UNFAIR DISMISSAL: THE ZIMBABWEAN CONTEXT

BASIS

In terms of the Section 65 (1) of the Zimbabwean Constitution (Amendment No. 20) every person has a right to fair and safe Labour Standards. It therefore follows that every Zimbabwean citizen has a constitutional right to fair and safe labour standards. This include the right not to be unfairly dismissed from employment. Unfair dismissal claims in Zimbabwe are made under The Labour Act [Chapter 28:01} hereinafter referred as the Act. 

Section 12 (B) of the Labour Act [Chapter 28:01] sets guidelines of what constitutes unfair dismissal. A person is unfairly dismissed from employment if an employer fails to show that he dismissed an employee in terms of an employment code. If there is no employment code an employer should show that he dismissed an Employee in terms of the model code in Section 101 (9) of the Labour Act [Chapter 28:01].

THE MODEL CODE

The model code as provided in section 101 (9) of the Act is Statutory Instrument 15 of 2006 [SI 15/06] commonly referred to as the National Employment Code. The NECC gives guidelines on termination of employment contracts. Section 5 of the Model Code states as follows:

No employer shall terminate a contract of employment with an employee unless—

(a) the termination is done in terms of an employment code which is registered in terms of section 101(1) of the Act; or

(b) in the absence of the registered code of conduct mentioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

(c) the employer and employee mutually agree in writing to the termination of the contract; or

(d) the employee was engaged for a period of fixed duration or for the performance of a specific task and the contract of employment is terminated on the expiry of such period or on the performance of such task.

The model code is identical to section 12 B of the Act in some respects. However, it adds guideline  (c). In terms of of Section 5 (c) an Employee is unfairly dismissed if there is no mutual agreement as to the termination between the Employer and the Employee. Unfair dismissal also occurs when the Employer summarily terminates a contract for an employee due to misconduct or without holding proper disciplinary procedure as provided in the NECC. Dismissing an employee before expiry of a fixed term contract or performance of a specific task also constitute unfair dismissal. If an Employer dismisses an Employee in terms of an employment code other than the NECC the employment code should be registered in terms of Section 101 (1) of the Act or else it is an unfair dismissal.

TYPES OF MISCONDUCT

The model Code sets minimum guidelines of what constitutes misconduct. The guidelines in terms of Section 4 are as follows:

An employee commits a serious misconduct if he or she commits any of the following offences—

(a) any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract; or.

(b) wilful disobedience to a lawful order; or

(c) wilful and unlawful destruction of the employer’s property; or

(d) theft or fraud; or

(e) absence from work for a period of five or more working days without leave or reasonable cause in a year; or

 (f) gross incompetency or inefficiency in the performance of his or her work; or

 (g) habitual and substantial neglect of his or her duties; or

(h) lack of a skill which the employee expressly or implied held himself or herself to possess

An employee who commits the above misconducts may be brought before a Disciplinary Committee n the manner provided in Section 6 of the Model Code as provided below. An Employer cannot summarily discharge an Employee for misconduct without holding a proper hearing to investigate and establish the misconduct alleged. Such summary termination constitute unfair dismissal.

DISCIPLINARY PROCEDURES

The NECC gives minimum guidelines on conducting disciplinary procedures by an Employer. An Employer who wishes to conduct disciplinary procedings against an employee should consider the guidelines in Section 6 of the NECC. A violation of the Disciplinary process may result in the whole process being invalid and constitute an unfair dismissal.

Section 6 of the model code states as follows:

(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.

(2) Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case—

(a) serve a notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or

(b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.

(3) A determination or order served in terms of subsection 2(b) shall provide for backpay and benefits from the time of the summary suspension.

(4) At a hearing in terms of subsection (2), an employee shall have the right to—

(a) at least three working days notice of the proceedings against him or her and the charge he or she is facing;

(b) appear in person before the employer or the employer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, worker’s committee member, trade

union official/officer or a legal practitioner;

(c) call witnesses and have them cross-examined;

(d) be informed of the reasons for a decision;

(e) address in mitigation before the ultimate penalty is imposed.

In terms of the model code where the employer intends to conduct disciplinary proceedings against an Employee he should within 14 days complete the investigation and the hearing. Failure to complete the disciplinary process with 14 days is an irregularity that may render the whole process invalid. If the Employer insist on continuing with the process and dismiss the Employee as a result, that constitutes an unfair dismissal. Similarly failing to give an Employee at least 3 days notice before a hearing also constitutes a gross irregularity that can be challenged by an Employee at a hearing and if the Employer continues with the hearing it may constitute an unfair dismissal.

Other key-points to consider are that an employee has a right to call witnesses and have them cross examined as well as cross examine witnesses brought by the employer. The Employee has a right to be represented , informed of the reasons for the decision and also to address in mitigation where he is convicted before a penalty is imposed. All these conditions are peremptory and any breach by the Employer constitutes a gross irregularity and any dismissal emanating from such a disciplinary process is unfair.

If an Employee is suspended without salary and benefits should he be reinstated to his employment or otherwise found not guilty after the disciplinary proceedings he should be awarded his salaries and benefits due from the date of suspension. A letter of suspension should state the grounds and reasons for suspension. An employer should make sure that he conduct the disciplinary process within the time limit set in the model code or otherwise the suspension may become unlawful and the Employee can challenge the suspension.

PENALTIES

Section 7 of the Model Code provides guidelines on imposition of penalties on employees found guilty of any offense in a Disciplinary Proceedings. It is precise and states as follows:

(1) In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should only be taken when the said earlier steps have proved ineffective. It therefore follows that dismissal can only be resorted to in graver offenses.

(2) As far as is possible similar offences committed in similar circumstances should be treated equitably through the award of similar penalties allowing for mitigating and aggravating circumstances.

(3) The dismissal penalty to be imposed for an offence in section 4 is not obligatory but is meant as a guide to employers and an employer may, at his or her discretion apply a lesser penalty for example, a written warning. It means that even where an offense is grave enough to attact a penalty of dismissal an Employer still can exercise discretion and show leniency on the Employee by imposing a lessor penalty.

(4) For offences which do not warrant dismissal an employer may issue a verbal or written warning as the case may be.

It seems therefore that even in circumstances where an employer has convicted an employee a dismissal is not an outright course of action. The above provisions should be taken into consideration. Where an employer dismisses an Employee where a lessor penalty would have been appropriate or is apparently appropriate such a dismissal is unfair. 

It is imperative that guidance also be sought in Section 12 B (4) of the Labour Act  which states as follows:

 In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.

APPEALS

An employee has a right to Appeal where he is unsatisfied with the decision of a Disciplinary Committee. Section 8 of the Model Code provides for the Appeal process as follows:

(1) 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.

(2) Any internal appeal structures shall be limited to not more than two appeals authorities.

(3) A person or party who is aggrieved by a decision made in terms of section (2) may, in writing, note an appeal within seven working days with the Appeals Officer or Appeals Committee.

 (4) The Appeals Officer or Appeals Committee, as the case may be, may call for a formal hearing to hear the appeal or decide from the record submitted.

 (5) An Appeals Officer or Appeals Committee, as the case may be, shall have 14 working days from the date of receipt of the appeal, to dispose of the appeal.

 (6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

 (7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.

It is apparent that the internal Appeals process is limited to two Appeal Authorities. An Employee cannot be subjected to more than 2 Appeal Authorities and such conduct is unfair and constitute a gross irregularity. The Appeal should be noted within 7 days And disposed within 14 days and the provisions are peremptory. An Appeal can be made by either the Employer or the Employee as the case may be. 

If the internal Appeal Authorities have been exhausted the aggrieved party may approach a Labour Officer or an Employment Council Disgnated Agent within 7 days. The provision is also peremptory and 7 days is mandatory to note an Appeal. A party who fails to submit an Appeal within 7 days may have to  apply to be condoned before the Appeal is heard. 

From the Labour Officer or Designated Agent the matter can be appealed to the Labour Court and then the Supreme Court. In those cases the relevant legislation is the Labour Act and the Labour Court Rules 2006 as well as the Supreme Court Rules if Applicable.

OBJECTIVES OF THE CODE

Section 3 of the model code provides for the Objectives of the Code 

The objectives of the code shall, among other issues include the following—

(a) to provide machinery for careful investigation of offences before corrective/disciplinary action can be administered; or

(b) to ensure consistency and prompt action by the responsible/administering official or committee on issues concerning discipline; or

(c) to ensure equating an offence to the resultant corrective action allowing for mitigation or aggravating factors; or

(d) to provide guidelines on procedural and substantive fairness and justice in handling disciplinary matters at the workplace.

The objectives of the Code are to promote fair and safe labour standards for Employees and upon dismissal substantial fairness should prevail.

CONSTRUCTIVE DISMISSAL

In some circumstances an employee can be deemed unfairly dismissed even if he terminated his own employment contract commonly known as Constructive Dismissal. In terms of Section 12 B (3) (a) of the Act if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee he is deemed unfairly dismissed.

The concept of unfair dismissal also applies to employees on fixed term contracts. Section 12B (3) (b) (i) & (ii) states that an employee is deemed unfairly dismissed if, on termination of an employment contract of fixed duration, the employee - had a legitimate expectation of being re-engaged; and another person was engaged instead of the employee.

There are various things to consider in establishing that a breach of an essential element of an employment contract has been committed by the Employer that warrants an Employee to terminate the contract. The Supreme Court Judgement in Astra Holdings V Kahwa (SC97/04) sets the basis. In that case, it was stated that, “Constructive dismissal is claimable where an employer has committed conduct, which as a breach goes to the root of the contract of employment to constitute repudiation, and due to that conduct, the employee leaves employment.”

The Judge cited with approval the English case, Western Excavating v Sharp [1978]1 ALL ER 713 LORD DENNING MR at 717 d – f wherein Lord Denning said;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.   If he does so, then he terminates the contract by reason of the employer’s conduct.   He is constructively dismissed.   The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say he is leaving at the end of the notice.   But the conduct must in either case be sufficiently serious to entitle him to leave at once.   Moreover, he must make up his mind soon after the conduct of which he complains for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.   He will be regarded as having elected to affirm the contract.” 

It therefore follows that in order to establish constructive dismissal the following key points are paramount:

• The Employee terminates the contract

• The conduct committed by the employer as a breach goes to the root of the contract that means the conduct must be sufficiently serious for the employee to leave work instantly.

• There should be a nexus between the breach by the employer and the employee’s repudiation or termination of employment that means that the Employee leaves because of the Employer’s conduct.

• The Employee must leave employment instantly due to the employer’s conduct or else he loses his right to regard himself as dismissed.

Indicators of Breach by the Employer:

• Sexual Harassment

• Neglect of essential terms of contract such as non-payment of salaries, not providing work, etc.

• Cruelty

• Unilateral variation of Employment Contract

• Threatening an Employee with termination or resignation.

• Failing to exercise the duty to provide safe and healthy working conditions as provided for in the Labour Act

• Generally making it tough for an employee to fulfil their terms of the contract.

ULTIMATE

Under the Zimbabwean Law, reinstatement is the primary remedy for unfair dismissal. A claim for damages is a secondary option after reinstatement has failed. An Employee who elects for damages over reinstatement loses her right to claim damages for loss of employment but may be entitled to other entitlements such as back pay, benefits, etc. If it becomes necessary that damages have to be awarded an Employee has a duty to mitigate damages. There is no cap as to how much compensation an employee can be awarded. In terms of the Act a Labour Claim has to be brought within two years or else it prescribes. 

INTERPRETATION

Reference to Masculine also refer to the Feminine

The Act means Labour Act [Chapter 28:01]

NECC – National Employment Code of Conduct [SI 15 OF 2006]

MODEL CODE – NECC

AUTHOR: MOSES MUTUTU BACHELOR S DEGREE IN LAWS HONS [LLBS] 

Disclaimer: This post does not constitute Legal Advice and is posted for educative and guidance purposes only.