Muparaguda v Commercial Workers Union of Zimbabwe (SC 55/18)

“There having been no irregularity in the manner in which he uplifted the suspension, the upliftment of the suspension was perfectly lawful and binding. An employer who elects to pay an employee during the course of disciplinary proceedings voluntarily assumes an obligation from which he cannot unilaterally wriggle out without first re-suspending the employee without pay. Although it was within the appellant’s discretion to re-suspend the respondent without pay, it did not exercise that option until the contract was lawfully terminated on 26 April 2013. For that reason, the judgment of the court a quo upholding the arbitral award of 26 April 2013 cannot be faulted.”

Introduction

At times it becomes necessary to suspend an employee without pay in order to carry out an investigation into an allegation that the employee has breached workplace rules. This is called a precautionary suspension. There are also instances where an employee will have to be suspended as a function of a penalty imposed in a hearing. This is called punitive suspension. Muparaguda v Commercial Workers Union of Zimbabwe deals with a precautionary suspension. It answers the daunting legal question as to whether an employee is entitled to remuneration between the time of suspension and the time of his dismissal.

Facts

The facts of this case can be summarised as follows:

  1. The employee, Muparaguda, was employed on the 19th of January 2009.
  2. On 12 October 2009, he was suspended without pay following allegations of breach of the National Employment Code of Conduct, SI 15 of 2006.
  3. On 3 November the hearing official referred the matter to the General Secretary noting that he was unable to finalise the matter.
  4. The General Secretary wrote to the employee informing him that his suspension without pay had been uplifted and that he was now an employee on suspension with pay.
  5. On 30 November 2009, the General Secretary dismissed the employee pursuant to a request by the hearing official who had indicated that he could not finalise the matter.
  6. The matter was brought before a Labour Officer who made a ruling nullifying all the proceedings. He proceeded to hear the matter afresh and made a ruling that the dismissal was unfair for want of compliance with substantive and procedural fairness requirements of the National Employment Code of Conduct, SI 15 of 2006.
  7. The date of award, 26 April 2013, was deemed to be the effective date of the employee’s termination and that he be paid his salary and benefits from the date of suspension to the date of the award. The appellant was not happy with the verdict given by the labour officer and appealed to the Labour Court.
  8. The employee was also not satisfied with the verdict given by the Labour Court thus founding an appeal to the Supreme Court.
  9. At the Supreme Court, the only legal question was whether the employee was entitled to a salary from the date of suspension to the date of lawful dismissal, from 12 October 2009 to 26 April 2013.

Reasoning

The Court reasoned that there was nothing wrong with the General Secretary altering the suspension from being an employee on a suspension without pay to an employee on a suspension with pay. This was considered to be an administrative function and not a disciplinary action. This administrative function was permissible in terms of the constitution of the employer as the General Secretary had the discretion to suspend an employee with or without pay.

The court thus reasoned that when the administrative action of the General Secretary was put into effect, the status of the employee changed to that on suspension with pay. This, therefore, meant that when the arbitrator nullified the proceedings, the parties reverted to the status quo ante with the employee being one on a suspension with pay. The court thus decisively remarked as follows:

“Thus, the respondent could not have reverted to being an employee on suspension without pay because that status no longer existed.”

Verdict

The appeal was dismissed.

Own Comment

This judgment was well reasoned, and the legal principles articulated in this case are clear cut. If there are irregularities necessitating the nullification of disciplinary proceedings, the employee reverts to the status he held before the nullification of the proceedings. In the present case, the last status the employee held was that of an employee on suspension without pay. This was the status he reverted to. This was although the employee had been previously suspended without pay and benefits at one point.

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