Fair Dismissals!

What is often ignored are the circumstances where dismissal is fair! Fairness as a legal principle is not as simple as the lay person may presume. It is explained from the substantive law and the procedural law perspectives. In this section, we commence by defining the two types of fairness that are recognised in our law, substantive fairness, and procedural fairness. We will then proceed to outline examples from our case law in which fair dismissals were documented. We examine the most common types of offences found in various codes of conduct in Zimbabwe.

Several authors have written about unfair dismissals and the consequences thereof. Our Labour Act also clearly outlines circumstances where one is deemed to be unfairly dismissed. As an example, if was one is on a fixed-term contract that is terminated and replaced by another employee, automatically unfair dismissal would have occurred. This is just one example.

What is often ignored are the circumstances where dismissal is fair! Fairness as a legal principle is not as simple as the lay person may presume. It is explained from the substantive law and the procedural law perspectives. In this section, we commence by defining the two types of fairness that are recognised in our law, substantive fairness, and procedural fairness. We will then proceed to outline examples from our case law in which fair dismissals were documented. We examine the most common types of offences found in various codes of conduct in Zimbabwe.

Substantive Fairness

Substantive fairness emanates from substantive law. According to Pete et al “substantive law deals with the question of whether or not a legal claim exists in any particular situation”.[1] Substantive fairness in a disciplinary case, therefore, entails whether or not, on a balance of probability, the employee is guilty of the charges being levelled against him or her. It is not concerned about the steps so taken to prove that the employee is guilty.

Procedural Fairness

Procedural fairness comes from procedural law or adjectival law. This “deals with the procedures to enforce legal claims in civil or criminal law”.[2] In a disciplinary case, this is concerned with the steps taken to prove whether the person is guilty or not. These steps are outlined in the code of conduct and the labour act. The fact that the employee is given three days’ notice before attending the hearing, requiring the employee to mitigate before the ultimate penalty is given are examples of procedures found in codes that ensure that there is procedural fairness.

There is a fine line between the two types of fairness and in most cases, a substantial departure from the rules that govern both types of fairness can result in the vitiation of the disciplinary hearing. As a general, in Zimbabwe, procedural irregularities that do not result in prejudice may be condoned by a court.[3] In the famous case between Nyahuma v Barclays Bank of Zimbabwe SC 67-05, the Supreme Court pronounced that:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

A typical example of a procedural irregularity that can result in the invalidation of proceedings is found in Unifreight Limited v Lighton Madembo SC 6 – 18. Here the Supreme Court found that the fact that the chairman of the hearing acted as both the complainant and the chairman prejudiced the employee of a fair hearing. This was compounded by the fact that no record of the hearing was present and that the members of the worker’s committee did not attend the hearing.

Fairness in Context

Here we assess common offences found in codes of conduct across the labour law spectrum in Zimbabwe. We review the facts and the law that resulted in the court concluding that the dismissals were fair.

We accept that each context is unique and what the courts decided in these cases may be different from what one may face in reality. Whilst this is so, the cases discussed here provide an important guide in our quest to understand what fairness entails.

Any Act of Conduct or Omission Inconsistent with The Fulfilment of The Express or Implied Conditions of His or Her Contract

This is a common offence favoured by several employers. The offence talks about express conditions. These are conditions written down either in a contract, instruction, standard operating procedure, or policy, to mention a few. Violation of such terms will constitute an offence chargeable in terms of a code of conduct. Equally so, every contract has implied conditions of contract. In terms of the common law, every employee is expected to behave in a manner that promotes the employer’s interests. This is called the fiduciary duty of trust between an employer and an employee. Such a duty does not necessarily need to be written down because it is implied in every contract of employment.

As far as this offence is concerned, there is no “fixed rule defining the degree of misconduct that will justify dismissal”[4]. This is perhaps the reason why employers prefer this charge as what is important is that the employer proves that the conduct of the employee undermined the trust and confidence between the parties.

In Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20 the Supreme Court concluded that an employee who fails to follow a new reporting structure established by the employer can fairly be dismissed in terms of this offence. The court remarked:

“In my view, the appellants conduct cannot be regarded as consistent with the fulfilment of her employment. Her conduct undermined the trust and confidence between the parties as envisaged by her correspondence with the Chief Executive Officer. It is an implied term of the appellant contract that she my comply with orders of the respondent bank. The failure by the appellant to comply with the order, despite numerous invitations to do so made the relationship between the parties untenable. She should have complied with the directive and then taken corrective measures later. In my view, this amounted to a serious misconduct which warranted dismissal”.

It, therefore, follows that it will be substantively fair if an employee were to be dismissed because he or she acted in a manner inconsistent with the employment contract provided that the misconduct goes to the root of the employment relationship. This is shown when the conduct or omission itself warrants the inference that the offence committed undermines the trust and confidence between the parties.

Gross Negligence

The test for negligence is settled in our civil law. According to Kasvosve v Masuku & Ors HH 64 – 2018, the test is whether a reasonable person would have behaved in the same manner as the individual in question. If on a balance of probability it is found that YES a reasonable person would have behaved in the manner the accused did, then there is no offence and the employee ought to be found not guilty. If on the other hand, the answer is a NO, because no reasonable person in the position of the accused would have acted in the manner he or she did then a guilty verdict may be concluded.

Negligence tested in this form is also found in criminal matters. The so-called reasonable person test is used to assess whether one was negligent or not.

In Kasvosve v Masuku & Ors HH 64 – 2018 the court had this to say:

The principles applicable to an inquiry into the existence or absence of negligence are settled. Jonathan Burchell in Principles of Delict (Cape Town, Juta & Co Ltd) at p 86, summarises them as follows:

            “the test for determining negligence is as follows:

Would a reasonable person, in the same circumstances as the defendant, have foreseen the possibility of harm to the plaintiff;

Would a reasonable person have taken steps to guard against that possibility;

Did the defendant fail to take the steps which he or she should reasonably have taken to guard against it?

If all three parts of this test receive an affirmative answer, then the defendant has failed to measure up to the standard of the reasonable person and will be adjudged negligent.”

In disciplinary hearings, therefore, we submit that for the negligence to be “gross” it should be of such a magnitude that no reasonable person would have behaved in the manner the accused did. In CIMAS Medical Aid Society v Lindiwe Mhunduru (SC133/21), an employee who recommended the awarding of a tender to a certain construction company was deemed to be grossly negligent and the Supreme Court upheld her dismissal from employment. In this case, the court noted that a senior employee who knows of the existence of a policy but proceeds to follow a procedure that is contrary to the written policy is deemed to be grossly negligent. The court made use of the principles outlined in Rosenthal v Marks 1944 TPD 172 at 180 where it was said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to

give consideration to the consequences of his actions, a total disregard of duty”.

Wilful Disobedience to a Lawful Order

This is a common offence found in the majority of codes of conduct and not surprising that the National Code of Conduct (Statutory Instrument 15 of 2006) retains this as one of the offences that can be charged under the code. The offence originates from the basic fact that an employee owes the employer a duty of fidelity in terms of which the employee is expected to further the interests of the employer. An employee is thus expected to obey the lawful and reasonable instructions of the employer.

In Innscor Africa (Private) Limited v Terrence Gwatidzo (SC 5/2015) the court had an opportunity to deal with a case involving an employee who refused to give the employer a written report as to why he had not worked emergency overtime. The employee argued that he was on an authorised off and there was no need for the employer to question why he did not avail himself to work overtime. The court upheld the dismissal of the employee. In coming to this conclusion, the Supreme Court observed that the instruction given by the employer was lawful and reasonable. It was deemed lawful because it was capable of being carried out. The court argued that the existence of a moral excuse for the disobedience does not result in the offence being less wilful or will not result in the employer’s order being less lawful. In the circumstances, the dismissal was upheld.

Theft or Fraud

Theft or Fraud are perennial problems in the modern workplace. The two charges are also in our view mishandled because they are also found in criminal law. Very often, the employers ignore the fact that the criminal law and labour law routes of disciplining a person are different routes. It has been emphasised on various forums that the fact that an employee has been charged by the state for theft and fraud does not preclude the employer from also pursuing the internal disciplinary hearing. The mistake often made therefore is where the employer waits for the criminal law processes to finish and then move to dismiss the employee. In some cases, the employee is found not guilty by the criminal justice system leaving the employer with a dilemma as to what should be done next. Very often employees who are guilty of theft or fraud are then left untouched. The best option proposed is that of pursuing the criminal law route and the labour law route (internal disciplinary hearing) at the same time. This is so because the outcome of one process does not interfere with the outcome of the other. An employee may still be found guilty in internal proceedings whilst the criminal law justice system may find them not guilty.

We submit that the criminal law definition of these two offences applies in Labour law. The definitions outline the elements that will have to be proven by the employer on a balance of probability. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23][5] under section 113, theft is outlined as follows:

“Any person who takes property capable of being stolen:

(a) knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and

(b) intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control”.

The same Act outlines Fraud as follows:

“Any person who makes a misrepresentation:

(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;”

It should be remembered that whilst the criminal law definitions have been used to explain what theft or fraud this does not change the burden of proof. In ZESA v Dera 1998 (1) ZLR 500 (S) cited in Pia Ngwaru v First Mutual Health Company (Private) Limited Sc 38-19 the Supreme Court argued:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a

person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. A claims money from B, B claims an order that he owes nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft.

So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the “balance of probability” test. ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.”

The fact, therefore, remains that, the fact that a code has an offence that is criminal in nature, does not change the standard of proof expected in the disciplinary proceedings. A disciplinary committee or authority faced with a Theft or Fraud case will still need to balance the probabilities of the accused’s guilty or not guilty.

Absence from Work for a Period of Five or More Working Days Without Leave or Reasonable Cause in a Year

This is also a common offence. The basis is that every employee is employed to render personal services to the employer. If the employee decides to be absent this will constitute a breach of the rendering of personal services.

In Cotton Company of Zimbabwe v Muchirahondo SC 262/99 the Supreme Courtfound that an employee who admitted being away without official leave was properly charged and dismissed. The court mentioned:

“There is no basis for accusing the bodies that heard Muchirahondo’s case of having relied upon the fact that he was serving a written warning for the offence of having been absent from work for three to four days without leave in finding him guilty of the offence he was charged with. Even if reference to the written warning became a factor in the assessment of guilt, it could not affect the fact that Muchirahondo admitted that he was absent from work for five or more days without leave. The fact that he was serving a written warning for previously having been absent from work without leave showed that he was aware of the requirement that he should seek leave from the employer for being absent from work. Any reasonable tribunal faced with such an admission of the elements of the offences charged would find the offender guilty as charged.”

This is a clear offence and does not require further elaboration. If any employee does not further the interests of the employer because of being absent for a period of 5 or more days, dismissal is warranted.

Gross Incompetency or Inefficiency in The Performance of His or Her Work

This offence is split into two. An employee will have to be found guilty of either incompetency or inefficiency for the dismissal to be warranted. This offence was correctly explained in Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39-17. In this case, the employee was found to be grossly inefficient because he failed to supervise his department and relied on assumptions for almost 6 months. He also failed to attend three meetings he had scheduled. In that case, the court aptly explained the two offences as follows:

“The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.” The use of the word “or” means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them. Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done.” Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc” (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760 and 766).”

Habitual and Substantial Neglect of His or Her Duties

For one to be found guilty of this offence the act or omission complained of should be habitual, substantial and should also constitute neglect of duties. The word habitual means that the behaviour complained of must be continual, perpetual, repeated, or frequent. It does not have to be one event. Secondly, the act should be substantial, which means it must be considerable, or material. Lastly, there should be neglect of duties. Neglect means that the employee should have shown that they do not care for their duties. Trivial and infrequent neglect of duty is not chargeable under this offence.

In Happison Sigauke v Falcon Gold Zimbabwe Limited (SC 18/2017) the Supreme Court confirmed the dismissal of an employee who had failed to have a spare key to a safe for 17 years. It said:

“The consistent failure by the appellant over this period to take any measure to secure the safe whether by replacement of locks or otherwise can only amount to habitual and substantial neglect of his duties.”

Lack of A Skill Which the Employee Expressly or Implied Held Himself or Herself Out to Possess.

This is one offence that one can commit at the point of being engaged by the employer. It is common for prospective employees to undertake that they can do certain tasks. In a world where getting a job is onerous some have found themselves having to over-promise to get a job. Most codes are alive to this problem and this offence has been taken into consideration to deal with us unfortunate situations.

In Total Zimbabwe (Pvt) Ltd. v Moyana (09-03) the job that the employee was required to perform required that he verify delivery notes after having seen and verified the contents as written on the delivery note. The employee did not do so despite the contract being clear that this was a requirement of the job. This was despite the employee has undertaken to the employer that he could work in such an environment. In upholding the employee’s dismissal from employment, the Supreme Court had this to say:

“It seems to me that in signing such an important document as a delivery note without having seen the products it referred to as  having been loaded  onto the truck, Moyana denied himself the opportunity of exercising any of the skills he had undertaken to exercise in the performance of his duties. He was in fact committing a fraud on his employer, in that by his signature on the delivery note he misrepresented that he had exercised reasonable skill by physically checking and counting the contents of the truck. He certified everything as being in order when that was not the case”.

Conclusion

We have discussed the most common offences chargeable in terms of the codes of conduct in Zimbabwe. What is important to take note of are the various elements of each offence which if proven from a substantive and procedural law perspective, results in a fair dismissal.


[1]              Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2nd ed (2013) Oxford University Press.

[2]              Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2nd ed (2013) Oxford University Press.

[3]              Unifreight Limited v Lighton Madembo SC 6 – 18.

[4]              Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20.

[5]              Act 23/2004

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