American Friends Service Committee v Irene Chauke SC 1/2012

“There can be no doubt that the Labour Court fell into error in coming to this conclusion as it is settled law that damages in these circumstances must be properly proved by the party seeking the same”.

Introduction

    In the Contemporary Employment Law in Zimbabwe, First Edition we indicated that the widely accepted test for determining if an employment relationship exists between the parties is the dominant impression test. This test looks at all the facts of the interaction between the parties to determine if indeed there was an employment relationship. Aspects such as the control of the employee by the employer, supervision, and control must be fully considered. The test also looks at whether the employee was part of an organization. In such a test, therefore, there is no single decisive factor that the court considers. The totality of the evidence presented by the parties is fully considered.

    Facts

    American Friends Service Committee v Irene Chauke SC 1/2012 deals with two important aspects of Zimbabwe’s employment law. First, it outlines the law that applies in a determination as to whether an employment relationship exists between the parties. Secondly, it also assesses and makes a decisive conclusion on the importance of evidence when it comes to the quantification of damages in lieu of reinstatement. These issues are discussed here.

      The issue presented before the Supreme Court centred on whether or not a valid employer-employee relationship existed between the parties. The appellant had initially hired the respondent on fixed-term contracts up until September 2007. However, it was undisputed that the respondent continued to provide services to the appellant beyond this time frame. Her employment was extended on multiple occasions until its termination in June 2009. At the point of termination, she was earning a monthly salary of US$1,500 and was required to work five days per week and eight hours per day. Additionally, her role as office coordinator and programmer required her to report her activities to the regional office located in South Africa. The case at hand thus required a thorough examination of the employment relationship between the parties involved and to ascertain whether an employer-employee relationship existed between the parties

      The court’s findings and the law

      The court found that on the facts, the respondent was an employee of the appellant. The fact that the respondent was earning a monthly salary of US$1,500 and was required to work five days per week and eight hours per day all pointed to the existence of an employment relationship.

      In addition to the above, the court also found that the arbitrator based his decision regarding the quantification of damages solely on an unsupported statement from the respondent. The Labour Court had accepted this claim without opposition from the appellant. The Supreme Court emphasized that damages in such cases must be properly substantiated by the party making the damages claim.

      Conclusion of the dispute

      The court’s view was that there was a need for the quantum of damages to be properly proved. The matter was remitted to the Labour Court for determination of the damages after evidence had been adduced.

      Own comment

        This case highlights the dominant impression test of determining whether an employment relationship exists between the parties. The fact that the Respondent was employed on a fixed-term basis. That he was paid a salary of USD 1500 and reported to superiors in South Africa all pointed to the existence of an employment relationship contemplated by the Labour Act. Every court faced with a dispute regarding the existence of an employment relationship is compelled to look at the totality of the evidence presented by the parties. This resonates well with what the Supreme Court indicated in Masango & Others v Kenneth & Another SC 41–2015 where the court ruled that:

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

        Equally so, the acceptance of damages by a court in the absence of evidence is not ideal. Several court judgements have emphasized the importance of leading evidence in order to support quantification proceedings. In Heywood Investments (Private) Limited T/A GDC Hauliers v Pharaoh Zakeyo SC32/2013 the Supreme Court ruled that:

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

        We submit therefore that American Friends Service Committee v Irene Chauke SC 1/2012 is an important case for those who wish to contest the presence or the absence of an employment relationship. It is also a useful case for those seeking to thwart damages that were awarded in the absence of evidence.

        316 Views

        Ajasi Wala v Freda Rebecca Mine SC 56 – 16

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

        Introduction        

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

        The Facts

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

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

        The Law

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

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

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

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

        Conclusion

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

        Own Comment

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

        176 Views

        ZB Bank v Maria Masunda SC 48 – 16

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

        Introduction

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

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

        The Facts

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

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

        The Law

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

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

        The court went on to say:

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

        “At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. [2] It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion”

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

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

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

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

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

        Conclusion

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

        Own Comment

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

        191 Views

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

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

        Introduction

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

        Facts

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

        The law

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

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

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

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

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

        Conclusion

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

        Own Comment

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

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


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

        436 Views

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

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

        Introduction

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

        The Facts

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

        The Law

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

        Having defined resignation it went on to state that:

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

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

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

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

        Conclusion

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

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

        Own Comment

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

        385 Views

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

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

        Introduction

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

        The Facts

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

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

        The Law

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

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

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

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

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

        Conclusion

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

        Own Comment

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

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

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

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

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

        509 Views

        ZIMPLATS v Ronald Godide (SC 2 – 2016)

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

        Introduction

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

        Facts

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

        Law

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

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

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

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

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

        Conclusion

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

        Own Comment

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

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

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

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

        647 Views

        CIMAS v Tapiwa Nyandoro (SC 6 – 2016)

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

        Introduction

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

        The Facts

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

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

        The Law

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

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

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

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

        The conduct of the employee

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

        Conclusion

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

        Own Comment

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


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

        375 Views

        Browne v Tanganda Tea Company (SC 22-16)

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

        Introduction

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

        Facts

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

        The Law

        Constitution of the Disciplinary Committee

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

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

        Prescription of the charges

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

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

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

        Sexual Misconduct

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

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

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

        Conclusion

        The appeal was dismissed.

        Own Comment

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

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

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