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Vicarious Liability in Zimbabwe and South Africa: A Review of Some Court Cases

Introduction

Vicarious liability is a legal concept that holds an employer or principal liable for the wrongful acts committed by its employees or agents in the course of their employment. This doctrine has been applied in various court cases in Zimbabwe and South Africa, with differing outcomes. This article provides an overview of the legal framework and court decisions on vicarious liability in these countries.

Legal Framework

In Zimbabwe, the law of vicarious liability is based on the common law, which imposes liability on an employer for the wrongful acts of its employees committed within the scope of their employment. The test for determining whether an employee’s conduct falls within the scope of employment is whether it is sufficiently connected to the employee’s duties or whether it is a “frolic of his own.”

In South Africa, the law of vicarious liability is also based on the common law. However, the Constitutional Court has held that vicarious liability can also arise from statutory duties, such as those imposed by the Employment Equity Act and the Occupational Health and Safety Act.

Court Cases

In Zimbabwe, the case of S v Chidziva established that an employer can be held liable for the sexual harassment of an employee by a fellow employee if the employer knew or ought to have known about the harassment and failed to take reasonable steps to prevent it. In this case, the employer was held liable for damages suffered by the victim.

In another case, Muzenda v Attorney-General, the Supreme Court held that an employer can be held liable for the negligent driving of its employee, even if the employee was not acting within the scope of his employment at the time of the accident. The court held that the employer had a duty to ensure that its employees were competent and qualified to operate its vehicles.

In South Africa, the case of K v Minister of Safety and Security established that a police officer who committed rape while on duty could be held liable for damages, and the Minister of Safety and Security could also be held vicariously liable for the officer’s actions. The court held that the officer’s conduct was sufficiently connected to his duties as a police officer, and that the Minister had failed to take reasonable steps to prevent the officer from committing the offence.

In another case, Ngubane v South African Broadcasting Corporation, the Constitutional Court held that an employer can be held vicariously liable for the discriminatory conduct of its employees, even if the employer did not expressly authorise or condone such conduct. The court held that the employer had a duty to take positive measures to prevent discrimination in the workplace.

Conclusion

Vicarious liability is an important legal concept that holds employers accountable for the actions of their employees. In Zimbabwe and South Africa, courts have applied this doctrine in various cases involving wrongful acts committed by employees. The outcomes of these cases have varied, depending on the specific facts and circumstances. However, they provide useful guidance on the legal framework and principles governing vicarious liability in these countries. Employers should be aware of their potential liability for the actions of their employees and take reasonable steps to prevent wrongful conduct in the workplace.

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Transferring an employee from one location to the other

Transferring an employee from one location to another can be a complicated process, especially in Zimbabwe. There are many factors to consider, including the legal requirements and court cases that have set precedents for such transfers.

The first step in transferring an employee is to ensure that the transfer is legal. This means that the employer must have a valid reason for the transfer, such as a business need or a change in the employee’s job duties. The employee must also be given notice of the transfer and be given the opportunity to object if they feel that the transfer is not in their best interests.

If the employee does object to the transfer, they may have grounds to take legal action. In Zimbabwe, there have been several court cases that have dealt with employee transfers, and these cases have set precedents for how such transfers should be handled.

One such case is the case of Moyo v National Railways of Zimbabwe (2001), where an employee was transferred from one location to another without their consent. The court ruled that the transfer was illegal because the employer had not followed the proper procedures for transferring an employee. The court also ordered the employer to pay damages to the employee for the inconvenience and stress caused by the transfer.

Another important case is the case of Ncube v ZESA Holdings (2010), where an employee was transferred from one location to another without adequate notice. The court ruled that the transfer was illegal because the employer had not given the employee enough notice of the transfer. The court also ordered the employer to pay damages to the employee for the inconvenience and stress caused by the transfer.

These cases demonstrate the importance of following proper procedures when transferring an employee from one location to another. Employers must ensure that they have a valid reason for the transfer, that they give adequate notice to the employee, and that they follow all legal requirements for such transfers.

In addition to legal requirements, there are also practical considerations when transferring an employee. Employers must ensure that the employee is able to perform their job duties in the new location, that they have adequate housing and transportation, and that they are able to adjust to the new environment.

Overall, transferring an employee from one location to another can be a complex process, but by following proper procedures and taking practical considerations into account, employers can ensure a smooth and successful transfer. It is important to be aware of the legal requirements and court cases that have set precedents for such transfers in Zimbabwe, in order to avoid any legal or financial consequences.

599 Views

Post-termination fiduciary duties of ex-employees and restraint of trade agreements

Introduction

Whilst implementing the employer-employee contractual relationship the employee may inevitably come into contact with the employer’s secrets of the trade. It may also become inevitable that the employee may eventually end up working for a former employer’s competition. The use of knowledge and experience gained whilst working under one employer may be useful whilst working for another employer. This inevitable interaction between what one may gain in knowledge and experience whilst employed by one employer may be a source of conflict when the employee leaves employment. Employers have seen a desperate need to come up with restraint of trade agreements that are aimed at precluding employees from working for their competition or becoming competition themselves.

This discussion focuses on the fiduciary duties that accrue to employees when they leave employment. In this discussion, it shall be noted that the fiduciary duty accruing to employees includes loyalty to the company in so far as not stealing its trade secrets. It also entails not violating restraints of trade validly entered between a company and its former employee. We discuss the law behind the application of restraint of trade agreements. We outline the important court decisions that have looked into this subject. The legal principles used by these courts will also be outlined. At the end of this discussion, it shall be concluded that the Constitution cannot be ignored when the subject under discussion is under scrutiny.

Freedom of trade in terms of the Constitution of Zimbabwe, 2013

The subject matter will be very limited and even incomplete without knowledge of the constitutional framework governing the law of profession, commerce and profession. The Constitution of Zimbabwe provides:

“Every person has the right to choose and carry on any profession, trade or occupation, but the practice of a profession, trade or occupation may be regulated by law”.[1]

The provision empowers every person to choose what they want to pursue in terms of their trade and occupation. Arguably, this provision puts into question the notion of restraint of trade agreements. A restraint of trade is a clause in a contract in which the employee undertakes that he or she will not act in competition with an employer upon separation. Its application may thus go against the constitutional principles stated above.

As a result of the need to balance these interests, courts have had to come up with rules applicable to the restraint of trade agreements. These rules as devised by the courts provide the framework within which restraint of trade must be viewed. The rules discussed hereunder include the fact that a restraint of trade is only enforced where there is a breach of the agreement, that it must be reasonable and that there must be protectable interests.

Breach of a restraint of trade

A party that seeks to enforce a restraint of trade must first prove that there has been a breach of the agreement.[2] The evidence may be in the form of the former employee providing services to clients belonging to his or her former employer. The breach of the restraint of trade will compel the employer to enforce it. Enforcement is usually in the form of an interdict precluding the employee from continually acting contrary to the former employer’s protectable interests.

Reasonableness of a restraint of trade

The generally acceptable principle applying to restraint of trade agreements is that the agreement must be reasonable for it to be enforceable.[3] A former employee found violating a restraint of trade agreement that he or she had with the former employer may argue that the restraint of trade cannot be enforced because it is unreasonable. In Forsure (Pty) Ltd v Byron Robert Puckle and Another the court found that a restraint of trade that covered the whole Republic of South Africa was unreasonable and thus could not be enforced.

The locus classicus of the need to have a reasonable restraint of trade contract is the South African case of Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984(4) SA 874 (A). The court in this case correctly held that a restraint of trade that is contrary to public policy is unenforceable because it will be unreasonable.[4] The court also held that each restraint of trade contract, before a court, must be analyzed individually to ascertain if it’s violating public policy and thus unreasonable. Regarding the reasonableness of a restraint of trade, the court in Sibex Engineering Services (Pty) Ltd v Van Wyk and Another 1991 (2) SA 482 (T) had this to say:

“A contractual restraint curtailing the freedom of a former employee to do the work for which he is qualified will be held to be unreasonable, contrary to the public interest and therefore unenforceable on grounds of public policy if the ex-employee (the covenantor) proves that at the time enforcement is sought, the restraint is directed solely to the restriction of fair competition with the ex-employer (the covenantee); and that the restraint is not at that time reasonably necessary for the legitimate protection of the covenantee’s protectable proprietary interests, being his goodwill in the form of trade connection, and his trade secrets. If it appears that such a protectable interest then exists and that the restraint is in terms wider than is then reasonably necessary for the protection thereof, the Court may enforce any part of the restraint that nevertheless appears to remain reasonably necessary for that purpose.”

Interests worth protection.

In addition to the principles discussed thus far, a restraint of trade can only be enforceable if there is an interest worth protecting.[5] This may include trade secrets like customer lists.[6] In Forsure (Pty) Ltd v Byron Robert Puckle and Another, the court made a factual finding that there was no interest worth protecting considering that, the employee had only worked for the employer for a period of less than a year.[7] There was no evidence that the former employee was taking employees away from his former employer.

Balancing the interest of the parties

A court faced with a restraint of trade litigation is duty-bound to consider all the circumstances of the case before resolving the dispute. The process entails weighing the interests of the employer against those of the employee. Inevitably the constitutional rights indicated above may also be weighed. After weighing the interests of all the parties concerned, the court in Forsure supra observed:

“In addition, there is no justifiable reason to enforce a national restraint when balanced against offending the right of Mr Puckle to work in a profession in which he is solely skilled and competent, albeit, same was acquired or enhanced while in the employ of Forsure.”

The fact that the employee was solely skilled in the only profession that the employer sought to restrain him from practising was one of the factors that discouraged the court from enforcing the restraint of trade in this case. The court was also persuaded to not enforce the restraint of trade because of the failing economy[8] and the reduced job market. It sought to protect the employee from these difficulties once the restraint of trade is enforced.

Duty not to steal employers’ secrets on separation.

The court in Big Catch Fishing Tackle Proprietary Limited and Others v Kemp and Others[9] decisively concluded that a director or an employee is precluded from utilising the former company’s trade secrets or violating any interest of the company that is worthy of protection.[10] It was also held that it is only commercially viable and confidential information that should not be utilised by a former director or an employee.[11] It was further held that a director or an employee only interferes with his or her fiduciary duty after resignation only when he or she sabotages the company’s business or makes use of information that is confidential for the benefit of his company, himself or a rival.

The director or employee must not also interfere with the existing contracts of the company he or she was formerly engaged with. The court also argued that a person must be allowed to be productive and be allowed to engage in trade as a function of their constitutional rights. Post resignations restraints are generally not supported by the courts.[12] It further argued that a resigned director must be able to make use of the experience, knowledge and skill that he or she acquired whilst still in the employ of the company that he or she left. The employee and director who have resigned from the company, whilst they can make use of the knowledge they acquired whilst still working for the company may not steal the trade secrets belonging to the company, they resigned from.

Conclusion

From the foregoing discussion, it can be noted in summation that a restraint of trade agreement can be enforced provided it meets certain conditions. These conditions include reasonableness. It also includes the fact that the restraint of trade must apply to interests that are worth protecting. Employees are under a legal obligation not to steal an employer’s trade secrets such as customer lists or other interests worth protecting.

In enforcing restraint of trade agreements, the court cannot ignore the constitutional protection afforded the right of an individual to participate in a trade or profession of their choice. The courts have legal obligations to ensure that persons are productive. One cannot ignore the fact that we live in a volatile world. A world in which the economies are battling pandemics and diseases as well as wars. Several job cuts have been witnessed of late. We are therefore likely to see several restraints of trade agreements set aside in the interest of ensuring that persons are productive in full support of the Zimbabwean Constitution.


[1]           Section 64 of the Constitution of Zimbabwe, 2013.

[2]           Forsure (Pty) Ltd v Byron Robert Puckle and Another (South African case number J727/2022) on paragraph 17.

[3]           See Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984(4) SA 874 (A).

[4]           See Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984(4) SA 874 (A) in which the court held that: “Acceptance of public policy as the criterion means that, when a party alleges that he is not bound by a restrictive condition to which he had agreed, he bears the onus of proving that the enforcement of the condition would be contrary to public policy. The Court would have to have regard to the circumstances obtaining at the time when it is asked to enforce the restriction. In addition, the Court would not be limited to a finding in regard to the agreement as a whole but would be entitled to declare the agreement partially enforceable or unenforceable.”

[5]           In Sibex Engineering Services (Pty) Ltd v Van Wyk and Another 1991 (2) SA 482 (T) it was held that: “The proprietary interests that could be protected by such a restraint were essentially of two kinds. The first kind consisted of the relationships with customers, potential customers, suppliers and others that go to make up what is compendiously referred to as the “trade connection” of the business, being an important aspect of its incorporeal property known as goodwill. The second kind consisted of all confidential matter which is useful for the carrying on of the business and which could therefore be used by a competitor, if disclosed to him, to gain a relative competitive advantage. Such confidential material is sometimes compendiously referred to as “trade secrets”.”

[6]           Big Catch Fishing Tackle Proprietary Limited and Others v Kemp and Others.

[7]           In Forsure (Pty) Ltd v Byron Robert Puckle and Another on paragraph 37 and 38 the court made the following factual findings: “Regard must also be had to the fact that Mr Puckle was less than a year in the employ of Forsure and the confidentiality it seeks to protect is not absolute or permanently protectable. [38] As well, there is no evidence to show that Mr Puckle would lure Forsure’s employees to joint Ubersure; which is, in any event, unlikely given that contention by Forsure that all its employees are bound by respective restraint of trade agreements.”

[8]           In Forsure (Pty) Ltd v Byron Robert Puckle and Another on paragraph 39 the court remarked that: “He would have to contend with being economically inactive in a constrained economic climate and labour market that is hemorrhaging jobs on the terms that are overtly far-reaching given the diminished threat to the proprietary interest sought to be protected.

[9]              (17281/18) [2019] ZAWCHC 20 (5 March 2019).

[10]            Big Catch Fishing Tackle Proprietary Limited and Others v Kemp and Others on paragraph 36.

[11]            Big Catch Fishing Case on paragraph 37.

[12]            Big Catch Fishing case on par 40.

659 Views

Vundla and Another v Innscor and Another SC 14 – 22[1]

It is clear from these pleadings that the labour officer failed to conduct the conciliation in the manner stipulated in the Isoquant judgment, supra. A properly conducted conciliation does not require a statement of claim, response, reply and heads of argument. The labour officer does not make a determination in making his draft ruling. These features pertain to a hearing. Rather, he or she utilizes both the oral and written information and documents that he collects and collates from the parties to make a draft ruling. A draft ruling that emanates from improper procedural steps and substantive requirements is a nullity. It is incapable of invoking the confirmation jurisdiction of the Labour Court.

Introduction

This case was a chamber application for condonation and an extension of time within which to file an appeal. This case deals with the important elements that an applicant needs to prove for such an application to be granted. The remarks as to the merits of this matter are also important in revealing the law of conciliation that was buttressed in Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 – 2020. The far-reaching consequences of the interpretation of the Isoquant Case by the Supreme Court cannot be ignored.

The Facts

Two applicants were involved. The first applicant was a procurement manager whereas the second applicant was a general manager.

The first applicant had a mutual termination agreement with the employer. He was paid his terminal benefits after signing a mutual separation agreement and receiving such payment. He regarded this as a retrenchment.

The second applicant was retrenched with the approval of the retrenchment board. He signed the retrenchment agreement. In both cases, the two employees absolved their employer from any further claims arising from their termination.

They challenged the termination processes, and the labour officer issued a draft ruling dismissing those claims. The Labour Court confirmed the Labour Officer’s ruling. This was in November 2016.

Two appeals to the Supreme Court failed for various reasons.

It was after the Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 – 2020 that the appellants lodged a fresh appeal with the Supreme Court which appeal founded the current application.The Law

The initial finding of the court was that the Supreme Court’s interpretation in Drum City (Private) Limited v Brenda Garudzo SC 57-18 which interpretation excluded the Labour Court’s jurisdiction when a draft ruling is entered against an employee was wrong and had been jettisoned in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CCZ-20. It was after this Constitutional Court ruling that the applicants lodged the current appeal.

In an application for condonation and extension of time within which to file an appeal, the court looks at five factors in deciding if the application must be granted. These are the extent of the delay, the reasonableness of the explanation for the delay, prospects of success, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court and avoidance of unnecessary delay in the administration of justice.

  • The delay

It took the applicants 3 years and 8 months to partake in the appeal. This period was seen by the court to be inordinate. The court noted that part of the reason why the applicants delayed lodging the current appeal was that they had accepted the court’s view that confirmation proceedings cannot be made against a draft ruling that is made against an employee. See Drum City (Private) Limited v Brenda Garudzo SC 57-18. As already noted, this position has since been set aside by the Constitutional Court. The court could not accept this reason for the delay because the current application was not made as soon as the Isoquant case was decided. As a result, the court concluded that there was no reasonable explanation for the delay by the applicants.

  • Prospects of Success

The court’s finding was that conciliation of the dispute was not properly held. It relied on the remarks inthe Isoquant case. In that case, the constitutional court concluded that conciliation has a specific process that has to be followed by a Labour Officer before a draft ruling is produced. The process includes the introduction of the dispute, storytelling, dispute analysis and problem-solving.  If these stages are not followed, the outcome is nullity. As a result of these findings, the conclusion was that the prospects of success for the applicants were slim since the draft ruling was null and void. The court remarked:

“It is clear from these pleadings that the labour officer failed to conduct the conciliation in the manner stipulated in the Isoquant judgment, supra. A properly conducted conciliation does not require a statement of claim, response, reply and heads of argument. The labour officer does not make a determination in making his draft ruling. These features pertain to a hearing. Rather, he or she utilizes both the oral and written information and documents that he collects and collates from the parties to make a draft ruling. A draft ruling that emanates from improper procedural steps and substantive requirements is a nullity. It is incapable of invoking the confirmation jurisdiction of the Labour Court.”

  • The Merits

The court noted that if an employee accepts a retrenchment package that acts alone waives the right of the same employee to challenge the proceedings. In this respect the court ruled:

A voluntary acceptance of a terminal package is clearly knowingly made. It is also inconsistent with the continuation of an employment relationship. It constitutes conduct which reasonably leads the employer to believe that the employment relationship is over. Thus, whether the first applicant was terminated from employment by agreement or whether like the second applicant he was retrenched, their deliberate acceptance of their respective terminal packages was inconsistent with the continuation of the employment contract.

Conclusion

The court concluded that the application failed to meet all three major requirements for condonation and extension of time within which to appeal.

Own Comment

The court’s findings were clear-cut and consistent with the law that applies when one seeks to request the court to extend the time within which to file an appeal.


[1]           Vundla and Another v Innscor Africa Bread Company Zimbabwe (Private) Limited and Another SC 14 – 2022

539 Views

CFI Holdings v Peggy Rambanepasi and Others SC 17 – 22

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

The facts

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

The law

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

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

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

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

Conclusion

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

Own Comment

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

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


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

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

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

417 Views

ZESA Holdings (Private) Limited v Obson Matunja SC 73 – 22

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

The facts

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

The law

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

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

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

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

Conclusion

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

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

Own Comment

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

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


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

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

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

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

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

624 Views

Can I be dismissed based on my social media posts.

As social media continues to play an increasingly significant role in our daily lives, it is natural to wonder about the potential consequences of our online activity. One question that has arisen is whether an individual can be dismissed from their job for what they post on social media. This is a particularly pertinent issue in countries such as South Africa and Zimbabwe, where social media use is widespread but employment laws may not be as clear-cut as in other regions.

The short answer is that it is possible to be dismissed for social media activity, but the circumstances will vary depending on the specific situation. In general, employers have the right to take action if an employee’s online activity has a negative impact on the company or violates company policies. However, there are also legal protections in place to prevent employers from unfairly punishing employees for their personal beliefs or activities outside of work.

In South Africa, the Labour Relations Act provides some guidance on this issue. Section 8 of the Act states that employees have the right to freedom of expression, which includes the right to express their opinions on social media. However, this right is not absolute and can be limited if it infringes on the rights of others or causes harm to the employer’s business. For example, if an employee posts confidential company information or makes derogatory comments about colleagues, this could be grounds for disciplinary action.

Similarly, in Zimbabwe, the Labour Act provides some protection for employees’ rights to freedom of expression. However, the Act also states that employees must not engage in conduct that is “prejudicial to the interests of the employer.” This could include posting negative comments about the company, its products or services, or its employees on social media.

It is worth noting that in both South Africa and Zimbabwe, there have been cases where employees have been dismissed for their social media activity. For example, in South Africa, a bank employee was fired after posting racist comments on Facebook about her colleagues. In Zimbabwe, a teacher was dismissed after posting comments on Facebook that were critical of the government.

However, there have also been cases where employees have successfully challenged their dismissals on the grounds of unfair treatment. For example, in South Africa, a marketing manager was reinstated after being fired for posting a tweet critical of her employer. The Labour Court ruled that the dismissal was unfair because the employer had not followed proper disciplinary procedures.

So, what can employees do to protect themselves from being dismissed for their social media activity? The most important thing is to be aware of company policies and to ensure that any online activity is in line with these policies. Employees should also be mindful of the potential consequences of their online activity and avoid posting anything that could be seen as offensive or harmful to the company or its employees.

Employers, on the other hand, should have clear policies in place regarding social media use and should ensure that employees are aware of these policies. Employers should also follow proper disciplinary procedures if an employee’s online activity is deemed to be in violation of company policies.

In conclusion, while it is possible to be dismissed for social media activity in South Africa and Zimbabwe, the circumstances will depend on the specific situation. Employees should be aware of company policies and the potential consequences of their online activity, while employers should have clear policies in place and follow proper disciplinary procedures. Ultimately, the key is to strike a balance between employees’ rights to freedom of expression and employers’ rights to protect their business interests.

297 Views

Benham G. Mombeshora v IAC (Zimbabwe) (SC 72/17

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

Introduction

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

The Facts

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

The Law

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

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

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

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

Conclusion

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

Own Comment

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


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

[2]               Statutory Instrument 15 of 2006.

414 Views

Thokozile Zinonda v CAFCA Limited SC (64 -17)

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

Introduction

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

The Facts

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

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

The law

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

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

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

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

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

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

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

Conclusion

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

Own Comment

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

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

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

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

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

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

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

It also goes on to provide that equal remuneration means:

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

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

357 Views

TelOne (Pvt) Ltd v Chigaazira (SC70/17)

“Applied to the circumstances of this case, it is evident that even if this court were to find that the respondent had a legitimate expectation of his contract being renewed, his claim would fall on the basis that the second requirement was not met.”

Introduction

Disputes involving the doctrine of legitimate expectation of contract renewal are prevalent in our jurisdiction. The question that arose in TelOne (Pvt) Ltd v Chigaazira SC 70 – 17 is whether the mere placement of an advertisement after an employee’s contract has expired results in unfair dismissal in terms of section 12B of the Labour Act (Chap 28.01).

Facts

The appellant company gave the respondent employee notice of both the expiry and the non-renewal of his 5-year fixed-term contract.  The appellant went on to advertise for the post of Commercial Director, a title which was previously held by the respondent. The employer did not employ anyone despite advertising the position. The Labour Court decided that there was a legitimate expectation of renewal of the contract a position the appellant did not agree with thus resulting in the supreme court dispute under discussion.

The law

The court looked at the structure of section 12 (B) which reads:

“(3) An employee is deemed to have been unfairly dismissed—

(a) …

(b) if, on termination of an employment contract of fixed duration, the employee—

(i) had a legitimate expectation of being re-engaged, and

(ii) another person was engaged instead of the employee.” (Own Emphasis).

In the court’s assessment, the two requirements in sections 12(B)(3)(B) (i) and (ii) should be present for an employee to be deemed unfairly dismissed. It ruled:

However, s 12(b)(3)(b) of the Labour Act requires that for an employee to be deemed to have been unfairly dismissed in terms of that provision, he must not only establish that he had a legitimate expectation of being re-engaged, but also that another person was engaged in his stead.

Conclusion

The court concluded therefore that there was no unfair dismissal.

Own Comment

The supreme court’s remarks and conclusion are important. Indeed the use of the word “and” between sections 12(B)(3)(B)(i) and (ii) shows that both sub-sections must be interpreted jointly and not separately. It was going to be a different case if the legislature had used a word such as “or” which would give a claimant an option to prove legitimate expectation alone without worrying about whether someone was employed in their stead.

388 Views
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