“I agree with the submissions by Mr Mpofu that the right to dismiss is available at common law and that such right is entrenched. The employer at its election may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion”.
ZIMPLATS v Ronald Godide (SC 2 – 2016) deals with the discretion of an employer to dismiss an employee upon taking a serious view of the offence committed. It also explains why an employer is entitled to look at the previous disciplinary record of the employee.
The respondent employee was a mechanical foreman for ZIMPLATS (Zimbabwe Platinum Mines (Private) Limited). In the process of resolving a breakdown, the employee secured a rubber with worn-out bolts instead of using the new ones. This resulted in another breakdown. This was on 14 March 2022. Production was lost because of this breakdown. Later the employee was charged with gross incompetence or inefficiency in the performance of his duties. The employee had earlier on received a final warning for another offence. He was then dismissed. It was the disciplinary committee’s finding that the employee was sitting on a final warning letter which necessitated a dismissal. Internal appeals failed. The Labour Court was of the view that the final warning letter had been issued for a different offence as a result it was not applicable to the disciplinary proceedings that had led to the dismissal of the employee. It set aside the dismissal and imposed a final warning. Aggrieved ZIMPLATS petitioned the Supreme Court.
The Supreme Court upheld the employer’s discretion to dismiss an employee upon a finding that the conduct of the employee goes to the root of the employment relationship. It buttressed this common law position as follows:
“At common law an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion.”
It added that the discretion of an employer can only be substituted only if the employer acted on a wrong principle or of the discretion was irrational. Once an employer has taken a serious view of the matter dismissal may be warranted despite what the code of conduct says:
“The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the code does not provide for dismissal as a penalty”.
The respondent employee’s argument was that the final warning letter he was sitting on ought not to have been considered in coming up with an ultimate penalty. The Supreme Court disagreed. It argued that the employee’s conduct in the working environment, including previous disciplinary records, must be considered when the employer exercises the discretion of imposing an ultimate penalty.
The court’s conclusion was that the appeal was well-placed, and it upheld it.
ZIMPLATS v Ronald Godide SC 2 – 2016 is a case one cannot ignore. It contains several lessons. The first lesson is that the employer has the right to choose an appropriate penalty when an employee has been dismissed. This discretion to dismiss can go against the penalties prescribed in a code of conduct. This is because, at common law, the employer has the discretion to dismiss an employee upon taking a serious view of the matter. This position has also been held and supported in Mashonaland Turf Club v George Mutangadura (SC 5/2012) wherein the Supreme court noted:
“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”
The second lesson is that an employer can take into consideration previous warning letters given to an employee in the exercise of the discretion to dismiss. It is not a procedural irregularity to consider how an employee was previously performing before issuing a penalty. The second lesson is also buttressed in other Supreme Court Judgements such as Fraser Muyaka v BAK Logistics (Pvt) Ltd (SC 39/2017) where the court held:
“The employee’s previous disciplinary record is a relevant consideration in terms of s 12B (4) of the Labour Act”.