Category: 2021 Case Law Review

“The clear position of the law appears to me to be that upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.”

Category: Reinstatement as a Consequence of a Procedural Irregularity

Introduction

In this summary, we highlight an important decision in ZUPCO v Beaular Mashinge. It pertains to the consequence of a procedural irregularity in disciplinary hearings. The ratio, in this case, can be summarised to the effect that procedural shortcomings in a disciplinary hearing can warrant reinstatement of the affected employee. This is opposed to the argument that such a matter should be remitted back to the disciplinary tribunal for a resolution of the procedural defect.

Facts

The relevant facts are that a disciplinary hearing led to a deadlock and contrary to the provisions contained in the code of conduct, it was referred to a Division Operations Manager for finalisation. Oblivious to this flaw, the Division Operations Manager dismissed the employee. An application for review was lodged with the Labour Court which court accepted that there was a fatal flaw in the process that could only be remedied through reinstatement of the employee. Aggrieved by this decision, the employer appealed to the Supreme Court arguing that the appropriate remedy was supposed to be a remittal of the matter to the disciplinary tribunal for a determination. The Supreme Court did not agree.

The Law

The appellant employer argued that the Labour Court erred in ordering reinstatement of the employee without considering the merits of the matter. The court accepted that the appellant was “partially correct” in arguing that the appropriate remedy would have been to remit the back to the disciplinary tribunal. It however proceeded to point out that:

“…upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms”.

What this statement means is that once a procedure is fatally defective, the employment contract is reinstated but this does not do away with the employers right to discipline the employee for the same offence. As the court pointed out, this restoration has nothing to do with the merits of the matter.

The court remarked that if the employee had been on a suspension without pay reinstatement was not going to be viable as the employee would have to revert to that status. As a result of the above, the court dismissed the appeal.

Conclusion

The important lesson, in this case, is that an employee can be reinstated once there is a procedural defect that vitiates the disciplinary proceedings. An exception would be where the employee was on a suspension without pay which status the employee will revert to in the event of a procedural defect.

“If there was acceptance of the variation, as there was, there was no claim to be

prescribed. It follows that by his conduct, the appellant impliedly consented to the variation of his contract. In such circumstances, he could not claim any benefits flowing out of the contract that had been varied.”

Category: Implied Consent to the Variation of a Contract

Introduction

It is trite in our law that an employment contract cannot be unilaterally varied without the consent of the employee.[1] It is also deep routed in the labour laws of this country that an employment contract is not cast in stone.[2] Changes in the economy, the industry among other factors may warrant changes to the contract.[3] It is accepted that consent can be explicit, that is given in writing. It can also be implied.  Moses Mawire v Rio Zim Limited (Private) Limited deals with implied consent and demonstrates the far-reaching consequences of such consent.

Facts

The appellant was employed in 2006 at a time when the Zimbabwean dollar was still functional. His contract provided for a sundry of allowances. In 2009 the Zimbabwean dollar became moribund forcing companies, the respondent company included, to adopt the US dollar as a means of remunerating employees. A letter was written to the appellant employee advising him of the new USD salary. Allowances were excluded. This was on 9 February 2009. Despite the appellants contract stipulating that he was entitled to a motor vehicle, the employer continued to supply him with fuel and maintained his personal vehicle. In 2014, close to 5 years after the changes, the employee lodged a complaint with a labour officer. Conciliation failed and an arbitrator ruled that the employee was entitled to the back dated allowances that he was claiming. Aggrieved, the employer appealed to the Labour Court. It was the Labour Courts finding that the claims had prescribed, and that the employee had accepted the variation of his contract. The appeal was therefore allowed. It was this result that founded the Supreme Court appeal.

The Law

Prescription of the dispute

The appellants argument was that there was no prescription of the dispute since it was continuing as the employer not paying the contractual allowances every month. It was, however, the Supreme Court’s finding that the alleged non-payment of allowances every month constituted independent infractions which prescribed every two years. The appellants plea to have a judgement in favour of non-payments for the past two years, 24 months of the alleged non-payments, could not be sustained by the Supreme Court since this was not an issue in the court aquo. In this respect the Supreme Court argued:

“It is trite that a litigant cannot argue on appeal a case different to that presented in the proceedings a quo.”

Variation of the Contract

It was the courts finding that a memorandum had altered the appellants contract and for five years he received his salary without any complaints. It found that there was implied consent to the terms of the contract. The supreme court utilised the authority in Smith v Hughes where it was stated that:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”

Conclusion

Having found that the appellant had accepted a new salary without the allowances, that the appellant had accepted the variation to his contract, the appeal was dismissed.

[1]           Agricultural Bank of Zimbabwe Limited t/a Agribank v (1) Celemio Machingaifa (2)

            Chenjerai Mutambisi SC 61/07

[2]           Chirasasa v Nhamo N.O. & Anor 2003(2) ZLR 206(S)

[3]           Chirasasa v Nhamo N.O. & Anor 2003(2) ZLR 206(S)

This section constitutes a quick overview of various cases that were decided in 2020 and 2021. Unlike other cases summaries, we have on this blog, this section is updated constantly as the cases are decided. The summaries are noticeably short. Readers are encouraged to peruse through the full judgements to fully appreciate the circumstances that led to those decisions.

Stuttafords Removals (Private) Limited v Nyamazunzu (SC 40-20): This was a case regarding condonation for late noting of an appeal. The court argued that all requirements for the granting of such condonation must be considered. These include the degree of non-compliance, explanation proffered, prospects of success on appeal and the convenience of the court among a host of other requirements. The case makes it clear that condonation is at the discretion of the court and the more alluring the reason put forward the more the court is likely to grant the condonation.

National Foods Limited v Tendai Bonde (SC 60-20): This case deals with internal pay equity. It argues that an employer can come up with an employee retention scheme at its discretion. An individual who does not fit into that scheme cannot argue that they have been discriminated against without proof.

Ncube v Fidelity Printers and Refineries (Private) Limited (SC 62-20): This was an application for leave to appeal to the Supreme Court. The court dismissed the application because the applicant had no prospects of success on the main appeal.

Samuel Mkozho v Standard Chartered Bank Zimbabwe Limited (SC 73-20): Among other important lessons, the case emphasises that grounds of appeal must be outlined in a concise manner failure of which the grounds of appeal will be fatally defective. It also argues that using a standard of proof higher than the balance of probabilities is not acceptable when dealing with civil matters.

Mazarire v The Retrenchment Board & Anor (SC 105-20):  This case is authority to the fact that if a court takes into consideration facts that are outside what it is called for to decide by the parties, the resultant judgement will be fatally flawed. The same goes for a court that formulates its issues for determination. As in the first instance, a higher court can impugn the decision.

Tendai Bonde vs National Foods & Others (SC 11-21): In this case, the Supreme Court dismissed an application for leave to appeal to it on the basis that no question of law was raised on the grounds of appeal. The grounds of appeal should show that the Labour Court erred at a point of law and a mere repetition of facts would not amount to a question of law.

Honest Chipangura and Others v Kwekwe City Council and Anor (SC 27-21): In this case, employees were moved from Kwekwe Breweries to Kwekwe City Council. Following this movement, the employees were offered jobs different from what they held with Kwekwe Breweries. They argued that they had been transferred on less favour terms in contravention of section 16 of the Labour Act. Kwekwe City Council argued that there was no transfer of undertaking since it owned the Kwekwe Breweries. It was held that there was no transfer of undertaking as contemplated by the Labour Act and that the employees signed new contracts with the city council.

Glademan Mbira v Civil Service Commission (SC 32-21): Illustrates the dangers of not having a well-organised hearing. The court frowned upon conducting a disciplinary hearing in such an informal manner that evidence is left untested.

Martin Jongwe v National Foods Limited and Anor (SC 33-21): The court ordered costs at attorney-client scale against the appellant for filing a fatally defective appeal. The court argued that the failure to cite the correct date of the judgment appealed against in a notice of appeal contravenes the peremptory requirements of r 37 (1) (a) of the Rules and invalidates such a notice.

Tongai Machona v Old Mutual Limited (SC 34-21): Argues that not all procedural irregularities warrant the vitiation of proceedings. The court found that the failure to hold a pre-suspension meeting did not constitute a violation of the code.

Zimbabwe Broadcasting Corporation (Pvt) Ltd v Irvine Mhlanga (SC 58-21): Argues that where a party is alleged to have waived their right to an arbitral award, the party relying on such waiver must adduce clear proof that the other party indeed intended to waive his rights. The intention must be clear and must not be left to speculation.

Living Waters Theological Seminary v Reverend Ngoni Chikwanha (SC 59-21): This case argues that Labour Officers do not have the appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees. When a disciplinary committee or appeals committee determines a matter, it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against the Labour Court.

Patrick Manjovha v Delta Beverages (Private) Limited (SC 64-21): Reiterates the position that, an appeal should be against an order of the court and not against the reasons given by the court. The days within which one should note an appeal are calculated from the day the order is given and not when the reasons are produced by the court (see also Martin Jongwe v National Foods Limited and Anor SC 33-21). The appellant took 3 years to contest his dismissal and had his case dismissed for failure to comply with the prescription requirements.

Last Updated: 18 July 2021

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