YOU CANT JUST HIRE AND FIRE
By Brenald
Chinyowa
The maxim audi alteram partem
expresses a flexible tenet of natural justice that has resounded through the
ages. One is reminded that even God sought and heard Adam’s defence before
banishing him from the Garden of Eden.
In
my previous article I talked about the local legal framework that governs the
termination process which include the Labour Act chapter 28:01 (Sec 12B & C
and 101 (9)) also the SI 15 of 2002 which happen to be the national code and
the collective bargaining agreements which are crafted at industrial level
through the NECs and changed from time to time when necessary by the concerned
parties. There are also several ways of terminating employment contracts that
are legally permissible in the Zimbabwean Labour laws which include (a) death
of the employee (b) liquidation of the organisation (c) retrenchment (section
12C) of our labour Act (d) dismissal section 12B and in line with section 101
(e) expiry of a fixed term contract (f) completion of business project (g)
supervening impossibilities (f) incapacity to perform the agreed tasks (g)
retirement.
However it must be in the cognisance of every
player in the labour industry that a competent workforce can be used to
recuperate financial invincibility. In light of that, l recommend that
retrenchment must be the last option. Rather, employer’s should craft
performance or productivity based contracts.
Taking
a leap in the international community there is the ILO Convention
on the Termination
of Employment at
the Initiative of
the Employer, 1982
(C 158) and ILO
Recommendation on the Termination of Employment at the Initiative of the
Employer, 1982 (R 166) provide the essential elements, namely:
♦ All
dismissals must be
substantively and procedurally
valid, with a
valid reason given
for the dismissal ‘
connected with the
capacity or conduct of the worker or
based on the
operational requirements of the undertaking, establishment or
service." That is no employer should terminate the employment contract Willy
nilly without a solid reason. Also leaning from in the case of MAKAYA v PAYLESS
SUPERMARKET (PTY) LTD 2007 (1) BLR 521 (IC) Gaborone (Botswana) Case No: IC 737
of 2005. The applicant had been dismissed for not recording his disposing of
half a scone, according to company policy. He had also been charged with
'damage caused wilfully or by gross negligence to moveable or immoveable
property'. No evidence was presented at a disciplinary hearing other than that
relating to one half scone. He was found guilty by the disciplinary hearing,
which was chaired by the store manager, who also investigated the matter and
instituted the charges against the applicant. The applicant was summarily
dismissed. From the minutes of the disciplinary hearing, it was evident that
the respondent did not consider an alternative to dismissal, but applied a
rigid policy to stamp out all shrinkage. An internal appeal against the
dismissal was refused, where after the applicant approached the court and it
was held against the employer, that the applicant's dismissal was substantively
unfair.
The
decision was arrived on the following grounds, “An employee can only be
dismissed if the employer has a valid reason for doing so. To comply with the
valid reason test an employer must be satisfied, judged objectively, that the
misconduct, with which the employee is charged, especially misconduct of which
dishonesty is an element, has in fact been committed and that there is
sufficient proof that the said misconduct had in fact been committed by the
employee so charged, except in a case where the employee pleads guilty to the
charge(s). In such cases the employer need only lead sufficient evidence for
him to decide on an appropriate sanction. It is not for the employee to prove
his innocence but the onus is on the
employer to prove the employee's guilt.
If
an employee is dismissed at a disciplinary hearing, that then terminates the
contract of employment. If an appeal is lodged, it does not reinstate the
employee pending the hearing of the appeal. If the appeal is successful, the
employee is reinstated retrospectively. If not, the date of dismissal is the
date on which the original dismissal occurred as leant and with consultation
from the cases of Anglo American Farms t/a Boschendal Restaurant v
Komjwayo (1992) 13 ILJ 573 (LAC) and Nkomo v Pick 'n Pay Retailers
(1989) 10 ILJ 937 (IC)
♦ Certain reasons are inherently invalid or
automatically unfair including reasons
connected to: the worker's union
membership or participation in union activities when outside working hours; the
worker having acted in his or her capacity as a workers’ representatives; the worker
lawfully filing of a complaint against
an employer; the worker being absent from work during maternity leave and the
race, colour, sex, marital status,
family responsibilities, pregnancy, religion,
political opinion, national
extraction or social origin of the worker.
♦ There is
procedural unfairness, whereby an employee is denied an fair opportunity to
defend themselves before any dismissal. Also as leant in Taylor v Minister
of Education & Anor 1996 (2) ZLR 772 GUBBAY CJ stated at p 780A-C: “The
maxim audi alteram partem expresses a flexible tenet of natural
justice that has resounded through the ages. One is reminded that even God
sought and heard Adam’s defence before banishing him from the Garden of Eden.
Yet the proper limits of the principle are not precisely defined. In
traditional formulation it prescribes that when a statute empowers a public
official or body to give a decision which prejudicially affects a person in his
liberty or property or existing rights, he or she has a right to be heard in
the ordinary course before the decision is taken. Also See Metsola v Chairman,
Public Service Commission & Anor 1989 (3) ZLR 147 (S) and In an ancient
case (1722), The King v Chancellor, University of Cambridge, where
Justice Eyre remarked: "The laws of
God and man both have given the party an opportunity to make his defence, if he
has any.... Even God himself did not pass sentence upon Adam before he was
called upon to make his defence."
Therefore
employers should be very careful when dismissing an employee inspite of the
misconduct or reason behind the dismissal a fair opportunity and channel to
enable the employee to be heard should be created. In practise of this to be
safe as an employer and prevent losing money over emerging cases after the
dismissal, it must be in the cognisance of the employer that justice must not
only be done, but it must be seen to be done.
Constructive
dismissal is another extension of no fault termination which is defined on
Section 12B (3) (a) of the Labour Act, Chapter 28:01 which consider
constructive dismissal to have taken place “if the employee terminated the
contract of employment with or without notice because the employer made
continued employment intolerable”. Isaac Mazanhi a Regional Labour analyst
defined it as, ‘any action on the part of the employer which renders the
continuation of the employment relationship unbearable for the employee — to
such an extent that the employee is left with no other option but to resign.
The employer does not actually dismiss the employee, but the employer’s conduct
must be such that no reasonable employee can be expected to put up with it.’
In the
United States, constructive dismissal has differing meanings depending on the
jurisdiction. In California, the California Supreme Court defines
constructive dismissal as follows: "In order to establish a constructive
discharge, an employee must plead and prove, by the usual preponderance of the
evidence standard, that the employer either intentionally created or knowingly
permitted working conditions that were so intolerable or aggravated at the time
of the employee's resignation that a reasonable employer would realize that a
reasonable person in the employee's position would be compelled to resign
Now
taking a leap in case law
“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…” (Western Excavating v Sharp [1978]
ACC ER 713 per Lord Denning and quoted by Malaba JA (as he then was) in Astra
Holdings (Private) Limited v Peggy Kahwa SC 97/04).
Efforts
should be made by labour officials, workers' representatives and organisations
of workers to ensure that workers are fully informed of the possibilities of
appeal at their disposal, after termination of the employment contract. Also during the period of notice referred to in Article 11 of the
Termination of Employment Convention, 1982, the worker should, for the purpose
of seeking other employment, be entitled to a reasonable amount of time off
without loss of pay, taken at times that are convenient to both parties.
A
worker whose employment has been terminated should be entitled to receive, on
request, a certificate from the employer specifying only the dates of his
engagement and termination of his employment and the type or types of work on
which he was employed; nevertheless, and at the request of the worker, an
evaluation of his conduct and performance may be given in this certificate or
in a separate certificate
Read more of my articles on The Sunday Mail website
(www.sundaymail.co.zw) as I look into Constructive dismissal and the new
section substituted for section 12C of Cap. 28:01 where the principal Act is
amended by the repeal of section 12C.
Brenald Chinyowa contributes weekly on www.sundaymail.co.zw and writes in his personal capacity. Feedback
email chinyowab@gmail.com (0777
897 586). Blog: profbrenald.blogspot.com
