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FAWU v SAB and Solidarity (South African Case No: J 435/20)

“The irony that belies this matter is that the applicant complains about the efficacy and reliability of the zoom application (a video conferencing application) as a proposed medium to complete the already commenced facilitated section 189A consultation process, yet the urgent application was moved through the same application.”

Introduction

In this short article, I highlight the important aspects of a matter between FOOD AND ALLIED WORKERS UNION (FAWU) (Applicant) and SOUTH AFRICAN BREWERIES (PTY) LTD (SAB) (First Respondent) SOLIDARITY (Second Respondent). The dispute turned on whether using the zoom application to contact a retrenchment consultation is a fair procedure in terms of the South African Labour Legislation. I will concentrate on this aspect of the dispute because the other parts of the dispute may not apply in the Zimbabwean context.

Facts

In January 2020 the employer started the process of restructuring the workplace. Such required that a retrenchment exercise be implemented. Before the retrenchment, it is necessary to make consultations with the affected parties. These consultations were hindered by the state of disaster that was pronounced by the President of SA in response to the COVID-19 virus. Proposals that the consultation process continues through the ZOOM application were put across, but parties could not agree leading to an impasse. The impasse founded the current application.

The legal question

The question before for court, among others, was “whether conducting

section 189 consultation process through zoom application is acceptable or not and if unacceptable, is a continuation of a section 189 consultation using the application amounting to a procedural unfairness.”[1]

Simply put, the court had to decide if the Labour laws of SA prohibit the use of ZOOM as a medium of consultation for retrenchment purposes. The same question can be posed in the Zimbabwean context. The answer that the court gave may also apply in the Zimbabwean scenario, we submit.

The court’s reasoning

The court’s attitude towards the purported unfairness of the ZOOM application is appropriately captured at the start of this article. It accepted that a new normal was ushered in by the pandemic and noted that the Labour Relations Act does not restrict persons on the form which retrenchment consultations can be undertaken.

The court also reasoned that the usage of the ZOOM application was meant to uphold the health and safety of people because of the pandemic. In buttressing the use of the ZOOM application, the court noted that:

“With the new normal – lockdown period during Covid-19 pandemic – zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue. Thus, the usage of the zoom application is not panoply. It is a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus are observed. Much as the applicant has its convenient preferences, those preferences are self-serving and are ignorant of the bigger issue of health and safety.”[2]

Challenges that can be faced in the process of utilising technology were accepted by the court, but it argued that this should not be used to relegate technology to the extent of making it useless.

In the result the court did not support the argument that the use of the ZOOM application for consultations can lead to procedural unfairness.

Own Comment

Back home it is observed that we are not spared by the new normal. Various mechanisms have been put in place by authorities to curb the spread of the COVID-19 virus. Face to face interaction as we used to know them traditionally are no longer applicable. Retrenchment exercises are also affected

 The use of technology in labour relations can not be escaped. Since our labour laws do not provide a restriction on how technology can be utilised in retrenchment issues and matters incidental thereto, we submit that ZOOM application or any other video conferencing application can be utilised for such purposes. Further, it is submitted that the use of such technology cannot be deemed procedurally unfair.

[1]           FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 2.

[2]              FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 11.

1,395 Views

MISHECK MABEZA v SANDVIK MINING AND CONSTRUCTION (PRIVATE) LIMITED SC91/19

“It is therefore clear to the naked eye that he could not lodge a complaint with the labour officer alleging unfair dismissal. The labour officer would not have the jurisdiction to entertain any complaint from the appellant as what the appellant was seeking was the setting aside of the determination of the disciplinary process. This process could only be set aside through an appeal or a review. The process before the labour officer was none of the above.”

INTRODUCTION

The National Code[1] provides that if one is aggrieved by an internal appeal result one may refer such a matter to a Labour Officer. Once this dispute has been referred as such, section 93 of the Labour Act will apply.[2] At face value, the national code seems to suggest that labour officers have the jurisdiction to hear appeals from disciplinary hearings held in terms of the national code. This is not correct; the Supreme Court has spoken!

The fundamental principles in Misheck Mabeza v Sandvik Mining and Construction (Private) Limited have far-reaching consequences but until this change, these will continue to determine how appeals in terms of the national code will be handled.

FACTS

The brief facts of this matter are that the employee, Misheck Mabeza was accused of failing to adhere to an instruction given by his employer. He was charged and dismissed for this failure in terms of the national code of conduct. Internal appeals upheld the dismissal. He lodged a claim of unfair dismissal with a labour officer under the Ministry Of Labour. Conciliation failed as per the dispute resolution mechanism that was applicable, the matter was referred for compulsory arbitration whereupon the arbitrator concluded that the dismissal was unfair. An appeal was lodged at the labour court by the respondent company. The labour court concluded that the employee had committed the offence and set aside the arbitral award.  Aggrieved by the LC ruling, the appellant employee mounted the SC challenge.

THE COURTS REASONING

Section 101(5) and (6) of the Labour Act

The court assessed section 101(5)[3] and (6)[4] of the Labour Act. It concluded that appealing against a hearing to a labour officer will not be proper in terms of the labour act. The labour officer, the court argued, should not entertain a completed hearing. In other words, labour officers do not have the jurisdiction to hear appeals or reviews of disciplinary hearings.

This argument by the court was summed up in its pronouncement that:

            “In my view, the principle emerging from all the authorities referred to          above can be summarized by the statement to the effect that a         labour officer does not have any jurisdiction under s 93 to entertain a       matter once a determination on the merits has been made through a     disciplinary process under a registered code of conduct. It is clear that    in this case the labour officer presided over a matter over which he did       not have any jurisdiction.”

In summary, labour officers do not have appeal or review jurisdiction over matters emanating from a disciplinary hearing held in terms of the National Code.

Failure to adhere to an instruction lawfully issued

On the merits, the court made an important finding that the employee had deliberately failed to execute an instruction from his employer. The propriety of the charge and resultant dismissal was in the result not questioned.

Own Comment

I fully understand this judgement from the fact that the National Code is a delegated legislation enacted by the Minister in terms of section 101(9)[5] of the Labour Act [Chapter 28:01].  In terms of the principles governing subordinate legislation, it is accepted that subordinate legislation must be read and interpreted together with its enabling Act and that the subordinate legislation must not be in conflict with the enabling legislation.[6] It follows that when the subordinate legislation conflicts with the enabling act the court will have no option than to follow the enabling Act.

We submit that the court correctly noted that such an inconsistency between the Labour and the National Code was bad to the extent that no purposive interpretation can cure it to allow a labour officer to exercise appellate jurisdiction over matter emanating from completed hearing proceedings.

[1]           See section 8(6) of Labour (National Employment Code of Conduct) Regulations, 2006

[2]           See section 8(7) of Labour (National Employment Code of Conduct) Regulations, 2006

[3]           Section 101(5) of the Labour Act 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”.

[4]           Section 101(6) of the Labour Act reads: “If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

[5]           Section 101(9) of the Labour Act reads: The Minister may, after consultation with    representatives of trade unions and employers organizations, by statutory instrument publish a model employment code   of conduct.

[6]           Botha CJ Statutory interpretation: an introduction for students (Juta) 2012.

2,819 Views

INTERPRETING A CODE OF CONDUCT

Labour disputes can turn on the interpretation of a code of conduct. Interpretation entails the process of construing the text of a code to come up with the true meaning of an instrument. Our courts have designated various principles that we can utilise in the process of interpreting a code of conduct. We submit that to a greater extent; these principles have similarities with the rules of statutory interpretation.

Ordinary grammatical words in the code

Words in a code of conduct provide the primary guidance and a starting point in the process of ascertaining the correct/true meaning of a code and its provisions.

The words should be given their ordinary grammatical meaning unless if this can result in some anomaly.[1] This is the same principle that courts have used to interpret legislation in several circumstances.[2]  This principle was appropriately explained in Venter v Rex[3] wherein the court noted that :

“it appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.” (own emphasis)

The sample principle, it is submitted, is available in the interpretation of a code of conduct. In Circle Tracking v Mahachi the courts buttressed this rule and mentioned that:

“The term corruption in the context of the Code must be given its ordinary grammatical meaning and not be construed within the criminal context.” (own emphasis)

In coming up with the ordinary grammatical meaning of words in a code the dictionary meaning of the words may be unavoidable as will be explained below. Once the grammatical meaning of the text has been taken into consideration other elements of the process may come in. These, depending with the circumstances, include the context of the words as well as the intention of the drafters of the code.

Dictionary meaning of words

Construing words in a code of conduct may at times boil down to the dictionary meaning of a word. This is not a new approach as courts have utilised dictionaries to come up with the correct meaning of words in a legislation. In Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd[4] it was pointed out that:

            “Dictionary definitions of a particular word are very often of     fundamental importance in the judicial interpretation of that word in a          statute or in a contract or in a will.”

A good example of where a dictionary was used to construe meaning in a code is encapsulated in the matter between Circle Tracking v Mahachi.[5] An employee was accused of carrying unauthorised passengers in a company vehicle. The employer charged him for corruption and subsequently dismissed him. The employee disputed that the act of carrying unauthorised passengers cannot be construed as corruption. The court then turned to the dictionary and mentioned:

            “The issue is whether the conviction on an allegation of corruption is proper. The word corruption is defined in the Concise Oxford Dictionary    as:

“decomposition; moral deterioration; use of corrupt practices (bribery, etc); perversion (of language, text, etc.) from its original state; deformation”.

Dictionary meaning of words thus represents a cannon that can be used to interpret a code. This is not the end, however. The context within which the words are found may also crucial in certain situations. This will be discussed next.

Context of the words in a code

It is also submitted that for the true meaning of words in a code of conduct to be construed, the context within which they are used should also be taken into consideration. Context represents such aspects as ambit and purpose of the code of conduct, among others. The importance of context is that brings out the true intention of the drafters of the code.

Illustrating the importance of context in words found in a statute is the Circle Tracking[6]  case discussed above. The court in this matter argued that:

            “The term corruption in the context of the Code must be given its      ordinary grammatical meaning and not be construed within the criminal       context. Indeed, some decisions of this Court have stressed that a Code of Conduct should be interpreted in such a way as to give effect to the   intention and spirit of the Code of Conduct.”

As mentioned, the context of the code of conduct helps in establishing the intention of the drafters of a code.

The intention of the drafters of the Code

It is submitted that all the cannons discussed so far are meant to bring out the intention of the drafters of the code of conduct. By reverting to the ordinary grammatical meaning of words in a code of conduct, one will be avoiding the mistake of interpreting these words strictly from a legal perspective.

It is accepted most codes are usually drafted by persons who are not as skilled in drafting legal documents as lawyers.[7] In a courtroom, such codes will not avoid being in the hands of lawyers. Mindful of the irony, courts have accepted that code of conduct should not be interpreted in such a manner as to give all words in it their legal meanings.[8]

Avoiding Technicalities

The process of interpreting a code of conduct should be balanced to avoid technicalities. The whole process should be guided by the general rule of resolving labour disputes which are premised on the need to avoid resolving labour disputes based on technicalities.[9]

The court in Passmore Malimanjani v Central Africa Building Society (CABS) took a robust approach and concluded that:

“Details of conduct that would constitute such offences must be viewed in the light of being examples. They could not possibly have been meant to be exhaustive. Viewing them as exhaustive would result in the ridiculous situation where someone who commits an offence that in the ordinary sense would constitute the conduct in question, e.g. dishonesty, would walk free simply because the specific offence was not listed as an offence. That could not have been the intention of the drafters of the Code, who, in general, are not schooled in the law.”

Indeed, the intention of the drafters of a code should always be taken into consideration and this would require that a code be interpreted careful manner lest we fall in the undesired trap of resolving labour disputes based on technicalities.

Conclusion

From the foregoing discussion, it can be summarised that the process of interpreting a code of conduct is equivalent to the process of interpreting a statute. One needs to be careful that codes of conduct are usually drafted by laypersons who are not lawyers. The intention of such drafters has to be construed to give content to the true meaning of a code. The process of construing a code involves taking into consideration the ordinary grammatical meaning of the words against the context as well as giving effect to the intention of the drafters.

Further Reading

[1]           Circle Tracking v Mahachi (SC 4/07).

[2]           Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[3]           Venter v Rex (1907 1907 TS 910).

[4]           Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W).

[5]           Circle Tracking v Mahachi (SC 4/07).

[6]           Circle Tracking v Mahachi (SC 4/07).

[7]           See Passmore Malimanjani v Central Africa Building Society (Cabs) (SC 47/07).

[8]           See Circle Tracking v Mahachi (SC 4/07).

[9]           See Dzvairo v Kango Products (SC 35/2017).

1,848 Views

GODFREY TAPEDZA v ZERA AND NEC FOR THE ENERGY INDUSTRY SC 30/20

Introduction

Have you ever wondered if your company falls within a certain industry? Have you ever found yourself in a situation were two National Employment Councils claim that your corporate falls within their ambits? Well, you are not alone.

Godfrey Tapedza v ZERA and NEC for the Energy Industry is a Supreme Court case that involved a dispute over whether the Zimbabwe Energy Regulatory Authority (ZERA) falls within the energy industry. The law outlined by the Supreme Court, in this case, is crucial for anyone facing a predicament like the one mentioned in my opening statement. In this article, these elementary principles will be discussed.

Facts

A Collective Bargaining Agreement (CBA) was reached by players in the energy industry. ZERA at one point indicated that it had complied with the CBA. The regulatory authority then decided at a later stage, that it was not a player in the energy industry and thus not bound by the CBA.

The Labour Court ruled that it was not a member of the energy industry and thus not bound by the CBA.

The dispute was brought before the Supreme Court and it boiled down to whether ZERA fell within the energy industry.

The Law

Definition of the energy industry

The first important finding that the court made was that the definition of the energy industry did not include “regulation” of the energy industry. The definition included persons involved in the “generation, procurement, distribution, production and transmission of energy to consumers thereof”.

Using the various cannons of interpretation of legislation, the court concluded that ZERA did not fall within the ambit of the energy industry. It was not bound by the Collective Bargaining Agreement.

The rules of legislative interpretation utilised by the Supreme Court will be assessed next.

The golden rule of statutory interpretation

The court argued that the ordinary grammatical meaning of words in a statute should be followed unless doing so would lead to some form of inconsistency with the intention of the legislature.

 It then concluded that the words in the statute were clear and unambiguous and required no purposive interpretation. Persons listed in the legislation were the ones covered by it. Such persons, the court argued, did not include those involved in the “regulation” of the industry.

Expressio uninius rule

This is a rule of interpretation according to which the inclusion of one class of things automatically excludes all other members of the class.

Using this rule, the court realised that fact that the definition of the energy industry included a certain class of activities. It followed that another class of activities had been excluded. This rule thus pointed to the fact that the “regulation” of the energy industry was excluded by the legislature.

The intention of the legislature

Related to the rules indicated above, the court pointed that if the legislature had intended that ZERA be a player in the energy sector it would have expressly provided for that.

Disposition

The court, inevitably, concluded that ZERA is not a player in the energy sector and dismissed the appeal with costs.

Conclusion

This judgement was well reasoned. The definition of the energy sector was clear and unambiguous and required no purposive interpretation.

As mentioned earlier on, the principles outlined in this dispute can easily be applied by any other employer wondering which industry his or her operation falls under.

1,969 Views

ZB BANK LIMITED v TIRIVANHU MARIMO SC 21/20

Introduction

The matter outlines principles that are crucial in instances where an employee acts in a manner inconsistent with his or her contract of employment.  It also reflects the delicate balance that workers committee members must maintain in fostering the rights of employees whilst being loyal to the code of conduct. It is thus the authority to the fact that a workers committee chairman will not be exonerated of unlawful conduct based on his capacity as an employee representative.

Facts

The respondent was a workers committee chairman. There was a dispute over salary increments which had resulted in a certificate of no settlement, the dispute having been brought to the attention of a labour officer. The respondent employee proceeded to sent out emails to his fellow employees disclosing percentage adjustments that had been made to their fellow managerial employees. He proceeded to encourage an industrial action as a result of which he was charged for having acted in a manner inconsistent with his employment contract.

The Law

Official Duty as a Workers Committee Chairman

The respondent employee contended that he sent out the emails to his colleagues in his official capacity as a workers committee chairman and this made his actions less of an offence. This viewpoint was upheld by the NEC Appeals Board and the Labour Court. These two forums accepted that the respondent employees breached the appellants’ policy, but the offence did not warrant dismissal.

The court however found merit in the appellant’s argument that the fact that the respondent was a chairman does not mean that he had the power to act outside the law. It thus noted:

“The right to champion workers’ rights is in my view not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated, in this case, by the relevant code of conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It falls to reason therefore that the respondent would not be able to hide behind his position as the chairperson of the workers’ committee should the conduct alleged against him be proved.”

Chidembo v Bindura Nickel Corporation

The supreme court took note of the arguments that had been put forward in the Chidembo matter and pointed that, the fact that one is a workers committee chairman does not mean that they will be vindicated from unlawful conduct. The court in Chidembo had decisively noted that:

“The disclosure of confidential information without the requisite authority of the employer remained an unlawful act in terms of the respondent’s code. The fact that the appellant committed the misconduct while performing his role as the worker’s committee chairperson is of no moment. This is because his status as a workers’ committee chairperson did not turn what was unlawful, into a lawful act”

The seriousness of the offence

Having noted that the employee indeed committed the offence of disclosing confidential information, the court took note of the matter between Wala v Freda Rebbeca Gold Mine where the seriousness of an offence was defined. In that matter the court had the opportunity to mention that:

“The seriousness of misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found guilty of went to the root of the contract of employment in that it had the effect of eroding the trust the employer reposed in him as found by the arbitrator could it still be said that the misconduct was trivial to warrant a penalty of dismissal? The appellant worked against company policy. It is a serious act of misconduct for an employee to deliberately act against the employer’s policies to advance personal interests.”

Propriety of the decision to dismiss

The court supported the view that dismissal is the appropriate penalty in the circumstances because the employer took a serious view of the offence committed by the respondent employee.

Conclusion

The bottom line is that a workers committee chairman or a representative cannot violate a company code and expect to get away with it. Once an employer takes a serious view of an offence committed an employee will not escape liability.

1,929 Views

LOWVELD RHINO TRUST V DHLOMO-BHALA (SC 34-20)

Introduction

Lowveld Rhino Trust v Dhlomo-Bhala is a matter that deals with the question whether the noting of an appeal at the Labour Court has the effect of suspending the registration and execution of an arbitral award being appealed against.

 A common mistake made by practitioners is were they note an appeal at the Labour Court and hope that an arbitral award will not be executed.

Lowveld Rhino Trust v Dhlomo-Bhala clearly outlines the law that applies to this subject and should be used as authority to the principle that the noting of an appeal against an arbitral award will not suspend the operation of the same.

The facts

The dispute arose when the appellant sent a mutual termination agreement to the employee (the respondent). Aggrieved by the letter the respondent argued that the termination was not mutual resulting in the matter going through conciliation and arbitration. The arbitrator came up with an award noting that the employee was unfairly dismissed. It was this award that was successfully registered with the High Court which then resulted in this current appeal.

Reasons for the judgement

Appeals to the Labour Court

  • The Supreme Court noted that section 92E (2) of the Labour Act governs all appeals and this section indicate that:

  “An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against”.

  • This critical and decisive finding was supported by the common law as will be noted below.

The Labour Court as a Creature of statute

  • The Supreme Court noted that the Labour Court was a creature of statute.
  • By creature of a statute, it is meant that an institution such as a court was created by statute.
  • The Courts finding was therefore that, the Labour Court can only do that which it is permitted to do in terms of this founding statute and remains bound by section 92E(2) mentioned above.

Vengesai and Ors v Zimbabwe Glass Industries Ltd 1 998 (2) ZLR 593

The court relied on the reasoning found in the Vengesai matter where the court had this to say:

“The grant or withholding of a stay of execution is at common law a matter of discretion reserved to a court in which such a discretion is imposed. It follows that in absence of any statute specifically conferring such a discretion on an inferior tribunal or authority, or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the conferred by statute. It cannot order the suspension of its own judgment pending an appeal. It has no discretion to enforce its own judgment notwithstanding an appeal. The only basis upon which its judgment or order can be supposed to be stayed is where its enabling statute provides for the situation.”

Vengesai and Ors v Zimbabwe Glass Industries Ltd simply supported the argument that the Labour Act does not provide for the suspension of an arbitral award when its appeal against.

Safeguarding interests after an appeal against an award

The court highlighted that for one to avoid the execution of an award after noting an appeal against it, section 92E (3) of the Labour Act will have to be utilised. The section provides:

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”

The court emphasised that such an application does not give the Labour Court authority to suspend the registration of an award rather, it has the power to suspend the execution of the award after registration.

Chamber application as the correct procedure

The court also acknowledged that a chamber application is a correct procedure for the registration of an arbitral award.

Conclusion

The big lesson in Lowveld Rhino Trust v Dhlomo-Bhala (SC 34-20) is that an appeal against an arbitral award does not suspend the registration and execution of the same. Section 92E (3) of the Labour Act should be invoked by anyone contemplating protecting their interests after the appealing against an arbitral award.

1,494 Views

IMPACT OF STATUTORY INSTRUMENT 33 OF 2019 ON DAMAGES IN LIEU OF REINSTATEMENT

QUERY:

“I have a labour matter in which I was constructively dismissed in 2016 and the labour officer made a ruling in my favour and in March 2019 I made a claim for quantification of damages and a ruling was made on 1 August 2019. I had made a claim in USD, but the labour officer went on to make a ruling with only a “$” sign. I had opposed its confirmation and prayed for an alteration that the award should be USD not ZWL and that the damages would then be converted from USD to ZIM$ at prevailing interbank rates when payment is made but the court was of the reasoning that in the absence of such specification of USD the amount can only be ZWL and also SI33/2019 (4)(d) would apply in this instance regardless of the fact that the assessment of the damages was made after the promulgation of the statute. As for considerations to equity, the court overlooked its implication. My question is whether I have a basis for appealing the court’s decision. because the assessment of the damages was made after SI33/19   with reference to my USD salaries as such the claim was not within the ambit of the statute and the matter of considerations to equity.”

RESPONSE:

Introduction

There are two major hurdles in this instance. The labour Officer made a mistake in not mentioning that the values were not in USD but this does not change the current legal position. The said Statutory Instrument and subsequent amendments to the Finance Act now provide that all debts and monies owed prior to the SI should be converted to ZWL at 1:1.

SI 33 OF 2019 Provisions

The SI clearly provides under section 4(1)(d) that:

“…that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar;”

Finance Act Amendment

The amendments to the finance act now clearly indicate that court judgements and obligations created prior to the coming in of the act should also be converted at the same rate. In this regard, The Finance (No. 2) Act, 2019 now provides under section 22(4)(a) that:

“.. it is declared for the avoidance of doubt that financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall on the first effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar;”

Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Another

The second hurdle is the recent Supreme Court judgement that affirmed the position that all debts and judgements before the SI should be converted at the rate of 1:1. In terms of the judgement in Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Another SC3 20, the following is the contemporary position:

“Once a conversion of the value of an asset or liability denominated in United States dollars is made to the value of RTGS dollars, the converted value remains the same, as the two different currency denominations both carry value. No exchange rate can be applied as the judgment debt remains a judgment debt with a value after it is converted to the local currency. The RTGS dollar has the value given under the one-to-one rate and it remains on that value even after the effective date.”

Conclusion

As a result of these authorities, it is doubtful, in my view, if any court would award damages in USD.

5,222 Views

TERMINATION AFTER THE END OF A PROBATIONARY PERIOD

QUERY:

“An employer wants to terminate an employee’s contract for failure to perform to expectations 2 weeks after end of probation. The employer had not yet confirmed the employee, so the question is are there any technicalities if they proceed to terminate for failure of probation.”

RESPONSE:

Introduction

There obviously will be a technicality. The employee may rely on St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18) and argue that terminating his contract two weeks after the end of probation is tantamount to extending his probationary period something which is not supported by the authorities.

St. Giles Medical Rehabilitation Centre v Patsanza

In Patsanza the courts argued that the employer had fallen in the error of extending the period of probation and in dismissing the respondent on two weeks’ notice. The court also commented as follows:

“It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three-month period of probation. Clearly, therefore, in these circumstances the court a quo was correct in finding that the respondent had become a permanent employee.”

Conclusion

In my view, the best procedure is for the employer to constitute a hearing and arraign the employee before an impartial official. Only when the employee is guilty of the offence can he be dismissed. This way, the employer avoids having to deal with the technicalities that may arise from cases like Patsanza.

3,147 Views

THE NEED TO EXHAUST DOMESTIC REMEDIES PROVIDED IN A CODE

QUERY:

“We dismissed a manager for stealing. Money was sent to his EcoCash number, but he could not produce receipts to acquit him. The manager did not appeal internally against the decision but has approached the Ministry of Labour already. How would I deal with this situation? Can the matter be heard at the ministry before the said Manager exhausts all internal processes?”

RESPONSE:

Introduction

The quickest response to this question is embedded in section 101(5) of the Labour Act (Chapter 28.01) which precludes such a manager from proceeding to refer a matter to a labour officer before appealing internally. 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 ambit the code of conduct. The manager, in this instance, should appeal internally first and ensure that all channels are exhausted.

Jambwa v GMB

Individuals fall in the trap of prematurely referring disputes that are still within the ambit of domestic remedies. 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.”

Moyo v Gwindingwi N O & Anor

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 before embarking on any external interventions. If a wrong forum is approached that forum will have no option than to dismiss such an appeal or application.

As mentioned above, in the present case, the employee should not have approached a Labour Officer under the Ministry of Labour.

Conclusion

It is advisable in this instance for the employer to attend the first conciliation hearing and highlight to the labour officer that he or she lacks jurisdiction as this matter is supposed to go through an internal appeal process before it is referred to him.  In most cases, any reasonable labour officer will not tolerate such a dispute.

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A common mistake when terminating fixed-term contracts

I recently came across an extract of a letter which was meant to terminate an employee’s contract.  This letter was of interest to me because, in my view, it contains common labour law mistakes that professionals make in the process of terminating contracts of a fixed-term nature.

For purposes of convenience, the letter is attached below:

I have deliberately inserted paragraph numbers to this letter to simplify the process referencing as I will be referring to these paragraphs throughout this article.

It is important to point out that this letter was meant to terminate a fixed-term employment contract that was due to expire on the 31st of December 2020.

AD PAR 1

Paragraph 1 indicates the intention of the employer to terminate the fixed-term contract on notice (see paragraph 4 as well). The fixed-term contract was effectively terminated on the 15th of January 2020 as can been seen from this paragraph.

Looking at this Paragraph in isolation, one can conclude that the intention was to terminate the contract in terms of section 12C of the Act as amended. In my view, if the employer had just stated that it was terminating the contract on notice there wouldn’t have been anything amiss about this termination.

Paragraph 2 of the letter raises important legal questions about whether the employer wanted to terminate the employees’ contract on notice (s12C of the Act) or dismiss the employee (s12B of the Act). The two processes are different, and each has its own legal connotations. I will explain.

Don Nyamande (2) Kingstone Donga v Zuva Petroleum (Private) Limited [i] shows that there are fundamental differences between termination on notice and termination as a result of a “dismissal”. The two methods have different procedures, for instance, a dismissal envisages the use of a code of conduct. A code of conduct is only utilised when an employee has committed some form of an offence[ii]. Termination on notice can be applied in no-fault situations. This distinction is critical in casu and should be kept at the back of one’s mind in the process of analysing paragraph 2 and 3.

AD PAR 2 & 3

Paragraph 2 and 3 of the letter tend to paint a totally different picture of what is apparent in paragraph 1. The two paragraphs indicate that the termination emanated from an allegation that this employee stole diesel from the company.

Paragraph 3 further indicates that the employee did not show any remorse after the alleged offence. It also threatened to hand over the employee to the police in view of the alleged offence.

It is my respective view that the two paragraphs were not proper at law and should not have been part of this letter considering that the employer wanted to terminate on notice. If the employee committed the offence why then was, he not arraigned before a disciplinary hearing? Was he granted an opportunity to be heard before an impartial tribunal before the termination was effected? The letter does not indicate that this was the case and if this is anything to go by then termination of the employee’s contract was irregular.

It is my sincere understanding that if an employee is alleged to have committed an offence, terminating on notice is not the correct procedure. The basic rules of natural justice require that an employee be given an opportunity to be heard if an offence is alleged to have been committed.  Such an opportunity can only be granted within the confines of a code of conduct. Summarily terminating the contract will be irregular in these instances.

The correct procedure would have been to charge the employee, go through the hearing process and allow him to state his side of the story. Only when, on a balance of probabilities, it is confirmed that he stole the diesel could his contract be severed. This process can be done even when the employee is on a fixed-term contract. The whole process only becomes fair when an impartial tribunal hears the matter and issue an appropriate penalty.

CONCLUSION

In conclusion, I am bothered by the fact that the employee in question was alleged to have committed an offence, but no disciplinary action was undertaken. The employer chose to pay the employee notice and the minimum retrenchment package without allowing the employee to respond to the allegations. I submit that termination by notice can only be utilised in no-fault situations where no party is to blame for the breakdown of the employer-employee relations.

In the circumstances and having considered the authorities, I am tempted to conclude that the termination of the said employee’s contract was null and void for want of compliance with the employer’s code of conduct.

[i] Don Nyamande (2) Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[ii] See section 101(3) of the Labour ACT (Chapter 28.01).

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