foregoing authorities, that on a proper interpretation of s 92 D of the Act, an employer is a person. An employer qualifies as a person who can be aggrieved by a determination made under an employment code. That is the only ordinary grammatical meaning of that section”.

The employer thus retains a right to appeal against a decision of a hearing official. The court also added that there is no statutory bar against an employer appealing a decision of a hearing.[4]

Conclusion

The appeal was allowed thus giving an aggrieved employer the right to appeal against the decision of a hearing.

In addition, the court ordered that the registrar of the Supreme Court must issue a corrigendum removing the judgment of “Pioneer Transport v Douglas Mafikeni SC 45/17 (2017 (2) ZLR 71) from the list of Supreme Court judgments and asserting that the authentic judgment of this Court is Pioneer Transport v Douglas Mafikeni SC 65/18.”[5]

Own Comment

We fully agree with the conclusion reached by the Supreme Court in this case. It has been mentioned elsewhere in this publication that the purpose of labour law is to balance the interests of the employer and the employee. It would not be in the interest of justice to provide one party to the employment relationship with rights that are not given to the other party.

The right to be heard is fundamental to the resolution of disputes in labour law. It would be unfortunate to take a position that such an important right is reserved for the employee alone. An employer in the form of a company is a legal person that can be aggrieved by decisions of a disciplinary hearing outcome.

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[1]           ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 2.

[2]           Section 92D of the Labour Act reads: “Appeals to the Labour Court not provided for elsewhere in this Act: A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner, as may be prescribed, appeal to the Labour Court”.

[3]           Section 8(6) of Statutory Instrument 15 of 2006: “A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision”.

[4]              ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 13.

[5]              ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22 on page 14.

“A reading of s 12B of the Labour Act and s 175 of the Companies Act shows that the provisions are inconsistent as they are mutually exclusive. Section 175 of the Companies Act seeks to limit the dismissal of a director in accordance with the procedure set out in that section i.e., by special resolution. On the other hand, the Labour Act provides for the dismissal of employees in terms of a code of conduct”.

Introduction

This case deals with situations where an individual is both an employee and a director of a company. It is common for companies to appoint an individual as a managing director and at the same time have the same person on a contract of employment. The question that then follows is whether the procedure in the Companies and Other Business Entities Act, 2019 or the Labour Act should be utilised in the event of separation. This case also dealt with the effect of handling a disciplinary hearing beyond the prescribed period in terms of the National Code.

The Facts

The appellant was engaged as the Managing Director for the respondent company. He was suspended and a disciplinary hearing was held in terms of the National Code.[2] He did not attend the disciplinary hearing which proceeded in his absence. He was found guilty and dismissed in absentia. Appeals to the appellate authority, arbitrator and the Labour Court failed to yield the desired results leading to the Supreme Court appeal.

The Law

The initial finding of the Supreme Court was that the appellant could not challenge the composition of a disciplinary hearing because he had not attended the hearing.

On whether the Companies Act or Labour Act should apply in the circumstances the court found that Labour Act took precedence over the Companies Act.  This was mainly because the appellant was an employee who had a contract of employment. He also earned a salary because of this contract.

The Supreme Court also made a finding that the hearing was conducted outside the 14 days provided in the National Employment Code of Conduct. The court found that such a delay does not end the disciplinary hearing. It only gives an employee the right to demand that the hearing be done. It rightly made use of the remarks of the court in the case of Air Zimbabwe v Mnesa & Anor SC 89-04, where the court remarked:

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

Conclusion

As a result of the above, the court concluded that the appellant was guilty of the offence charged and upheld the decision of the Labour Court.

Own Comment

This matter was determined at a time when the Companies Act (Chapter 24.01) was still operational. In 2019, the legislature introduced the Companies and Other Business Entities Act (Chapter 24:31). A perusal of this law shows that the section on the removal of directors is almost identical to the one that was in the now-repealed Companies Act. Besides the new legislation, the remarks of the court, in this case, are still watertight. If an individual is under a contract of employment the Labour Act determines how the relationship with the employer is to end.

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[1]           Benham G. Mombeshora v Institute of Administration and Commerce (Zimbabwe) SC 72 – 17.

[2]               Statutory Instrument 15 of 2006.

“The learned judge of appeal found that there was no legitimate expectation on the part of an employee to be paid more than what he is supposed to be paid simply because other employees may be receiving greater, seemingly unjustified benefits”.

Introduction

This case illustrates a common challenge in the process of managing pay equity. The common perception among employees is that if they are in the same grade, they should all get the same pay. This is not correct. The Supreme Court, in Thokozile Zinonda v Cafca Limited SC 64 -17, looked at the authorities that deal with this issue and concluded that employees in the same grade may get different salaries for as long as this does not violate any Collective Bargaining Agreement (CBA).

The Facts

The matter before the Supreme Court was an application for leave to appeal to it against a decision that was made by the Labour Court. We will not go into what led to this application as this is irrelevant to this discussion. What is important to note is that:

1. The employee was in grade C1 which was later upgraded to C3.
2. She reached her retirement age and was given a new contract.
3. She then came across a schedule of the employer’s pay schedule only to notice that she was the least paid in grade C3.
4. Believing this to be a mistake she approached management hoping that the salary will be reviewed upwards. This did not happen.
5. She took the legal route.
6. There were legal procedure non-compliance issues that then resulted in the current application.
7. We will focus on the set of facts outlined above and assess how the court concluded that she was not entitled to more salary.

The law

In an application of this nature, the court is required to assess whether there are any prospects of success on the part of the applicant. The court was therefore invited to assess whether the fact that the applicant had a lower salary than those who were in the same grade as herself was an unfair labour practice.

The Supreme Court noted that an employee receiving a salary in terms of a CBA cannot raise a claim for unfair labour practice even when other employees in the same grade are earning more. This position was explained as follows:

“It should be noted that CBAs stipulate minimum wages for any particular grade. An employer is only guilty of an unfair labour practice if he fails to pay the minimum salaries for a particular grade provided therein. It follows therefore that employees may receive different salaries despite being in the same grade. The actual amount of the salary depends on the employee’s negotiations with the employer in forming the employment contract”.

The court also looked at the principles of the law of contract which give reference to freedom of contract. It considered the South African Constitutional Court case which dealt with this freedom and said:

In Barkhuizen v Napier 2007 (5) SA 323 (CC), at page 57, the Constitutional Court of South Africa, explaining the freedom of contract principle, stated thus:

“Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity”

The conclusion is clear-cut if an employee agrees to a contract of employment, he or she is bound by the same. Failure to do so would amount to a breach of contract. Our courts are not empowered to rewrite contracts of employment as this is a role left to the parties. The role of a court is to interpret and enforce a contract duly agreed upon by the parties we submit therefore that the reasoning of the court cannot be faulted.

Conclusion

Employers can therefore give employees within the same grade different salaries as long as this does not violate a CBA.

Own Comment

This case should not be used as the basis for justifying wage discrimination based on gender. This is what we mean by such discrimination, if employee A is male and employee B is female, the expectation is that the two employees should get a similar salary or wage. This is so as a function of the statutory provisions in the Labour Act. Differentiating employee’s wages based on their gender is unlawful.

Section 5 (2a) of the Labour Act as amended in 2015 provided that:

No employer shall fail to pay equal remuneration to male and female employees for work of equal value.

When the same section was amended in 2021 the legislature amended the same section 5(2a) to provide:

“(2a) Every employer shall pay equal remuneration to male and female employees for work to which equal value is attributed without discrimination on the grounds of sex or gender.”

In terms of the definition work of equal value, section 2 of the Act provides that:

 “work of equal value”, for the purposes of subsection (2a) of section five, means work that involves similar or substantially similar skills, duties, responsibilities, and conditions;

It also goes on to provide that equal remuneration means:

“equal remuneration”, for the purposes of subsection (2a) of section five, means rates of remuneration that have been established without differentiation on the basis of gender;

What is clear in these provisions is that based on gender, an employer is precluded from differentiating wages and salaries between male employees and female employees. We submit that, perhaps, if the applicant in Thokozile Zinonda v Cafca Limited SC 64 -17 had couched her case along the lines of gender discrimination, provided the facts of her case supported this, her prospects of success would have been better.

 “The evidence as a whole in my view leads to one logical conclusion; that the appellant was well aware of what it was doing when it entered into the contracts and the legal consequences thereof. This appeal is, therefore, nothing more than an attempt to depart from a valid and legally binding agreement. Courts frown upon attempts to skirt one’s legal obligation and it is therefore proper that the appellant be made to pay the respondent’s costs.”

Introduction

This case is amongst a series of judgements passed by the Supreme Court of Zimbabwe supporting the argument that courts do not readily rewrite contracts between an employee and his or her employer. All things being equal, the court will readily accept all the terms and conditions in a document duly signed by the parties as binding. This is provided that the contract was not induced by malice like fraud and misrepresentation.

Facts

The major source of the dispute was the fact that the employee had signed two agreements governing his occupation of company-provided accommodation. The first agreement was a memorandum of agreement where the appellant company had agreed to sell its houses to its employees. In the second instance, there was a lease agreement also governing the occupancy of the same house. The lease stipulated the rentals that the employee was entitled to pay.

The employer started deducting money from the employee’s salary. These deductions were itemised as “rent to buy”. The same amounts were also stated in the initial memorandum of agreement as amounts payable on the sale of the said house. The employee’s contract ended on 4 June 2007 and the employer required the employee to vacate the house. Believing that he had made a full payment in purchasing the house, the employee refused to vacate. Eviction proceedings started in the High Court, but the court ruled in favour of the employee. It was based on this HC judgement that the appellant company approached the Supreme Court.

Court’s Reasoning

Role of court in contractual disputes

The SC ruled that its duty was never to write a contract but to interpret the same. In interpreting the contract, the court is duty-bound to uphold the intention of the parties, provided the contract is valid.

The court noted that the memorandum of agreement signed by the parties made up a valid contract of sale in that the parties agreed to buy and sell the house and agreed on a price. Once these requirements were met, the court will seek to uphold the agreement. It made an important remark:

“If the appellant is to persist with the argument, it can only be construed as contracting in bad faith and as stated in the above cases, courts are not there to absolve one party of its obligations to another, particularly where the other party contracted in good faith and carried out its side of the agreement.”

Caveat Subscriptor

This is the principle that a party to a contract is bound by his signature whether he has read and understood the contract. The SC argued that this principle buttressed the argument that the memorandum of agreement signed between the employer and the employee was a valid contract of sale because the document said so and that the parties had signed the agreement.

It further argued that the lease agreement signed by the parties only completed the sale because deductions were made from the employees’ salary showing that this was a “rent to buy” arrangement.

Based on the above, the Supreme Court dismissed the appeal with costs.

Own Comment

The biggest lesson one can learn from this case is that courts are bound by what parties would have agreed. The courts do not have a duty to rewrite contracts as their only role is to give meaning to their terms. This case confirms what the SC has held in a plethora of cases like Unilever Zimbabwe (Pvt) Ltd v Matsheza^[1], Magodora & Others v CARE International Zimbabwe^[2]  and Lawrence Shumbayaonda v Madhatter Mining (Private) Limited.^[3] Contracts duly agreed upon by the parties will be upheld.

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[1]           Unilever Zimbabwe (Pvt) Ltd. v Matsheza (SC 16/2017).

[2]           Magodora & Others v CARE International Zimbabwe (SC 191/13).

[3]           Lawrence Shumbayaonda v Madhatter Mining (Private) Limited (HH 147-2010).

 “In my view, the rights of the respondent are embodied in the contract which he signed. He cannot look outside the contract to add to its terms. The act of generosity by the appellant in awarding him an increase in his allowance cannot by any stretch of imagination be deemed to be an acknowledgement that the respondent was entitled to more than was agreed to in terms of the contract.”

Introduction

This case illustrates the legal implications associated with a mutual separation agreement validly agreed upon and signed between an employer and an employee. In terms of the National Code of conduct, an employer and an employee can mutually agree in writing to end a contract of employment.

The major question before the court was “whether the respondent was entitled to a higher retrenchment package than that agreed to in the retrenchment agreement concluded by the parties”. It was argued that once this agreement is put in place; no party can renege. All parties will be bound by the terms and conditions of what would be contained in the document governing the separation.

Facts

On 15 October 2015, the employer and the employee mutually agreed to end their employment relationship. The package given to the employee was in full and final settlement of all claims, present or future arising from the employment. When the mutual separation with the respondent employee had been finalised, the employer reviewed the basic salaries for the rest of its employees. It also increased the respondent’s retention allowance. The respondent appreciated the gesture but later he demanded that his package be reviewed in tandem with the reviews that had been received by the other employees. The employer did not agree. Aggrieved, the respondent employee brought the matter to the attention of a labour officer. Conciliation failed and this led to arbitration. The arbitrator argued that the retrenchment package had to be reviewed as per the employee’s demand. Labour court dismissed the appeal against the arbitrator’s decision leading to the current proceedings.

The court’s reasoning

Sanctity of contracts

The Supreme Court’s ruling was premised on the principle that contracts validly entered between parties should be respected. The court noted:

“A party who signs a contract is bound by its terms. That is trite. He cannot blow hot and cold by accepting his benefits under the contract and thereafter, as an afterthought, demanding benefits outside the contract. Once he signed the retrenchment package thus accepting its terms, he was no longer an employee of the appellant and was not entitled to any benefits awarded to the appellant’s employees.”

One cannot look elsewhere for conditions defining his or her separation from the employer if these are contained in a document validly signed and agreed upon by both parties.

Own Comment

The Supreme Court, in this case, confirmed the doctrine found in Magodora & Others v CARE International Zimbabwe^[1] wherein the court argued that it was not the duty of the courts to rewrite a contract. Employers and employees remain bound by what they would have agreed upon for as long as the said agreement did not result from fraud or duress or any other element that attacks the consensus between the parties.

This case must be read together with the Ashanti Golf Fields case discussed below, Both cases relate to the importance of abiding by a contract duly agreed upon by the parties. The law does not tolerate litigants that renege from contracts that they would have appropriately entered into.

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[1]           Magodora & Others v CARE International Zim (SC 191/13).

“Quite clearly the respondents were transferred, with the undertaking, to another employer.  Their employment was not terminated.  In terms of the contract and also by operation of s 16 of the Act, the respondents were transferred to Rutimba on terms not less favourable than they enjoyed in the employ of the appellant.   At the very least, they were transferred on the same terms.”

Introduction

This case also involved a transfer of an undertaking. It outlines the effect of the failure to consult the employees before an undertaking is transferred to a new owner. It also discusses the recourse for employees who are aggrieved by a completed transfer of an undertaking.

The Facts

L Tendere and 24 Others were former employees of Chemco Holdings (Private) Limited. Chemco Holdings (Private) Limited sold its timber building supplies division, T S Timbers, to Rutimba Housing (Pvt) Ltd as a going concern.  The Respondents registered a complaint with the labour inspectorate of the Ministry of Public Service Labour and Social Welfare,

alleging a case of ‘alleged unlawful transfer of undertaking’. This happened 10 months after the transfer. The arbitrator and the Labour Court concluded that the transfer had not been done correctly by virtue of the employer having failed to consult the employees concerned.

The Law

In dealing with this dispute the Supreme Court noted that Section 16 of the Labour Act only requires the employer to consult the employees. There is no mandate to accept what they propose. It added:

“The provision requires the employer intending to transfer ownership to afford, to members of the works council representing the workers committee, an opportunity to make representations and advance alternative proposals. The employer is placed under no obligation to accept the proposals. He simply has to give reasons for disagreeing with them. No power of veto is given by the statutory provision to the works council or to the employees”.

It was therefore wrong for the arbitrator to find that the failure to consult the employees resulted in the transfer becoming a nullity.

On assessing the award of terminal benefits to the respondents the court also realised that the Arbitrator had erred. Since the employees had been transferred together with the business, it was not competent for the former employer to be compelled to pay terminal benefits. The court realised that if the employees had any grievances, such were supposed to be addressed to the new employer, Rutimba. It buttressed the effects of the transfer of the undertaking in the following terms:

“Once the respondents moved from one employer to the other the latter, in terms of both the contract and s 16 of the Act, assumed all responsibility for the respondents. Rutimba, being the new employer, was obligated by s 16 to ensure that the conditions of service enjoyed by the respondents were no less favourable than those they enjoyed with their former employer, the appellant. The respondents’ cause of action, if any, lay against Rutimba, not against the appellant.”

What was clear in the eyes of the court was that the grievance had arisen after the transfer had taken place. Whilst section 16 allows the affected employees to proceed against the former employer this option is not available when the transfer is completed.

Conclusion

The court upheld the appeal and dismissed the award by the arbitrator.

Own Comment

This case is commendable. A works council is not clothed with the power to veto a sale of a business. The employer retains the right to consult the employees whereupon consider the options put on the table. Consideration, in this case, does not mean that the employer may end up stopping a transfer based on the options presented by the works council.

Once a transfer is completed there is no reason for holding a former employer accountable for the actions of the new employer. What is also apparent was the fact that the award of terminal benefits against the former employer was misplaced because the employees had already been transferred.

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[1]           Chemco Holdings (Private) Limited v L Tendere and 24 Others SC 14 – 17.

“In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S) at 179F the Court held that the Labour Act [Cap. 28:08] contains no provision which either expressly or by necessary implication alter purports to the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship. Once it was accepted that the misconduct the appellant was found guilty of went to the root of the contract of employment, dismissal was the appropriate penalty”.

Introduction        

Ajasi Wala v Freda Rebecca Mine SC 56 – 16 buttresses the law that applies when one acts in a manner contrary to the implied and explicit conditions of the employment contract. The case is amongst the countless judgements that posit that when an employee serves his or her personal interests at the expense of the employer’s interests, dismissal is warranted. This case also shows and supports the rule that a court cannot casually alter a penalty imposed by a disciplinary tribunal.

The Facts

The appellant employee was the acting Human Resources Manager for the Respondent mining company. He was asked for the personal files of all employees. His disciplinary record for the seventeen years he has been employed by the Mine was missing. He was the custodian of those documents. When it became apparent that he had removed from his personal file all the relevant disciplinary documents he was charged with contravening ss 4(a) and (g) of the National Employment Code of Conduct Regulations (S.I 15 of 2006). He was also accused of intimidating a newly appointed Human Resources Manager and failing to discipline employees as required. Eventually, he was dismissed from employment.

An arbitrator that handled the appellants dismissal concluded that he had been properly found guilty but went on to alter the penalty and ordered reinstatement to his former position. Aggrieved, the respondent company appealed to the Labour Court which court set aside the Arbitrator’s determination. This Labour Court judgement founded the current appeal as the employee became aggrieved.

The Law

The main question before the court was whether the Labour Court made an error in interfering with the decision of the arbitrator. The main principle in such cases is that an appellate court can only substitute its discretion for that of the tribunal whose decision is being appealed against where there has been a serious misdirection or error of law committed by the tribunal. In applying this principle, the Supreme Court made use of the remarks in a matter between Tobacco Sales Floors Ltd. v Chimwala 1987(2) ZLR 210(s), where McNally JA approved the dictum by Lord James of Hereford in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on at 218H-219A to say:

“I consider that the seriousness of the misconduct is to be measured by whether it is ‘inconsistent with the fulfilment of the express or implied conditions of his contract’.   If it is, then it is serious enough prima facie to warrant summary dismissal.   Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

It is therefore apparent that where the act of the employee is inconsistent with the fulfilment of the express or implied conditions of his contract, summary dismissal is warranted. It was further found that it is a serious act of misconduct for an employee to deliberately act against the employer’s policies and to advance personal interests. 

The conduct of the employee went to the root of the employment to warrant dismissal. This was mainly because he had caused the disciplinary documents under his custody to disappear and to make it appear as if he had a clean disciplinary record. With regards to the employer’s discretion to dismiss an employee the court took into consideration Mashonaland Turf Club v George Mutangadura (SC 5/2012) which precludes the Labour Court and the Arbitrators from altering the penalty of dismissal.

Conclusion

The appeal was found to be without merit and was dismissed.

Own Comment

The judgement ramparts the well-known principle that an act or omission which is inconsistent with the fulfilment of the express or implied conditions of his contract warrants dismissal if it goes to the root of the employment relationship. This will be so if an employee’s actions or omissions show that the employee was desisting from serving the employer’s interests.