Legal Matters with Arthur Marara
What was your first reaction when you saw this headline? Unbelievable, what on earth, what?? These are some of the reactions that would be close. Well, this speaks to a real case that happened, and several more of people who were dismissed from their employment. The purpose of this column is to speak to issues that affect businesses and the people who work for businesses. This week I want to take you through the law that governs dismissal.
Dismissal is a form of termination of contract that comes after due process has been carried out in terms of Section 12B of the Labour Act [Chapter 28:01]. There is no scope for summary dismissal under this legal dispensation. In the previous articles I took time to explain how a disciplinary hearing is supposed to be conducted in order for it to be valid. There are penalties that can be imposed once an employee has been found guilty of misconduct.
The question to be asked is what are the considerations before a penalty is imposed. The employer had the common law right to discipline employees for acts of misconduct.
The pizza story
The employer in this case a leader in the fast food industry approached the Supreme Court on appeal against the judgment of the Labour Court setting aside the decision of the arbitrator by which she confirmed the dismissal of the employee from employment following a conviction for misconduct. The employee was convicted of conduct inconsistent with the fulfilment of the express or implied terms or conditions of his contract of employment contrary to the provisions of s4(a) of S.I. 15 of 2009. Section 4(a) is a codification of the employee’s duty common law duty of good faith.
The employer’s complaint against the employee was that, in the course of his employment as a pizza maker, had produced a pizza without having received the necessary docket authorising the production of the pizza. In terms of the code of conduct the employee’s conduct constituted a dismissible offence.
The disciplinary hearing committee and the arbitrator found that the misconduct by the respondent was of a serious nature going to the root of the relationship of employment and that it involved an element of dishonesty on the part of the employee.
The Labour Court disagreed with the arbitrator, and overturned the penalty of dismissal and substituted it with reinstatement. In doing so, it held that the arbitrator had not taken into consideration that the respondent was acting under pressure. It went on to say that the employer had not suffered any prejudice through the production of the pizza and that the pizza was worth only $4,00. It also said that the penalty should have been corrective rather than punitive.
On appeal, the Supreme Court, held that Labour Court seriously misdirected itself in coming to the conclusion it did. The value of the pizza would not change the fate of the employee in question. The reasoning of the court was the issue of prejudice was not relevant because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers. The finding that the pizza was only $4,00 was of no consequence.
The offence committed involved a betrayal of trust and confidence reposed in the employee by the employer thereby going to the root of the relationship between the employer and employee. The consideration is whether or not the misconduct of an employee goes to the root of the contract of employment.
This position was further confirmed by the Supreme Court in Mashonaland Turf Club v George Mutangadura SC.5/2012 where the court held that; “The record clearly shows, and the Court found, that the respondent committed serious acts of misconduct which went to the root of his contract of employment.
“The law is clear that in a situation such as this the employer is entitled to dismiss the employee. The fact that the respondent was singled out for disciplinary action becomes irrelevant once it is accepted that his misconduct went to the root of his employment contract.”
For long, there has been a tendency by presiding officers on appeal to interfere with decisions of employers on the penalty imposed. In Mashonaland Turf Club v George Mutangadura mentioned earlier, the Court held that, “In the exercise of their powers in terms of s 12B (4) of the Labour Act, the Labour Court and Courts must be reminded that that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it.
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 position of law is that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. The Court should not merely substituted its own discretion for that of the employer, without finding any recognisable misdirection on the part of the employer.
The pizza story is found in the Supreme Court decision of Innscor Africa (Pvt) Ltd V Letron Chimoto SC 6/2012.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email email@example.com