Author: Taurai Mrewa

Monterey Estate (Private) Limited v Kenny Broxham SC 49 – 16

“The quantification done by the arbitrator and upheld by the Labour Court in this matter is legally unsustainable. As the respondent did not prove that he was entitled to more than what the appellant had paid him, the Labour Court ought to have granted absolution from the instance.”

Introduction

The quantification of damages in lieu of reinstatement is a frequent source of labour law litigation. There is always the temptation to “pluck the figures from the air” an approach that the courts have frequently discouraged. Quantification of damages in lieu of reinstatement is not an easy task. Those who preside over such disputes must as much as possible fully utilise the evidence presented by the parties. Failure to consider such evidence results in a problematic outcome.

The Facts

This case was an appeal against the quantum of damages in lieu of reinstatement that was awarded to the Respondent, Kenny Broxham by an arbitrator. The Labour Court had agreed with the quantum.  Noteworthy, on 30 November 2009, the appellant company had given a month’s notice of termination of the employee’s contract, effective from 1 December 2009 to 31 December 2009. The respondent employee accepted alternative employment with effect from May 2010.

The Law

First, it was the Supreme Courts’ observation that the respondent was out of employment for four months. The damages awarded by the arbitrator and upheld by the Labour Court were for 9 months. There was no evidence supporting the 9 months. There was therefore no legal basis for the award because the amount granted in the arbitral award had no basis or explanation.

The Supreme Court utilised the law in Zupco v Daison wherein it was stated that:

“… in its judgment the Tribunal did not say why it chose the period of forty-eight months as opposed to any other period. As stated in Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S) at 575D, ‘if the tribunal is forced to make an estimate, it must use the information to hand, and not simply pluck a figure from nowhere. In the circumstances, I am satisfied that the Tribunal’s decision can be categorised as wholly unreasonable. …”

Duly Holdings Limited v Clever Spanera 2005 (1) ZLR 407 (S); SC 140/04 was also utilised wherein the court remarked:

“He (the employee) will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have been expected to find alternative employment.”

In essence, the Supreme Courts’ argument is straightforward, any process of quantifying damages must be supported by evidence. Failure to consider the evidence by the party’s results in an unreasonable award which is liable to be set aside by an appellate court. Even where a court is compelled to make an estimate, this estimate must be supported by the information presented by the parties.

Conclusion

The court allowed the appeal.

Own Comment

Repeatedly the Supreme Court has urged the lower courts to substantiate the quantum of damages with the evidence presented by the parties.[1] This is a universal rule when it comes to the quantification of damages in lieu of reinstatement. Plucking figures from the air results in an arbitrary decision which is not supported by the authorities on this subject.

[1]              See also Redstar Wholesalers v Edmore Mabika SC 52/05 wherein the court said: “The Labour Court’s approach was wrong and its consequent ruling grossly unreasonable. The Court is not entitled to pluck a figure out of a hat because it is of the view that this figure „meets the justice of the case‟. Instead, the court is required to hear evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment. The fact that the parties have led insufficient evidence to enable the court to arrive at an informed conclusion does not absolve the court from its duty to utilise its powers in terms of s 89 (2) of the Labour Act by calling evidence in order to resolve the issue.”

572 Views

ZB Bank v Maria Masunda SC 48 – 16

“It is clear that the filing of the medical aid claims was an integral part of the respondent’s duties as an employee of the appellant.  Where an employee fails to further the interests of the employer by omitting or refusing to do the work he is employed to do such failure amounts to serious misconduct that goes to the root of the employment contract. There can be no doubt on the facts of this case that the respondent failed to execute her duties as was expected”.

Introduction

Let’s say you are conducting a disciplinary hearing and you observe that an employee has been charged with an offence that warrants a final warning letter. Let’s also imagine that in  the course of the same proceedings you realize that the offence committed is of a serious nature. Would you dismiss the employee?

In the world of criminal justice, a person cannot be found guilty of an offence they were not charged with. In the civil sphere, particularly administrative hearings, the position is a bit different. ZB Bank v Maria Masunda SC is authority of the fact that an employer has a discretion to dismiss an employee if he or she takes a serious view of the offence.

The Facts

The facts relevant to this discussion are hereby summarized. The respondent employee was employed by the appellant company as a Health Education Officer. In August 2007 the employee informed her superior that she was overwhelmed with work. In December 2007 she went on a training program. In January 2008, she went on leave.  She wrote to her supervisor that she needed more labour. No additional labour was availed. Apparently, in violation of the company procedure, medical aid forms were not being filed. A new manager was appointed who found the situation undesirable. The employee was charged with contravening section 10 (2) of the Code of Conduct for the Banking Undertaking Statutory Instrument 273 of 2000 for ‘negligence causing substantial loss to the bank’ and in the alternative, ‘failure to comply with standing instructions or follow established procedure resulting in substantial loss to the Bank.’ The respondent employee was found guilty of ‘gross negligence’ for not submitting CIMAS claims totalling ZW$623 trillion over the period December 2007 to May 2008. I

In terms of the code of conduct, this offence was a category D offence that warranted a penalty of dismissal. An appeal to the National Employment Council Appeals Board resulted in a finding that she had been wrongfully dismissed. The employer was ordered to reinstate her without loss of salary. Aggrieved, the employer appealed to the Labour Court which appeal was dismissed resulting in the current proceedings.

The Law

The court took into consideration various precedencies. First, it found that even though the employee was charged with ‘mere negligence”, what she did was a serious act of misconduct when all factors are taken into consideration. It ruled:

“It should be noted that disciplinary proceedings, not being courts of law, are not bound by strict rules of procedure and it was quite proper for him to find her guilty of gross negligence where the evidence disclosed such an offence”.

The court went on to say:

At common law, an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract. See Toyota Zimbabwe v Posi SC-55-07. In essence, where the employer takes a serious view of the misconduct, he can dismiss an employee even if in terms of the code of conduct the offence would have attracted a lesser penalty.  This position was set out in Zimplats (Pvt) Ltd v Godide SC 2/16 where GOWORA JA noted that:

“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. [2] It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion”

It is therefore apparent that how an employer views an offence is crucial when dealing with workplace offences. It becomes irrelevant that the code does not provide dismissal as a penalty.

Reference was made to Circle Cement v Nyawasha SC 60/03, where this court held:

“Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.””

The court saw that the hearing was conducted fairly. That the employee had the chance to respond to the allegations raised against her.  The hearing officer took a serious view of the misconduct and the fact that the employee had not reported that the medical forms were not being filed. The financial loss that came with the employee’s misconduct was huge.

The court thus accepted the hearing officer’s discretion in dismissing the employee.

Conclusion

For the reasons indicated above, the court allowed the appeal.

Own Comment

In addition to NEC – Catering Industry v Richard Kundeya & Others SC 35-2016 this judgement reiterates what has been ruled on a sundry of occasions. If an employee commits an offence that goes to the root of the employment relationship, the employer has the discretion to dismiss the employee. The judgement also buttresses the common law position which is to the effect that an employee can still be dismissed if the employer takes a serious view of the offence. In this case, the fact that the employee had complained because of the workload did not excuse her from advancing the employer’s interests. This case should not be used to justify serious deviations from a code of conduct.

933 Views

The disciplinary hearing and the ancillary processes

This section discusses the several stages one expects to go through when partaking in a disciplinary hearing process. The processes we describe and outline in this section are borrowed from almost every code of conduct that is applicable in Zimbabwe. Employers are under a legal obligation to ensure that they follow all the stages outlined in the disciplinary hearing process. Failure to religiously follow these processes may vitiate the proceedings.[1] Several disciplinary hearings have failed due to the employer not paying attention to one or more of the stages of these processes. The processes discussed below, when religiously followed, result in an organized hearing and outcome. This prevents unnecessary technicalities on appeal. Lastly, the section also looks at the need to exhaust domestic remedies provided under the Labour Act, on the part of those who are aggrieved by an outcome of a disciplinary hearing process.

The applicable code of conduct

Before embarking in any disciplinary hearing process, it is important for the employer to ascertain the code of conduct applicable to the employee in question. Guidance must be sought from section 101 of the Labour Act when determining the code applicable to the accused person. As a general rule, where an NEC has a registered code and the employer does not have a registered employment code, the NEC code should be used. In the event that the employer and the NEC do not have a code of conduct, the national code of conduct (SI 15 of 2006) must be used. If an employer has a registered code of conduct, that must take precedence over the National Code and any NEC-registered code of conduct. It has been held that even where an entity has a code of conduct but for some reason it becomes inapplicable, the national code should be utilised.[2] Parties to an employment relationship cannot, therefore, be left without a remedy because the code of conduct has become inapplicable to the circumstances of their disciplinary matter.[3]

Selecting the appropriate code of conduct is a critical stage in the disciplinary hearing process because any process done under an invalid code of conduct is null and void. Any action that is null and void does not exist at law, and in the eyes of the law, it will be like no proceedings were ever done.

The Suspension stage

This is an important stage when the employer wants to engage in an investigation but realizes that there is a danger that evidence may be interfered with. Some codes make it mandatory for the employee to be suspended if a certain category of offences is committed. In other instances, which is in most cases, the code of conduct leaves the employer with the discretion to suspend an employee.[4] Offences such as theft, fraud, and fighting in the workplace may attract a suspension. It is important to note that a suspension can be with or without pay.[5]

When administering a suspension letter, it is crucial to specify the type of suspension being administered to the accused employee. Without this specification, the suspension will be deemed to be with pay. A suspension given in order to institute investigations should not be regarded as a punitive suspension because at this stage the employee is not guilty.[6] The question of punishment does not come into play. The employer is under an obligation to reinstate an employee on a finding that the employee did not commit an offence which was the basis of the suspension.[7]

Investigation stage

The investigation stage is a fact-finding mission. This is when the employer seeks to ascertain if the employee committed the offence. At this stage, the hearing official or committee is not involved. This is where the person complaining on behalf of the employer is gathering evidence. Gathering of evidence may entail recording witness statements, gathering documents, and video footage as may be relevant to the matter at hand.

It is essential that the person who does the investigation be someone who is not going to preside over the hearing. Our common law has a rule which states “nemo iudex in sua causa”, which basically means that no one should be a judge in his or her own cause. A complainant in a disciplinary case cannot end up being the hearing official. This also applies to witnesses. One cannot be a witness and a hearing official at the same time.

Hearing Official or Committee

The appointment and selection of a hearing official is governed by the code of conduct. If the code of conduct is silent on the question of appointment it is the obligation of the employer to select a hearing official or committee. As already mentioned, the right person or persons should not be interested in the dispute.

The composition of a committee is also in the normal course of events, prescribed by the code of conduct. A committee is usually formed by an equal number of employer and employee representatives and a chairman.[8] Decisions of whether a person is guilty or not guilty, as regards a committee, are usually decided by way of a vote, with the chairman of the committee having the right to put in a casting vote. Employee representatives in a committee are usually formed by members of a worker’s committee or the employee can provide representatives of his or her own choice.

It is important to note that when utilizing SI 15 of 2006, there is no limitation as to who can form part of a disciplinary authority. Any person or group of persons can be appointed to hear a case as was held in National Engineering Workers Union v Dube SC 1 – 2016.

The notification

At this stage, the employee is notified of the disciplinary hearing. Most codes provide for three days’ notification for the hearing.[9] This notice is meant to ensure that the accused employee has adequate time to prepare for the disciplinary hearing. Failure to give an employee the hearing notification vitiates the disciplinary proceedings. Notifying an employee of an impending disciplinary hearing is a basic rule of natural justice

The Hearing

Once an employee is notified of the disciplinary hearing it is expected that he or she should be heard. The process of hearing an accused employee entails important distinct stages. So important are these stages that failure to respect them may result in a fatal irregularity, nullifying the proceedings. It is the duty and obligation of the hearing official and or the committee to ensure that the correct procedure is followed. The hearing procedure depends on a code but generally, the items stages discussed below are expected.

Reading out the charge

During the hearing, and before evidence is led, it is expected that the accused employee must know the details of the charge. This is besides the fact that this will also be the charge given to the employee when the process started. At this stage, the official presiding over the hearing must read the charge which is contained in the hearing notification or any other document that the employee may have received. The purpose is to ensure that the employee is given an opportunity to plead either as guilty or not guilty. Once this is done, the evidence is expected to be led.

We submit that even where an employee pleads guilty, the hearing tribunal should hear the evidence forming the basis of this plea. This will allow it to come up with a proper penalty. This will also allow the tribunal to determine if indeed the accused is guilty. In the administration of justice, it’s not surprising that persons may be intimidated into pleading guilty without fully understanding the consequences. Ensuring that evidence is led, will allow those presiding over hearings to fully determine and ascertain an individual’s culpability before imposing the appropriate penalty.

Presentation of Evidence

The evidence emanating from the investigation done before the commencement of the disciplinary hearing is expected to be presented in the hearing. Evidence is usually presented through witnesses. These can either be the complainant’s witness or the accused’s witness. The accused or the complainant can also present evidence. The general rule is that he who accuses a person must provide the proof.[10] Therefore, the complainant must provide evidence first before the accused rebuts what’s presented in the evidence.

Where witnesses are used, it is the person calling the witness that asks the witness the first set of questions. This is akin to the examination in chief that one expects to see in court proceedings. The adversary is also expected to cross-examine the witness. This tests the evidence provided in the examination in chief. Once this is completed, the person who called the witness can then reexamine the witness before the witness is excused from the disciplinary hearing.

Presenting evidence in this manner prevents confusion and allows fairness because every party is given an opportunity to ask questions and test the evidence presented. This forms the basis of the right to be heard in that an accused is given an opportunity to face his or her adversary and to confront the adversary through cross-examination. It also forms the basis for organized disciplinary hearings which buttresses a fair hearing.

General Rules of Evidence

Strict rules of evidence do not generally apply in disciplinary proceedings. The evidence should provide the committee or the official with an indication as to whether, on a balance of probability, the accused committed the offence or not. What constitutes a balance of probability is now settled in our jurisdiction. In Lewendo Ent. (Pvt) Ltd v Freight Africa Logistics (HC 2416/2014) it was held:

“The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff’s claim against the defendant’s defence.  It necessitates a decision of which of their versions of events is more likely to be true. In other words which version is more believable, or most likely to have transpired, than the other? It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff’s version being the correct one as opposed to the defendants, or vice versa. In making this determination we look at the pleadings, at the documentary evidence, at what the parties’ representatives said and did when they were in the witness stand, and finally at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.”

Proof on a balance of probability does not mean that every piece of evidence presented must be utilised in coming up with an outcome. Not every piece of evidence presented in a hearing is acceptable and should be taken into consideration. The primary rule of all the evidence to be presented in a hearing must be relevant to the issues under discussion. Evidence not connected to the offence and issues in question is not acceptable. Not taking into consideration such evidence, does not prejudice the accused employee. On the contrary, if relevant evidence is not taken into consideration, the proceedings may be vitiated as this may prejudice the accused.

It should be pointed out here that, even in situations where an employee is charged with an offence of a criminal nature, the burden of proof does not change. It remains that on a balance of probability. This is the standard of proof applicable to civil proceedings including disciplinary hearings.

Finding of Guilty or Not Guilty

When the evidence has been presented by both parties and correctly tested through cross-examination, it is important for the hearing official or committee to assess the evidence and determine on a balance of probability if the person is guilty or not guilty. At this stage, the hearing official, or the committee, as the case may be, does not impose a penalty. This is just a pronouncement of whether the accused person has been found guilty or not. Issuing a penalty at this stage is an irregularity because the employee so accused is will not have been given an opportunity to address the committee or hearing officer in mitigation. Equally so, the complainant will not have addressed the aggravating circumstances to the panel or tribunal hearing the dispute. This is thus a critical stage in the disciplinary process.

Mitigating circumstances

The hearing official or committee is under a legal obligation to be addressed in mitigation by the accused employee. This is a rule that applies in every disciplinary hearing. This is so as an extension of the right to be heard. If the accused is not given an opportunity to address in mitigation the proceedings may be vitiated to the extent that the employee did not address the hearing tribunal. Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) show the importance of addressing the hearing tribunal in mitigation.  In this case, failure by the hearing official to hear the accused’s mitigation led to the invalidation of all processes that had happened after this failure.[11]

Penalty

The imposition of the penalty marks the end of the disciplinary proceedings.[12] The penalty can only be validly imposed after the hearing tribunal has heard the points in mitigation as indicated above. The discretion to give an appropriate penalty is that of the tribunal. Any other person issuing a penalty would result in a gross irregularity.[13] In Hwange Colliery Company Limited v Benson Ndlovu & Andrew Ndlovu (SC46/20) the court pointed out that the discretion to impose an appropriate penalty must be respected.[14]

Internal Appeal

A party that is aggrieved with the proceedings can appeal internally and challenge the decision made at the initial hearing stage. An appeal is on the record meaning that the person hearing the appeal relies on the record of the initial hearing to challenge the outcome of the disciplinary hearing.[15] It is only when there are no internal appeal mechanisms that an aggrieved employee can appeal externally. In other words, there is a legal obligation on the part of an aggrieved person to ensure that all internal remedies provided in the code of conduct and the Labour Act are exhausted before appealing externally. We end this discussion by analyzing the legal obligation to exhaust these domestic remedies.

A need to exhaust all procedures in a code of conduct

Once proceedings under a disciplinary code of conduct have been initiated, the parties, the accused employee included, have a legal duty to ensure that they exhaust all the remedies provided under that code. Section 101(5) of the Labour Act (Chapter 28.01) precludes an aggrieved person from referring a matter to a labour officer. This section reads:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

The section is clear, a labour officer doesn’t have jurisdiction to entertain a dispute that is still under the realm of the code of conduct. An accused employee must appeal internally first and ensure that all channels are exhausted before appealing externally.

Individuals fall into the trap of prematurely referring disputes that are still within the ambit of domestic channels. Jambwa v GMB (HC 11113/11) is one case in which an employee decided to appeal to the High Court against a decision of a General Manager for GMB whereas the code of conduct clearly stated that such appeal should be referred to the Labour Court. In its decisive remarks the court had this to say:

“In casu an appeal to the Labour Court from a decision of the General Manager is a domestic remedy available to the applicant. It is able to afford him redress. Therefore, the applicant has not exhausted domestic remedies as he should have proceeded in the Labour Court by way of appeal. The application cannot succeed on that basis.”

The same problem was also witnessed in Moyo v Gwindingwi N O & Anor HB 168/11 in which the courts also thought:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

These cases clearly point to the need for an aggrieved party to fully comply with the provisions of a code of conduct. If a wrong forum is approached that forum will have no option but to dismiss such an appeal.

Conclusion

The process of engaging in a disciplinary hearing is not a haphazard process. Distinct steps have to be followed by all those involved. The employer has a duty to ensure that an employee is not unfairly dismissed. This duty points to the need to religiously follow a code of conduct. Failure to follow all the processes outlined above may result in the invalidation of the proceedings.

[1]              Muchechetere v ZBC (Private) Limited and 2 Others (143-2021).

[2]              See City of Gweru v Richard Masinire (SC 45/13) where it was held: “Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor Madhuku and CH Mucheche, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It, therefore, appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for a good reason to apply any other dispute resolution mode”.

[3]              City of Gweru v Richard Masinire (SC 45/13).

[4]              See Section 6(1) of Statutory Instrument 15 of 2006 which provides: “Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension”

[5]              See Section 6(1) of Statutory Instrument 15 of 2006.

[6]              See Section 70(1) of The Constitution of the Republic of Zimbabwe, 2013. 

[7]              See the National Code of Conduct which provides, under Section 6 (2) that: “Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case— (a) ….; or (b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.”

[8]               See the National Code of Conduct which provides, under Section 2 that: “disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employee’s representatives, to preside over and decide over disciplinary cases and/or worker grievances;”

[9]              See the National Code of Conduct which provides, under Section 6(4) that: “At a hearing in terms of subsection (2), an employee shall have the right to— (a) at least three working days’ notice of the proceedings against him or her and the charge he or she is facing”.

[10]            See British American Tobacco Zimbabwe v Chibaya (SC 30/2019).

[11]            See Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) where the court held: “It would follow from what is set out above that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation and sanction.”

[12]            See Muchechetere v ZBC (Private) Limited and 2 Others (143-2021).

[13]            In Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) it was held: The disciplinary authority in casu was prevented from conducting ‘the proceedings properly’ by the employer who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself. Accordingly, the ‘sentencing’ stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.

[14]            The Court said: “What all the authorities point to is that the discretion of the employer must be respected. It is not just a question of the appellate court, in the comfort of its chambers or courtroom, deciding to substitute its own discretion merely because it holds a different view from that of the lower court.”

[15]             In Reserve Bank of Zimbabwe v Granger & Anor SC 34/01, the Supreme Court noted that “An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

6,596 Views

NEC – Catering Industry v Richard Kundeya & Others SC 35-2016[1]

“Whether or not the mitigating factors outweighed aggravating circumstances was therefore an irrelevant consideration, unless the manner in which that decision was arrived at was shown to be unreasonable.  Once the employer had proven that the respondents had committed a serious dismissible act of misconduct and in the absence of any error, gross unreasonableness or misdirection, their fate lay firmly in the hands of the employer in terms of s 7 (3) of the National Employment Code of conduct.  The discretion whether or not to extend mercy lay with the appellant in its capacity as the employer.”

Introduction

This case deals with the reversal of a penalty of dismissal by the Labour Court. It also explains the discretion of the employer to dismiss an employee where a serious offence going to the root of the employment relationship is committed.

Facts

The respondent employees were employed as chief designated agents by the Appellant company.  They were given notices of transfers in August 2012. They were to work in various locations with effect from 1 January 2013. The transfers were in line with the employer’s policy and practice to rotate designated agents after serving in a particular area for a given period. 3 months’ notice was provided to the employees. The employees objected to the transfers. The Appellant NEC charged the respondents with wilful disobedience to a lawful order in terms of S.I. 15 of 2006. In the alternative they were charged with, any act or omission inconsistent with the fulfilment of the express or implied conditions of the employment contract in contravention of section 4 (a) of the statutory instrument. The disciplinary committee found all four employees guilty as charged and ordered their dismissal from employment. Aggrieved the employees appealed and an arbitrator confirmed their convictions but reduced the penalties from dismissal to final written warnings. The basis for this decision was that the mitigating factors outweighed the aggravating factors. Aggrieved by the arbitrators’ findings, the company unsuccessfully appealed to the Labour Court. The company then appealed to the Supreme Court.

The law

The Supreme Court, first recognised the need for employees to submit to the employer’s authority. It said that this was premised on the common law and statutory law of the country. The National employment Code of conduct merely codifies the common law. Without subordination to an employer’s authority, the Supreme Court argued, there cannot be a contract of employment. The court further found that, because the employees were in open defiance of their employer’s lawful orders, there is no dispute that they were correctly found guilty as charged by the disciplinary committee.  The disobedience was wilful and deliberate, therefore going to the root of their respective contracts of employment.

Further, the Supreme Court confirmed what the court has emphasised on several occasions that the employer has the discretion to dismiss an employee who commits a serious offence. It said:

“It is important to note right from the outset, that where an employee commits a dismissible act of misconduct under s 4 the law vests the discretion whether or not to dismiss the offending employee on the employer alone and no one else”.

The court found that the both the arbitrator and the Labour Court exercised a discretion to alter the penalty, which discretion they could not exercise in terms of section 4 of the National Employment Code of Conduct. Generally, an appellate court, arbitrator or tribunal cannot substitute its own discretion for that of the employer in the absence of unreasonableness.

The court also found that moral and compassionate grounds cannot be used to justify a reversal of a penalty of dismissal.

Conclusion

The Supreme Court allowed the appeal and confirmed the dismissal of the four employees.

Own Comment

Two lessons are apparent in this case. The first lesson is that if an employee commits a serious offence, the employer has a choice to dismiss the employee. Once an employer elects to dismiss there is no tribunal clothed with the power to reverse the dismissal. Reversal of a penalty given by an employer can only be done in exceptional circumstances like in instances where a disciplinary tribunal laboured under a wrong principle of the law or facts. See also ZIMPLATS v Ronald Godide (SC 2 – 2016) discussed above.

Secondly, the court emphasised that moral and compassionate grounds cannot be used to reverse a decision made by a disciplinary committee or authority.

[1]              National Employment Council for the Catering Industry v Richard Kundeya and Others SC 35-2016.

1,264 Views

Eunice Madondo v Conquip Zimbabwe (Private) Limited SC (25 – 16)

“I have no doubt in my mind that in addition to being a pension claim form directed to the pension company concerned, the same document carried a clear and unequivocal message or notice directed to the respondent, that the appellant was tendering her resignation. To suggest that it was not such a notice by virtue of its composite purpose would, in my view, be to unnecessarily emphasize form over substance. As indicated earlier, there is no set format or method of communicating the act of resignation.”

Introduction

Resignations come in all shapes and sizes. We contend that a resignation is pretty much straightforward. An employee simply puts across their unequivocal intention to end the employment relationship and that’s it, the employment ends. Whilst resignation is this candid, Eunice Madondo v Conquip Zimbabwe (Private) Limited SC 25 – 16 illustrates how a resignation may result in a dispute. The case also shows how a court may end up ordering costs on the legal practitioner and client scale.

The Facts

The Appellant employee was employed by the respondent company as a Finance Director from May 2007 up to February 2012. In February 2012 she had a dispute with the respondent Managing Director and General Manager which dispute had resulted in her suspension from work. On 13 February 2012, the appellant completed a “Pension Withdrawal Claim Form”. The form had a section where she was supposed to indicate her reasons for withdrawing from the pension. She indicated that it was because she was “leaving Conquip.”  The General Manager signed the form and in turn, she was paid her pension. The disciplinary proceedings that had been planned were set aside on realizing that she had resigned. Aggrieved she approached a labour officer and eventually an arbitrator who ruled that she had resigned. The Labour Court agreed with the Arbitrator. She remained aggrieved resulting in the Supreme Court appeal.

The Law

The Supreme Court looked at the definition of the word resignation. After utilizing the Oxford Advanced Learner’s Dictionary, it was apparent that resignation means: “an act of giving up one’s job or position”.

Having defined resignation it went on to state that:

“The form a notice of resignation should take is not ‘cast in stone’ as it were. One can resign verbally, by a letter or through whatever way may be preferred as long as the communication is transmitted to the correct recipient. In casu the Pension Withdrawal form which was filled by the appellant contained a section which required one to state the reason why he or she wished to withdraw the pension contributions or why they no longer wanted to be part of the pension scheme. This is where the appellant stated her reason as “leaving Conquip.” Taking the Oxford Dictionary definition of a resignation I am satisfied that this reason denoted an ‘act’ by the appellant, of giving up her job.”

The appellant’s act of presenting the form to the General Manager showed that she was resigning, the court observed. When the General Manager signed the form, the communication of the resignation was made. The court also looked at the law in the case of Jakazi & Anor v The Anglican Church of the Province of Central Africa (SC 10/13) where the Supreme Court stated that:

“The law is clear. Resignation is a unilateral act which takes effect upon being communicated.”

It thus followed, in the court’s view that at the time the Appellant indicated on the form that she was “Leaving Conquip” the resignation was communicated and acknowledged by the General Manager. Her argument that she had withdrawn from the pension fund so as to get money for school fees was found to be unacceptable.

Conclusion

At the close of the case, the court ordered that the appeal had no merit and was dismissed on the legal practitioner and client scale. In justifying this scale of costs, the court decided:

“The appellant must have known that the appeal had no merit but nevertheless persisted with it all the way to this Court. In the process, she put the respondent to the unnecessary expense of defending the litigation”.

Own Comment

The case is clear cut, once an individual communicates unequivocally that they are leaving employment, it means they have resigned. It does not matter whether such communication is in the form of a Pension Withdrawal Form, email, verbally etc. It may be added that, being a unilateral act, the employer does not need to acknowledge a resignation. Once it is communicated, the employment relationship comes to an end.

1,103 Views

National Engineering Workers Union v Dube (SC 1 – 2016)

“Firstly, there are two definitions of ‘disciplinary committee’ in the definitions section of the Code. There is one that I will refer to as a “stand alone” definition, and the other that is subsumed under the definition of ‘disciplinary authority.’ This means that a disciplinary committee as so subsumed, is one of the ‘bodies’ that may constitute a disciplinary authority, just like the ‘person’ or ‘authority’ mentioned in the definition in question”.

Introduction

This dispute is remarkable. What was before the Supreme Court was a question as to whether a disciplinary hearing that dismissed an employee was constituted as a committee or an authority in terms of SI 15 of 2006.

The Facts

An employee was charged and dismissed in terms of the National Code of Conduct. Aggrieved, the employee approached a Labour Officer and an Arbitrator, which proceedings ended with a conclusion that the employee must be reinstated because the committee that heard the matter was not properly constituted. The Appellant appealed to the Labour Court and the court ordered the payment of damages to the employee. This then founded the Supreme Court proceedings. In summary, before the Supreme Court were essentially three questions:

  • Whether the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee.
  • Whether the adjudicating authority was properly constituted, and
  • Whether the court a quo erred by proceeding to order that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

The Law

The Labour Court and the Arbitrator had concluded that the disciplinary committee that heard the dispute was not properly constituted. The appellant argued that it was not a committee but a disciplinary authority. According to the Supreme Court, the evidence presented showed that the employer intended on setting up a disciplinary authority as opposed to a disciplinary committee. The court firmly remarked:

“Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Code as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated. It is all left to the employer’s discretion. In the proceedings in question and in compliance with s 6(1)(4)(b) of the Code, the respondent was allowed to bring, and be represented by, her legal practitioner”.

The remarks above are important in so far as they show that an employer has discretion in terms of who constitutes a disciplinary authority. It can be a group of people or even one person. The employer in question had set up a disciplinary authority as opposed to a disciplinary committee.

Regarding the award of damages in the absence of evidence, the Supreme Court found this to be an irregularity in the following terms:

 “That award, in addition to not having been requested by the respondent, is without any discernible basis. It invokes the commonly used catch phrase: “plucked from the air.” This Court has expressed itself on numerous occasions on the undesirability of the court proceeding in this manner.”

Conclusion

The matter was remitted to the Labour Court for a hearing on the merits.

Own Comment

What is likely to catch one’s eye is the way the Court distinguished between a disciplinary committee and a disciplinary authority. There is therefore no restriction as to who can form an authority, the size, and the composition. All is left at the discretion of the employer. It is therefore imperative that when an employee is charged in terms of the national code of conduct, the employer must ensure that there is clarity in terms of the type of body that is going to hear the disciplinary hearing. This clarity must be provided in the form of documents that are used to summon the employee for the hearing. If it is a committee, what follows is an obligation to ensure that the parties are equally represented. No doubt therefore that most employers would prefer using an authority as there is no restriction as to who can be part of the hearing panel.

The case is also important in showing what the Supreme Court has repeatedly held in various judgements as far as the quantification of damages is concerned. The court has strongly held that damages in lieu of reinstatement must be supported by the evidence presented by the parties. In

 Heywood Investments (Private) Limited T/A GDC Hauliers v Pharaoh Zakeyo (SC 32/2013) the Supreme Court held:

“What the court is not empowered to do is to award damages in the absence of any evidence in support of such award.”

The same sentiments were also echoed in Monterey Estate (Private) Limited v Kenny Broxham (SC 49 – 16) and in Erickson Mvududu v Agricultural and Rural Development Authority (SC58/2015). It is therefore fatally irregular for a court to consider quantification of damages in lieu of reinstatement without accepting any evidence from the parties.

1,574 Views

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”.

2,355 Views

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.

1,172 Views

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:

“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.”

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.

1,241 Views
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