Tuesday, 26 January 2016


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

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