Category: 2019 Case Law Review

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

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

INTRODUCTION

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

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

FACTS

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

THE COURTS REASONING

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

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

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

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

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

Failure to adhere to an instruction lawfully issued

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

Own Comment

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

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

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

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

[3]           Section 101(5) of the Labour Act reads: “Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

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

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

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

2,121 Views

TOBACCO PROCESSING ZIMBABWE v MUTASA AND OTHER (LC/H/242/2019)

“… then the test as laid down in Chibanda v Hewlett 1991 (2) ZLR 211
(HC) was met. In that case, the court held as follows;

“The learned author, Cooper, defines tacit relocation at page 319 opcit, as follows;  ‘A tacit relocation is an implied agreement to re-let and is concluded by the lessor permitting the lessee to remain in occupation after the termination of the lease and accepting rent from the lessee for the use and enjoyment of the property.””

Keywords

TPZ: Tobacco Processing Zimbabwe.

Introduction

TPZ v Mutasa and Others is a case which discusses important legal concepts that stem from the process of continuously renewing fixed-term contracts. It discusses the legal concept of tacit relocation of a fixed-term contract of employment. In my view, this is a landmark ruling. Its clearly explains circumstances were tacit relocation obtains. In an era where most companies have most of their employees on fixed-term contracts, one has to scrutinise this judgement and fully appreciate the consequences of tacit relocation.

Facts

Briefly, the facts of this matter were as follows:

  • The employees were on fixed-term contracts which expired, and they continued to work for the same employer.
  • They were given another set of a fixed-term contract

 with terms and conditions which were not different from the expired contracts.

  • They did not contest these contracts on the argument that their status had not changed.
  • The new contracts ran from 1 May 2013 to 30 April 2015.
  • The contracts expired again, and the employees continued to work until the employer availed new contracts in June 2015.
  • These new contracts provided for a duration of 1 year.
  • The employees refused to sign the contracts and the employer proceeded to terminate the same.

Reasons for the judgement

The legal question that arose was with regards to the status of the employees. Was there a tacit relocation of the old contracts?

The court noted that the accepted legal position is that if an employer allows an employee to work beyond a period of the fixed-term contract, the contract will be deemed to have been renewed on the same terms as the old contract. It rejected the argument by the employer that there was a negotiation of a new contract which had led to the employees working beyond their fixed-term positions.

The court argued that the current legal position is that tacit relocation will be broken if one of the parties indicates an intention not to be bound by the expired fixed-term contract. This will be the case if an employer communicates with the employees that the terms of the old contract are no longer going to apply once the contract expires.

In the current case, the intention not to be bound by the old fixed-term contract was not communicated to the employees. They simply continued to work beyond the period fixed by their old contracts.

Determination

The appeal by the was dismissed on the finding that there was tacit relocation of the contracts.

Own comment

The court’s decision confirms what this jurisdiction has established over the years that when a fixed-term contract is not renewed, and an employee continues to come to work the terms of the old contract will continue to apply. This is of course, after taking into consideration the intention of the parties. The fact that parties were still negotiating the terms of the new contract does not stop tacit relocation of the contractual terms from happening.

2,233 Views

NEC FOR THE COMMUNICATION AND ALLIED SERVICES INDUSTRY V NETONE CELLULAR (PRIVATE) LIMITED AND THE MINISTER OF LABOUR AND SOCIAL WELFARE (CCZ 17/19)

“In short, a person who alleges that his or her constitutional right has been infringed must rely on legislation enacted in order to protect that right. He may not rely on the underlying constitutional provisions directly when bringing an action to protect the right unless he or she intends to attack the constitutional validity or efficacy of the legislation itself.”

Keywords

NEC: National Employment Council.

CBA: Collective Bargaining Agreement.

Introduction

This matter concerned a referral of a constitutional matter from the Supreme Court to the Constitutional Court. The parties consented to such a referral. At the close of the case, the Constitutional Court made a finding that the referral was defective and proceeded to dismiss the matter. It will be shown in this article that the law pertaining to the collection of NEC levies was left intact as a result of this ruling. This case is also important in indicating the procedure that parties must follow when dealing with a matter that goes to the root of the constitution.

Facts

On 9 January 2012 Netone received communication to the effect that a CBA for the Communication and Allied Services Industry had been published. The CBA was binding on all players in the industry, Netone included. Netone had not played any part in the creation of the CBA and neither was it a party to it. It thus took the view that the whole process was a matter of compelling it to be part of an association without its consent. It also took the position that this was a violation of its constitutional rights not to be deprived of property without compensation as it will be made to pay NEC levies as a result of the CBA.

The matter was initially heard by the High Court which declared certain parts of the CBA unconstitutional in so far as they forced Netone to be part of the association against its will. Section 82(1)(a) which provides for the binding nature of Collective Bargaining Agreement to all players in an industry was deemed to be constitutional as it was not violative of any rights of Netone.

Unhappy with the High Court decision, the NEC lodged an appeal with the Supreme Court. With the consent of the parties, the court made a ruling to the effect that the constitutionality of section 82(1)(a) and various sections of the CBA be determined by the Constitutional Court.

Reasons for the judgement

In its reasoning, the court noted that the High Court did not declare section 82(1), (2) and (3) of the Labour Act as invalid for want of compliance of the constitution.[i] The High Court decision in that regard had not been challenged. The question relating to the constitutionality of the said sections were not an issue when the matter was before the Supreme Court. The Constitutional Court thus found it irregular for the parties to refer this section to the Constitutional Court for the court to decide on the constitutionality of the same.

The Constitutional Court noted the issue to do with the constitutionality of the CBA provisions was also not properly referred to it for adjudication. Having found that these sections emanated from the provisions in the labour act which provisions were not declared unconstitutional the court decided that a constitutional matter could not be founded from the provisions in the CBA alone.[ii]

Determination

The matter was struck off the roll.

Own comment

It is submitted that the High Court ruling that had declared certain parts of the CBA for the Communication and Allied Services Industry unconstitutional was defective right from inception. It had left the relevant sections of the Labour Act untouched. The labour act was the basis upon which the CBA had derived its power to order companies to contribute NEC levies as well as to have its terms and conditions binding on a company that wasn’t party to the NEC.

As a result of this ruling, companies will remain bound by the terms and conditions found in the CBAs of their industries whether they were part of the agreement or not. Companies will also continue to pay NEC Levies.

[i]               NEC for the communication and allied services industry v Netone cellular (private) limited and the minister of labour and social welfare (CCZ 17/19) at paragraph 21.

[ii]               Ibid at paragraph 31.

3,297 Views

PRESCRIPTION OF LABOUR DISPUTES: CASE LAW

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted.

Introduction

This section deals with a review of cases that dealt with prescription of labour disputes. To fully understand this section one needs to go through the law on prescription as outlined in my previous article. In all the cases discussed herein, the claimants lost their matters simply because they delayed in lodging their claims and as a result, the claims had prescribed. The cases indicate the extent to which prescription can have far-reaching consequences to the detriment of those who lodge their claims out of time.

Chengetai Mapundu v ZIMRA[i]

In August 2007 the respondent stopped paying the claimants salary. 4 years later, the claimant brought the matter to the attention of a labour officer. The court remarked that the matter had prescribed. It noted that the claimant could not be saved by exceptions in section 94 of the Labour Act as the dispute could not be deemed to be continuing at the time it was reffered to the labour officer. It then decisively remarked as:

“I associate myself with the submissions made by Respondent’s Officer on this point. He relied on the case of City of Gweru v Munyari SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”

In other words, once a matter prescribes, that is the end of the matter. It

cannot be revived in a judicial forum. On that basis, the appeal must fail.”

This case is important in as far as it shows that once a case had prescribed it cannot be revived in a judicial forum.

Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine[ii]

Pursuant to special measures to avoid retrenchment in terms of section 12 of the Labour Act, the employer and employees agreed on a 25% reduction in the employee’s salaries in 2013. In 2014 the employees challenged the agreement at the High Court. They also brought the matter before the Labour Court. At the Labour Court (LC), the matter was dismissed because it was pending before the High Court (HC). Following the dismissal of the matter by the LC, the respondents proceeded to withdraw the HC matter. In September 2016 the same matter was referred to the NEC, de novo.

The LC accepted that the matter had indeed prescribed. The argument that the matter was continuing because the employees were still suffering from the effects of the reduction did not exonerate them. The court thus ruled:

“Equally so, an employee who decides not to act until the unfair labour practise has prescribed cannot possibly argue that because they are still being affected, that unfair labour practise should be deemed as “continuing”. Such an interpretation would result in rendering s94(1) redundant and superfluous”.

In essence, the fact that an individual is still suffering from the effects of the alleged unfair labour practise does not mean that the dispute should be deemed to be continuing. This is an important interpretation that the court came up with. The fact that the employees wasted time in forum shopping did not interrupt the prescription.

 Forbes Chitsenga v Total Mining Company and Others [iii]

The claimants in this instance alleged that they worked in acting positions from the year  2012  and were not paid their acting allowances. In 2017 they claimed alleged unfair retrenchment and included the issue of non-payment of acting allowances as part of the claim. At the NEC, the employees lost the retrenchment claim but won the claim involving the non-payment of their acting allowances.

At the LC, it was realised that the only flaw in the claim for acting allowance was that the claim was coming to the attention of the court after 2 years had elapsed. The dispute could not also be deemed to have been continuing owing to the fact that the employees had signed new contracts. In terms of these contracts, their acting capacities fell away as they were appointed into substantive positions. The matter was dismissed to the detriment of the claimants.

Conclusion

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted. Chengetai Mapundu v ZIMRA clearly illustrates that that once a matter prescribes, that the end of it. Forbes Chitsenga v Total Mining Company and Others as well as Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine can best be understood when one reads the Prescription Act especially provisions that relate to the delay and interruption of prescription. In these cases, the claimants time was wasted when they were forum shopping which exercise did not interrupt prescription. In all cases, the important lesson is that labour matters should be handled as a matter of agility.

References

[i]               LC/H/41/13

[ii]               LC/MT/60/18

[iii]              LC/B/15/19

3,899 Views

British American Tobbaco Zimbabwe v Jonathan Chibaya SC 30 /19

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Introduction

The use of expert evidence may at times become inevitable in a disciplinary hearing. This case shows the circumstances in which expert evidence is acceptable and how courts come to their final judgments when presented with expert evidence. This case also illustrates the extent to which disciplinary cases can become complicated in instances where evidence to be relied on is in the hands of third parties who are not willing to cooperate.

Facts

Money was unlawfully withdrawn from a company account. One instruction to withdraw the money was used twice. This meant that one transaction was legit, and the other one was fraudulent. The company noted that the withdrawal slips used in the fraudulent transaction bore personal details of the respondent. This led to the suspension and subsequent dismissal of the respondent from the employ of the appellant. On appeal, the Works Council which heard the appeal tried to get more evidence from the bank to no avail. It then concluded the case based on a report that had been compiled by a handwriting expert. The NEC appeal forum, as well as the Labour Court, set aside the dismissal noting that the evidence was inadequate. The decision of the Labour Court thus founded the Supreme Court appeal.

Reasoning

The court, as a starting point, had to determine whether on a balance of probabilities a case had been proved against the respondent. The Labour Court had found that the evidence presented had pointed to the involvement of banking staff and not the respondent. The court made use of the authority found in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H), 176 in which the court held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”

It went to realize that the Labour Courts view was right in that the evidence pointed to the involvement of banking personnel. It was in this regard that the court went on to state that:

“The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.”

Own comment

The paragraph above points to the fact that this disciplinary hearing became complicated when the bank failed to avail the necessary evidence as requested by the Works Council. Various possibilities which could not point to the respondent became inevitable. It is therefore advisable that practitioners dealing with disciplinary issues must ensure that they avoid making use of evidence that results in many possibilities of what could have transpired. In Jonathan Chibaya, the burden to prove that the respondent was the culprit became onerous.

The court proceeded to analyse the probative value of the expert evidence presented to it. The most important legal principle that the court relied on was that a court is not compelled to blindly accept evidence simply because it has been presented by an expert. A court is thus duty-bound to make its own inferences. Having made these observations; the court proceeded to conclusively remark as follows:

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Determination

The appeal was dismissed with costs.

Own Comment

The court’s ruling that the evidence relied on to terminate the employees’ contract was inadequate cannot be condemned. The expert had relied on photocopied documents. This meant that important information had been left out. There was a high chance that the respondent had been wrongfully convicted.

The finding that the court will not blindly follow expert evidence is a warning shot. Practitioners dealing with disciplinary issues must be careful when using expert evidence.  I have seen instances were forensic expert reports as well as financial audit reports have been used as evidence to dismiss employees in a hearing. I would advise those who contemplate using such reports to extensively go through this judgment before making knee jerk decisions to dismiss an employee.

1,407 Views

Agricultural and Rural Development Authority (ARDA) v Francis Baureni and 18 0thers SC 12/19

“In the final analysis, I take the view that the legislature could not possibly have intended that the complex processes enjoined in the orderly and equitable implementation of s 12C should be concluded and finalized within the limited time frame of only 14 days. To obligate both the Board and the employer concerned to make hurried and ill-considered choices and decisions would certainly not serve the interests of justice at the workplace as contemplated by s 2A of the Labour Act. As I have already indicated, a liberal and expansive interpretation of s 12C is in the best interests not only of the employees but also of the employer.”

Introduction

Act 5 of 2015 brought about a minimum retrenchment package payable to employees whose contracts are terminated on notice among other grounds.  This minimum retrenchment package was also applicable to a certain class of employees whose contracts were terminated on notice following the infamous Zuva Petroleum judgment. ARDA v Francis Baureni and 18 0thers is peculiar, in my view, because it relates to the interpretation of section 12C which section has been misunderstood since inception. This case also deals with the evidentiary burden in instances were an employer alleges that it has an incapacity to pay the minimum retrenchment package.

Background

The employees, in this case, had their contracts terminated on notice in December 2015. Whilst a claim to determining the fairness of their dismissal was pending an inquiry by a labour officer, the employer made an application for exemption from paying the minimum retrenchment package. The application was lodged with the retrenchment board. On hearing the dispute, the Retrenchment Board determined that the employer should pay the full retrenchment package. It was ordered that the payment will be in the form a lump sum as well as instalments spanning over a period of six months. The employer was not happy. An appeal was lodged against the decision of the Retrenchment Board. On hearing the appeal, the Labour Court dismissed it. The decision of the Labour Court then resulted in the current appeal dispute.

Findings and the law

In its first ground of appeal, the employer challenged the constitutionality of the retrospective application of the minimum retrenchment package that has come with Act 5 of 2015. This ground had to be correctly abandoned considering the Gratermans Case (2018) which had found nothing unconstitutional about the retrospective application of the Act.

The most important aspect of this judgement is, in my view, the interpretation of section 12C (3) and related provisions. This section holds that when an application for exemption is brought before the retrenchment board is must be “responded” to within 14 days, failure of which it will be deemed to have been granted in favour of the applicant. The applicant company argued that the word “respond” means that the board would have dealt with the matter and finalised it within the requisite period. The argument went on to state that, because the board had not determined the matter within 14 days, the matter must be decided in favour of the applicant company. The court did not agree. The Court made use of the ordinary grammatical meaning of the word “respond” and came to a finding that such a word did not mean that the board would have to conclude the matter within 14 days. It remarked as follows:

“The word “respond”, in its ordinary connotation, means “to say or do something as a reaction to something that has been said or done” (per the Cambridge English Dictionary). The word clearly does not denote anything akin to a final or definitive decision on anything raised by one person for a response to be given by another. Rather, it signifies an exchange of words or conduct between one or more individuals”

 It also argued that a period of 14 days it too little a time to completely deal with issues relating to incapacity to pay a retrenchment package. It determined that “respond” should be deemed to mean action taken by the board upon receipt of the application for exemption. In the court’s view, such action includes inviting parties to the hearing.

Further, the court made a finding that the applicant company had continued to take part in the proceedings called upon by the board even after the period of 14 days had elapsed. This meant that the applicant accepted that the proceedings were still valid.

In as far as evidence of incapacity to pay was concerned the court noted that the applicant company failed to place evidence before the court to show its inability to pay. The company had referred to unaudited financial statements, but such statements were never placed before the court. In addition, the bank statements that it had sought to rely on were deemed to be not enough proof of incapacity. The court had no other option, it decisively remarked;

“The onus clearly lay on the appellant to show that it should be exempted from paying the minimum retrenchment packages due to the respondents. As I have already stated, it failed to produce any meaningful evidence to substantiate its claim of insolvency or incapacity to pay the paltry sum of $55,000.00 that was ordered by the Board to be paid, partly as lump sums and partly by way of installments. It clearly failed to discharge the evidential onus that squarely fell upon it.”

Final determination

The appeal was dismissed with costs. The matter was thus decided in favour of the respondent.

Own comment

The Supreme Court is commended for taking the opportunity to bring clarity to Section 12 as amended by Act 5 of 2015. Most people, including me, thought that if an exemption matter before a retrenchment board is not resolved within 14 days it will have to be decided in favour of the applicant. This is clearly not the case as the word “respond” was given its dictionary meaning which means the boards reaction to the application. The court also brought clarity to the type of evidence that is required to satisfy a court of the incapacity of a court in paying the minimum retrenchment package. This is important for those contemplating such an application.

1,461 Views

Medecins Sans Frontiers (MSF) Belgium v Vengai Nhopi & 11 Others SC 11/19

“The arbitrator and consequently the court a quo erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in casu had with the appellant clearly stated each was for a fixed term. By reason of the burden that the law places on them, the respondents had to place more evidence before the court to show that in light of all the circumstances pertaining to their matter, they reasonably expected to be re-engaged in the appellant’s employ which they failed to do”.

This matter deals with the doctrine of legitimate expectation. This doctrine arises when one has an expectation of being reemployed after the termination of a fixed-term contract. With most companies’ having their employees on fixed-term contracts practitioners should be well versed with this doctrine. Medecins Sans Frontiers Belgium v Vengai Nhopi & 11 Others deals with the legal question whether this doctrine can arise when an employee’s contract is not renewed, and the employer calls him or her for an interview and subsequently the employee is not offered the job. I will point out the problems I have with the reasoning that the court reached as well as the loopholes in this case.

Introduction

Facts

The respondent’s contracts were not renewed upon effluxion of the time stipulated in the contracts. The employer had initially indicated that it was facing funding challenges and hence the renewals were not practical. After the contracts had expired the employer managed to get funding for some of its projects in Mbare, Chikomba as well as Gutu. The respondents were called for an interview. Most of these respondents did not get the jobs applied for. They applied to a Labour Officer and Labour Court challenging their separations. Both forums confirmed the unlawfulness of their dismissals and held that the employer had created a legitimate expectation of contract renewal. The question before the supreme court was therefore whether a legitimate expectation of contract renewal had been created by the act of calling these ex-employees for a job interview.

Court Findings and the Law

The employer argued that it could not renew the contracts as it wanted to employ people from the communities it was operating from. This disqualified most of the respondents. This position was rejected by the Labour Officer as well as the Labour Court which forums insisted that a legitimate expectation of contract renewal had been created.

The court accepted the employer’s position that there was no basis upon which the ex-employees should have developed a legitimate expectation of contract renewal simply because of an interview. These interviews, it was argued, was meant to assess the ex-employees suitability for the new positions. The ex-employees were not suitable as they did not reside in the communities that the employer wanted to operate from. In my view, the court accepted this as a valid reason for not renewing the contracts.

Reference was made to the employee’s contracts which explicitly provided that the employees should not have a legitimate expectation of extension of the contracts. The letter used to communicate the non-renewal of the contract also pointed to the fact that they should not develop a legitimate expectation of contract renewal. The court referred to the case between Magodora v Care International 2014 (1) ZLR 397 (S) which is the authority to the legal position that legitimate expectation of contract renewal will not arise where a contract explicitly forbids such. The court also stated that:

“Reference is also made to the case of Swissport (Pty) Ltd v Smith NO (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.”

It was because of the above that the court did not find any reason why the employees ought to have argued that they had developed a legitimate expectation of contract renewal.

Final Judgement

The court allowed the appeal. This meant that the employees were not unfairly dismissed.

Own Comment

I think the court missed the point. In my opinion, the question which ought to have been answered is whether an employer who lets fixed-term contracts to expire and then hires a new set of employees on the same terms as the ones terminated commits an unfair labor practice. The employer decided to hire new employees in place of those whose contracts had expired. This, in my view, was unfair. I will illustrate the point.

Section 12B (3) reads:

“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 reengaged; and

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

The interview in question should have been viewed considering the background of this case. The employer did not renew because he had no funding. That was his initial reason. When funding became available the employees should have been re-engaged. The conduct of the employer leaves a lot to be desired. It is argued that the intention from the start was to get rid of these employees. The reasons put forward might have just been a façade to hide the real reason.

The employer went on to employ other people. The reason set forth by the employer is unreasonable in that these employees did not say they could not work in the locations the employer was operating in. They should have been afforded an opportunity to get the jobs considering that they were once employed by the appellant.

It is because of this that I think the court should have afforded these employees protection.

1,687 Views

Emmanuel Masvikeni v National Blood Service Zimbabwe SC 28/19

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances, we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

Moyo v Rural Electrification Agency SC-4-1

Introduction

Disciplinary hearings will always recur in the life of a Labour Relations Practitioner or a Labour Lawyer. Not only do they recur, but they also come in all shapes and sizes. Emmanuel Masvikeni v National Blood Service Zimbabwe is important in illustrating the effects of not attending a disciplinary hearing as well as the standard of proof required in such inquiries. I will proffer the argument that employees in the position of the appellant ought to be protected. To illustrate this kind of protection I will expound on the South African position in similar matters.

Facts

The appellant was employed as a Blood Procurement Manager. He was accused of circulating emails that contained divisive and damning allegations against certain members of staff. He was duly notified of the disciplinary hearing but chose to abscond for no apparent reasonable cause. The hearing subsequently found him guilty and prescribed his dismissal as the appropriate penalty. All his appeal efforts internally and the Labour Court failed as all the forums concluded that he had been dismissed lawfully.

The law and findings

For starters, the court emphasized the legal position found inMoyo v Rural Electrification Agency in terms of which once an employee fails to attend a hearing, he or she cannot challenge the composition of the disciplinary committee that decided on the hearing. It argued that he should have attended the hearing and thereafter challenge the composition of the disciplinary authority.

The employee denied having authored the emails. The court had to decide whether from the record it can be shown that the employee was the author of the emails or not. It noted sections of the record in which the appellant had admitted to authoring these emails. This finding confirmed what the Labour Court had also found. The supreme court thus held that:

“In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.” (Page 10)

This case thus illustrates the standard of proof in disciplinary hearings. The court is bound to look at the most likely version between what is presented by the appellant and that which is put forward by the respondent in reply. This accords with the position found in Lewendo Ent. (Pvt) Ltd v Freight Africa Logistics (HC 2416/14) in which the court reasoned that:

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

Determination

The court concluded that the appellant had been correctly dismissed and it set aside the appeal.

Own Comment

I will endeavour to point out that the labour laws in Zimbabwe should evolve and protect employees in the position of the appellant. The basis of my assertion is the fact that the employee was charged for “accusing his superior of nepotism in the anonymous letters he published”. In my view, the appellant was whistleblowing and bringing to the attention of management what he considered unprofessional behaviour. It is unfortunate that we do not have laws that protect such employees as the appellant. This was going to be a different case had this happened in South Africa.

South African perspective

In South Africa, the Protected Disclosures Act (No 26 of 2000) protects employees who disclose information about unlawful or corrupt conduct by their employers or fellow employees. This means such employees cannot be dismissed when they disclose such matters. In a matter between the City of Tshwane Metropolitan Municipality V Engineering Council of South Africa And Another, an employee had been advising the employer about the dangers of appointing unskilled and inexperienced people in dangerous work. After not getting cooperation from the employer he decided to send an email to the employer advising him of the conduct. He then copied the Engineering Council and the Department of Labour. The employer decided to engage in disciplinary action against, but the authorities decided that this was a protected disclosure and that the employee could not be subjected to disciplinary action.

The South African position is thus commendable. The law protects employees if they disclose information that exposes management. This also, arguably, fosters democracy in the workplace.

It is submitted that unless and until our laws are evolved to afford such protection, employees will continue to be subject to conduct that at times may be tantamount to victimization.

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IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he conveys, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. “

Introduction

In February 2019 the Zimbabwe media was inundated with a landmark ruling which granted senior managers the right to trade union membership. The matter was decided by the Supreme Court of Zimbabwe and in no doubt changed the concept of trade union membership which many regarded as a right for “junior” employees.

In this article, I will not be discussing the Zimbabwean case. I will discuss the matter between IMATU & Others v Rustenburg Transitional Council which was decided in the South African labour court in 1999. Yes, as far back as 1999 South Africa had such a landmark ruling. I believe that this case is important in broadening our understanding of the right to trade union membership as it applies to senior employees as well as the convolutions that come with such a relationship.

Summary of facts

The employer, in this case, passed a resolution which had the effect of prohibiting the participation of its senior managers in trade union activities as well as serving in executive positions in such unions. The employer contended that its senior managers could not lawfully partake in Trade Union activities as this would be contrary to their duty of fidelity towards the organisation they serve.

Reasons for the Judgement

The court acknowledged that the relationship between a trade union and an employer can be adversarial in nature. Conflict is inevitable. A Union is an organisation meant to further the interests of employees is bound to extract what it can from the employer either through negotiations or were possible using strike action.

An employee can commit a breach of fiduciary duty if he or she works against the interests of the employer. This may happen if the employee in question discloses private and confidential information pertaining to the employer.

The court noted that at common law an employee could be dismissed if he or she joined a union and participated in its lawful activities. Such participation would be deemed to be a breach of fidelity towards the employer. Whilst the common law could justify the dismissal of the employee for breach of fiduciary duty simply by participating in a trade union activity the constitution had amended this position. In terms of the Bill of Rights, the right to join a trade union is unfettered. Neither the drafters of the constitution nor the drafters of the Labour Relations Act intended to limit the right of Senior Employees in joining a trade and in participating in its lawful activities.

Noting that the senior employees can participate in the lawful activities of a trade union the court proceeded to warn such managers. Disclosure of private and confidential information to a Trade Union will constitute a dismissible offence. The court then decisively remarked as follows:

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he convey, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. He can, I believe, participate in discussions on strategy to which information given to him in confidence is irrelevant, since this is implicit in his right to participate in trade union activities, but he must guard himself even from exercising a judgment on the basis of such information. The delicacy of discretion that this entails makes his position an unenviable one, but the Act gives him the right to enter this minefield if he wishes.”

Court Decision

The court set aside the resolution by the council thus allowing its senior employees to join a trade union of their choice and to participate in its lawful activities.

Own Comment

Senior managers contemplating joining a trade union should take heed of the need to tread with caution as warned by the court. The court did not mince its words. It’s a “minefield”. Balancing the relationship as a trade union official and as a senior manager is complex as noted above. It is thus advisable that senior managers recuse themselves from trade union membership.

2,938 Views

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers […]

Introduction

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers.

Summary of Facts

This is an appeal against the decision of the Labour Appeal Court. The matter was between Mmoledi who as in the employ of Kievits Kroon Country Estate (Pty) Ltd. Between the month of April and May 2007, the employee, Mmoledi, requested to have her shift adjusted to accommodate her application for sick leave. She needed to attend a course as a traditional healer. The application for leave was granted. It is important to note that the course emanated from the visions that she reportedly saw which visions were interpreted as a calling for her to become a traditional healer. 

On 1 June 2007 she approached her supervisor with a similar request. This time around she required a period of 5 weeks to attend the course. This request was made at a time when she had exhausted all her leave days. Her supervisor was willing to accommodate her request albeit for a shorter period of week. Mmoledi insisted that she required more time. To support her request for more time off she brought a note from her trainer which note indicated that she needed more than one week. The documents were left on her supervisor’s desk as the supervisor was not in the office on the day the papers were brought to the company.

The employee subsequently did not return to work within the period expected by her supervisor. The employer proceeded to institute disciplinary proceedings noting that the employee had breached work place rules. A disciplinary authority appointed in terms of the company rules found that the employee was guilty of misconduct and prescribed her dismissal from employment as the appropriate penalty. In dismissing her the authority concluded that her period of absence could not be construed as Sick Leave.

Aggrieved by the decision, the employee appealed to the Commission for Conciliation, Mediation, and Arbitration (CCMA). The decision to dismiss her was set aside on the basis that her absence from work was due to a situation which was beyond her control. The employer was aggrieved by the decision of CCMA and appealed to the Labour Appeal Court were the court concluded that the decision by CCMA was correct.  The Supreme Court of Appeal was thus seized by an appeal by Kievits Kroon Country Estate (Pty) Ltd which emanated from the latter’s dissatisfaction with the conclusion reached by the Labour Appeal Court.

The issue in dispute

The major question was whether the commissioner of CCMA properly applied the principles applicable to an application for unpaid leave for issues unrelated to the contract of employment between the parties.

Further, the question was whether a traditional healer’s certificate could be construed as a medical certificate for purposes of applying for sick leave.

A discussion of applicable labour law principles

The Supreme Court of Appeal noted that the employee genuinely believed that she was ill. This was because of the cultural belief that she was being called by her ancestors to become a traditional healer. The court proceeded to note that such cultural beliefs existed in the South Africa Society and have been recognized by the courts before. It went further to note that such beliefs were constitutionally protected.

It was also highlighted that it was beyond any dispute that people sometimes seek assistance from traditional healers once faced by similar situations. The court recognized that the employee was seeing visions and she made use of traditional healing methods because of her cultural belief. This evidence went on unchallenged.

The court concluded that the commissioner was correct in noting that the employee’s failure to report for duty was reasonable and that beyond her control. In the eyes of the Supreme Court of Appeal, the decision by the CCMA commissioner was correct.

Conclusion

The Supreme Court of Appeal concluded that the Labour Appeal Court was correct to dismiss the appeal.  It then proceeded to also dismiss the appeal with costs.

NB: This summary was submitted to the University of South Africa (UNISA) in partial fulfilment of the requirements for the Degree of Bachelor of Laws (LLB).

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