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

QUERY:

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

RESPONSE:

Introduction

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

SI 33 OF 2019 Provisions

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

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

Finance Act Amendment

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

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

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

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

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

Conclusion

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

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TERMINATION AFTER THE END OF A PROBATIONARY PERIOD

QUERY:

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

RESPONSE:

Introduction

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

St. Giles Medical Rehabilitation Centre v Patsanza

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

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

Conclusion

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

1,741 Views

THE NEED TO EXHAUST DOMESTIC REMEDIES PROVIDED IN A CODE

QUERY:

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

RESPONSE:

Introduction

The quickest response to this question is embedded in section 101(5) of the Labour Act (Chapter 28.01) which precludes such a manager from proceeding to refer a matter to a labour officer before appealing internally. This section reads:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

The section is clear, a labour officer doesn’t have jurisdiction to entertain a dispute that is still under ambit the code of conduct. The manager, in this instance, should appeal internally first and ensure that all channels are exhausted.

Jambwa v GMB

Individuals fall in the trap of prematurely referring disputes that are still within the ambit of domestic remedies. Jambwa v GMB (HC 11113/11) is one case in which an employee decided to appeal to the High Court against a decision of a General Manager for GMB whereas the code of conduct clearly stated that such appeal should be referred to the Labour Court. In its decisive remarks the court had this to say:

“In casu an appeal to the Labour Court from a decision of the General Manager is a domestic remedy available to the applicant. It is able to afford him redress. Therefore, the applicant has not exhausted domestic remedies as he should have proceeded in the Labour Court by way of appeal. The application cannot succeed on that basis.”

Moyo v Gwindingwi N O & Anor

The same problem was also witnessed in Moyo v Gwindingwi N O & Anor HB 168/11 in which the courts also thought:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

These cases clearly point to the need for an aggrieved party to fully comply with the provisions of a code of conduct before embarking on any external interventions. If a wrong forum is approached that forum will have no option than to dismiss such an appeal or application.

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

Conclusion

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

978 Views

HIRING A CONSULTANT TO PRESIDE OVER A DISCIPLINARY HEARING

QUERY:

At a certain company, the director hired a consultant to preside over a disciplinary hearing. Is this proper? The company doesn’t have a company code, it uses SI 15 of 2006.

OPINION:

My problem with using a consultant to deal with disciplinary issues when using SI 15 of 2006 stems from the definition of the “disciplinary committee” and that of a “disciplinary authority” in terms of section 2 of the Statutory Instrument (SI).

Definitions provided for in the SI

A look at the definitions used in this statutory instrument will indicate that the person or persons who should preside over a disciplinary case should be from the same organisation. This must be someone who is part and parcel of the organisation.

Let’s have a look at the definition of a disciplinary committee as a starting point. Its states:

“disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees’ representatives, to preside over and decide over disciplinary cases and/or worker grievances. (Own Emphasis)

The definition is straight forward, a committee must be made up of employer and employee representatives. A consultant in my view is neither of the two. It is submitted that the words “to preside over and decide over disciplinary cases and/or worker grievances” do indicate that such committee is not there to preside over a single case. It should be or it would have been established to deal with all cases that happen at such an establishment. I don’t think a consultant or even a committee hired to deal with one case would be within the definition of the SI.

With regards to a disciplinary authority the definition is precise:

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace;

This authority must be someone or some committee “dealing with” matters in a works place. The words “dealing with” do not denote a single case. This would be someone or a committee specifically tasked with the business of dealing with such issues as a matter of course. Again, one consultant hired to deal with one case will not fall within the definition of authority as per the SI.

Intention of the legislature

It is my view that the intention of the legislature must have been to preclude anyone from outside an organisation from dealing with disciplinary cases. If the intention was to allow anyone outside an organisation the statutory instrument would have been more specific. This, in my view, confirmed by section 8 of the SI which section deals with internal appeals. The section says:

“Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.” (Own Emphasis)

An appeal should be handled by someone within an organisation. The legislature intended that the whole process be handled internally before being dealt with outside the organisation on appeal or review. It would be absurd to think that the SI allows an initial hearing to be handled by an outside person and whereas the appeal should be dealt with by an internal person.

Impartiality

 Besides the above, I believe that disciplinary cases require that someone who is not an interested party preside over them. Once someone hires a consultant, the inescapable feeling is that this consultant has been hired to dismiss an employee at all costs. Such a consultant will be paid by the employer. He or she becomes an interested party who is bound please his or her master.

At the end of the day, it all boils down to one legal principle, “Not only must Justice be done; it must also be seen to be done”

Conclusion

Once a consultant is hired to discipline or dismiss an employee, justice would have failed, and such proceedings will be a nullity.

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