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.

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