Labour Cases of Interest

20/06/2017| Brenald Chinyowa| 148 Comments

Contract of employment:

Mohamed Fathi v Highlanders FC court held that a contract is a complete and written document binding on both parties and none of the parties can without leading evidence now seek to modify the contract.

In the case of Air Zimbabwe v Zendera, meal allowances were part of the conditions of employment for flight attendants and pilots. Having agreed with pilots to reduce the allowances, the employer then unilaterally reduced them for flight attendants as well, even though these were represented by a different body. The court held that a contract in place cannot be unilaterally changed.

Duties of the employer:

In Fisher et al v Air Zimbabwe, the courts did recognise that where a person has been employed to do certain work and is later or thereafter made to perform work of lower grade or meaningless work without demotion, in such circumstance that treatment amounts to constructive dismissal.

-provide work as expressed, failure of which may amount to constructive dismissal. In Fisher et al v Air Zimbabwe, the courts did recognise that where a person has been employed to do certain work and is later or thereafter made to perform work of lower grade or meaningless work without demotion, in such circumstance that treatment amounts to constructive dismissal.

-pay the agreed wage or salary (in legal tender) and benefits in the agreed period. In Tel One v Nyambirai et al (2004), failure to pay contract workers the minimum wages stipulated in the CBA was held to be an unfair labour practice. Remuneration is broader than wages. It includes wages plus allowances, bonuses and other benefits that the employee receives.

-comply with statutory duties/obligations e.g. leave provisions, hours of work

-to act in good faith and respect the employee’s dignity.

– to provide a safe working environment (as read with factories & works Act, NSSA Act, HIV/AIDS SI and Pneumoconiosis Act).In the case of Mushaya v Glens Corporation (1992), the court rejected the dismissal of a long distance driver for causing an accident, when he had been compelled to drive when he was exhausted. The employer is held liable for acts resulting in harm from employees. In the case of Mpande v Forbes and Thompson Byo Pvt Ltd (1980), of Mpande v Forbes and Thompson Byo Pvt Ltd (1980), a miner was paralysed from the neck downwards in a work accident. The court rejected a claim for additional compensation under occupational health legislation on the basis that the employee had purportedly contributed to the accident by not taking sufficient precautions.

Termination:

In Kadada v City of Harare, an attempt by the worker to withdraw a notice that had been properly tendered was rejected by the court. In the case of Muzengi v Standard Bank (SC129/2001), it was held that resignation constitutes a final act of termination by an employee, the effects of which he cannot avoid without the permission of the employer. In Riva v NSSA, the court ruled that notice, once given is final and can only be withdrawn by the consent of the employer. It was further stated that an employer is not entitled to refuse to accept the notice of resignation and decline to act on it.

ZCTU v Makonese, the court held that for an order to be lawful it must meet the following requirements (be given by the employer; be capable of being carried out; for the advancement of employer’s business; closely related to employee’s duties; not a wrongful act (be legal); employee must refuse to carry out order and actually not carry it out). Also refer to the case of Zupco v Mabhande & Mawire (driving instructors).

Constructive dismissal:

case of Alderdorf v Outspam Int. Ltd, the court ruled that where an employee could reasonably have lodged a grievance regarding the cause of his/her unhappiness and failed to do so before resigning, it is hard to persuade the court or arbitrator that there was no option except to resign. The court further stated that the tone of the resignation letter should show a frustrated worker.

CB:

the case of Old Mutual v OM Workers Committee, where the employer withdrew from the CB process as a settlement could not be reached and waited for the NEC award. The court ruled that the company was obliged to negotiate to settlement or deadlock. A party thus, cannot unilaterally abandon a CBA in motion before reaching its finality.

CJ Action:

First Mutual Life v Muzivi (SC62/2003), employees at FML, including Muzivi decided to form a managerial WC. To hinder this move, the company regraded the employees concerned to positions openly non management. This action effectively dissolved the committee. A strike followed and Muzivi was dismissed for participating in an illegal strike as deemed by the employer. The court held that the strike was lawful as it was in response to an immediate threat to the existence of the WC.

Moyo v Central African Batteries-employees gave 14 days notification of an intention to go on strike. Upon the expiry of those 14 days, they did not go on strike, rather went 3 months later, arguing that they had served the employer with the said notice. The court found that it was unacceptable to rely on this notice, as the delay of 3 months was unreasonable and there was no evidence of using it 3 months later, as basis for a strike.

NRZ v Railway Artisans Union. Employees of NRZ, of the above union, embarked on an illegal strike. During the time the employees were on strike they were not paid and the Union on their behalf argued that they should have been. The court held that, in common law terms, if you do not work, then you do not get paid.