ANALYSIS: You can’t 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 [Section 12B and C and 101 (9)] and Statutory Instrument 15 of 2002, which happen to be the national code and the collective bargaining agreements crafted at industrial level through the NECs and changed when necessary by the concerned parties.
There are several ways of legally terminating employment contracts in Zimbabwean labour law, which include death of the employee, liquidation of the organisation, retrenchment, dismissal, expiry of a fixed-term contract, completion of business project, supervening impossibilities, incapacity to perform and retirement.
It is my view that retrenchment must be the last option. Rather, an employer should craft a performance or productivity-based contract.
The International Labour Organisation Convention on the Termination of Employment at the Initiative of the Employer, 1982 (C 158) and Recommendation on the Termination of Employment at the Initiative of the Employer, 1982 (R 166) provide the essential elements.
All dismissals must be substantively and procedurally valid, with reasons 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.
No employer should terminate the employment contract willy-nilly.
Learning from Makaya vs Payless Supermarket (IC 737 of 2005), the applicant had been dismissed for not recording his disposing off 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 a 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.
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 at which the original dismissal occurred
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.
To be safe as an employer and prevent losing money over emerging cases after the dismissal, ensure 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 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 realise that a reasonable person in the employee’s position would be compelled to resign”.
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.