STANDARD CHARTERED BANK ZIMBABWE LTD v MATSIKA
1996 (1) ZLR 123 (S)
Division:Supreme Court, Harare
Judges:Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area:Appeal against determination of Labour Relations tribunal
Date:18 January & 8 February 1996
Judgment Number:S-23-96
Employment — contract — termination — application to labour relations officer to dismiss employee — employee already suspended pending application — grounds relied on by employer in application different from grounds on which employee suspended — whether grounds for application should be same as grounds for suspension
The appellant company employed the respondent as a bank manager. After some two years in his post, he was suspended, on full pay, after police investigations had been begun into allegations that travellers cheques had been fraudulently issued with his connivance. Over four months after his suspension, he was placed on remand on an allegation under the Prevention of Corruption Act [Chapter 9:16]. Shortly after that, the bank then told him that his suspension was to continue, but now without pay. A further six weeks later, the bank applied to a labour relations officer for an order terminating the respondent’s employment. The grounds for the application were that the respondent had committed an act inconsistent with the fulfilment of the express or implied conditions of his contract, in that, in recommending the grant of an overdraft to a client, the respondent had made incorrect representations, some deliberately, others through failure to verify the truth.
The labour relations officer granted the bank’s application, but the respondent appealed to a senior labour relations officer, who remitted the matter to another labour relations officer for further investigation. In the meantime, the respondent was acquitted of the criminal charges. The labour relations officer ordered the respondent’s reinstatement. His decision
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was upheld by a senior labour relations officer on appeal. The bank appealed to the Labour Relations Tribunal, which dismissed the bank’s appeal, on the ground that the reasons relied on by the bank in its application to the labour relations officer differed from those for which the respondent had been suspended without pay.
Held, that the common law principle — that an employer may defend a dismissal on any objective ground in existence, even if he was at the time unaware of it — was not relevant. The Regulations envisaged a substantive application for relief on defined grounds subjectively known to the employer and objectively proved to have existed. It would be incompetent for a labour relations officer to order the termination of employment on a ground that was only relied on or arose after the date of suspension and was different from either that which had motivated the suspension, together with the application made forthwith, or that upon which the application alone was based, where the employee had not been suspended.
Held, further, that by failing to make its application for the respondent’s dismissal “forthwith”, in the sense of “as soon as reasonably possible in the circumstances”, the suspension without pay was a nullity. The bank then had two choices. It could suspend the respondent again on the same ground or on another ground specified in the Regulations and forthwith apply on that ground for his dismissal. Alternatively, it could make an application on any specified ground, which need not necessarily be the same as the original ground for suspension, without re-suspending him. In either event, it was obliged to pay him his salary and other benefits from the date of the invalid suspension. But its failure to formally lift the invalid suspension and reinstate the respondent did not affect the bank’s right to make an application
GUMBO v AIR ZIMBABWE (PVT) LTD
2000 (2) ZLR 126 (H)
Division:High Court, Harare
Judges:Chatikobo J
Subject Area:Opposed application
Date:8 June & 2 August 2000
Judgment Number:HH-163-00
Employment – contract – termination – contract of fixed duration – employee engaged on probation – Ministerial approval for termination of contract not required – no need for employer to follow procedures provided in code of conduct
The applicant was employed by the respondent on probation. After the end of the probationary period (which had been extended) he was given twenty-four hours’ notice of termination. He brought the decision on review, arguing that Ministerial approval was required for the termination of the contract, alternatively, that the respondent should have taken the procedural steps required by the respondent’s Code of Conduct.
Held, that employment on probation creates a contract of fixed duration. As long as termination takes place when the probationary period expires or the salary for the period of probation is paid, Ministerial approval for termination of a probationary contract is not required, nor does the employer need to follow the procedures laid down in the Code of Conduct.
Held, further, that the fact that the contract was terminated several days after the end of the probation period did not impliedly confirm the contract. It was also quite clear that the respondent never contemplated giving the applicant a chance to prove his capabilities.
Cases cited:
Gould v Lewis 1913 SR 66
Kazembe v The Adult Literacy Organisation S-173-94
Lilford v Black 1943 SR 46
Machiya v BP Shell Marketing Svc (Pvt) Ltd 1997 (2) ZLR 473 (H)
Mbedzi v Deputy Registrar of the High Ct & Anor S-57-97
Muzondo v UZ 1981 ZLR 333 (G)
Ndamase v Fyfe-King NO 1939 EDL 259
Pan American World Airlines Inc v SA Fire & Accident Ins Co Ltd 1965 (3) SA 150 (A)
Min of Labour & Ors v PEN Tpt (Pvt) Ltd 1989 (1) ZLR 293 (S)
Legislation considered:
Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (SI 371 of 1985)
Labour Relations (Employment Codes of Conduct) Regulations, 1990 (SI 379 of 1990)
W Ncube, for the applicant
F Girach, for the respondent
Page 127 of 2000 (2) ZLR 126 (H)
CHATIKOBO J:The facts upon which this application is based can be summarised as follows:
1.On 25 March 1999, the applicant was offered employment by the respondent as General Manager, Administration. The appointment was with effect from 1 May 1999. He was expected to serve as a probationer for three months and during the period of probation the contract of employment was terminable by either party upon giving 24 hours’ notice.
2.When the applicant commenced employment the respondent airline was under the superintendency of an Acting Chief Executive. A substantive Chief Executive (Ticharwa Garabga) was only appointed in July 1999.
3.Soon after his appointment Garabga extended the applicant’s probationary period by some two months ending on 30 September 1999.
4.On 26 October 1999, Garabga advised the applicant in writing that he had decided not to confirm the applicant’s appointment. He gave the applicant 24 hours’ notice.
5.Having been aggrieved by Garabga’s refusal to confirm his appointment the applicant decided to bring the decision on review.
Four points were argued before me. I deal with them in the order in which they were taken.
The first point advanced was that the court has no power to review an employer’s discretionary power to decline to confirm a probationary employee’s appointment since such a power is purely contractual. The simple answer is that the termination of contracts of employment is governed not by contract but by the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 (SI 371 of 1985) (the termination regulations) and the Labour Relations (Employment Codes of Conduct) Regulations, 1990 (SI 379 of 1990). As such, all contracts of employment have an administrative element which makes them susceptible of review. See Machiya v BP Shell & Marketing Service (Pvt) Ltd 1997 (2) ZLR 473 (H).
The second ground of attack was that it was wrong for Garabga to make a unilateral decision to terminate the contract of employment without taking the procedural steps laid down in the respondent’s code of conduct, which applies to all employees of respondent including those on probation. What needs to be noted is that although clause 4 of the code of conduct stipulates that it applies to all employees including those on probation it is misleading to guide oneself by the provisions of the code alone. The applicability of the code to the applicant depends, in part, on s 2(l)(c) of the termination regulations which provides that:
“No employer shall summarily or otherwise terminate a contract of employment with an employer unless –
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...
(c)the employer was engaged for a period of fixed duration ... and the contract of employment is terminated on the expiry of such period.”
It admits of no doubt that employment on probation creates a contract of fixed duration. See Mbedzi v Deputy Registrar of the High Court & Anor S-57-97. When a person is engaged on a contract of fixed duration there is no requirement for obtaining Ministerial approval to terminate the contract of employment in terms of s 2(l)(a) of the termination regulations if the employee is allowed to serve the full period of the probation. Similarly and logically, where there is a registered code of conduct, there is no requirement that the employer must follow the procedure laid down in the code of conduct in order to terminate the contract of an employee who has been allowed to serve his full probation period. This self-evident construction of s 2(l)(c) of the termination regulations derives full support from the judgment in Min of Labour & Ors v PEN Transport (Pvt) Ltd 1989 (l) ZLR 293 (S) at 298D-F, where Gubbay JA (as he was then) said:
“In order to utilise the right to terminate under s 2(l)(c) of the Regulations the employer was obliged to ensure that the fixed duration period had effectively expired. It would have been proper to have informed the employee in advance that on 28 February 1987, his services were to be terminated and either have required him to work until that day or, if not, have paid his salary in full for the month. But notwithstanding any contractually agreed period of notice it was not permissible to terminate, in reliance thereon, before the end of the fixed period.
If during the currency of the fixed period the employer had good cause to believe that the employee was guilty of misconduct, its remedy lay in s 3(l) of the Regulations – to suspend him without pay and apply forthwith to a labour relations officer for an order terminating the contract of employment.”
I perceive this dictum, which I respectfully adopt, to correctly reflect the partial curtailment by the legislature of the employer’s common law right to terminate a probationer’s contract on notice without Ministerial approval during the currency of the probation period. For present purposes, one need only stress the obvious fact that there still remains a residual common law right to terminate a contract of fixed duration without Ministerial approval where there is no registered code of conduct or without having recourse to a registered code of conduct where there is one as long as the termination occurs either on the expiry of the period of probation or upon payment of the salary payable for such period of probation. Since the applicant’s contract was terminated some 26 days after the expiry of its stated duration the provisions of the respondent’s code of conduct do not apply.
In the words of Ebrahim JA in Kazembe v The Adult Literacy Organisation S-173-94:
“A period of probation by its very nature presupposes that during the period of probation
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the probationer is on trial. At the end of the period stipulated, if there is dissatisfaction by the person placing an individual on probation common sense dictates that he is entitled to elect on whether to continue to employ the probationer or not.
...
What is clear is that once his probationary period had ended and they were dissatisfied with his performance all they need have done is to have told him that his services were no longer needed and that would have been the end of the matter. There was no need for them to have embarked on the application to terminate his employment through the labour relations officer.”
Cases such as Muzondo v University of Zimbabwe 1981 ZLR 333 (G) and Ndamase v Fyfe-King NO 1939 EDL 259 are clearly distinguishable. In particular, Muzondo’s case was decided prior to the promulgation of the regulations and, in any event, it was concerned with a termination during the currency of the period of probation. Ndamase’s case also dealt with an employer’s right to terminate a contract of employment during the probationary period, a situation which in this country is now governed by the termination regulations.
Thirdly, and as already observed, the applicant’s contract was terminated some 26 days after the expiry of the probation period. Mr Ncube who appeared on behalf of the applicant argued valiantly that this delay in deciding whether or not to confirm the applicant’s contract of employment was tantamount to acquiescence or implied confirmation of the contract. In spite of the vigour with which it was made, this submission cannot succeed. In Kazembe supra, where the employee was advised of the termination nine days after the expiry of the probation period, Ebrahim JA said:
“It is true that they only notified him of their dissatisfaction with his work on 9 September 1991 some nine days after the conclusion of the probationary period but I do not see how this helps the applicant. It certainly cannot be implied that he had automatically been placed on permanent staff. That was not a term of his letter of appointment dated 31 May 1991. That letter does not intimate that at the end of the period of three months probation he would become a member of permanent staff unless advised to the contrary. The fact that they took time to notify him that they wished to extend his period of probation due to the unsatisfactory nature of his performance cannot be taken as an indication that he had automatically become a permanent member of staff. To hold otherwise, would be nonsensical.”
In order to import a tacit term into a contract, one must first examine the express terms of the contract. In this regard, I cannot do better than refer to the oft quoted dictum of Rumpff JA in Pan American World Airways Inc v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A) at 175C:
“When dealing with the problem of an implied term the first enquiry is, of course, whether, regard being had to the express terms of the agreement, there is any room for importing the alleged implied term.”
Regard being had to the express terms of the letter of appointment dated 25
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March 1999, there is no room for importing an implied term that the inaction of the respondent for 26 days amounted to confirmation of the appointment.
Finally, the best that can be said for the applicant is that in certain cases akin to the present there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period without agreeing new terms there is a tacit relocation of the expired contract on the same terms and for the same duration. In other words, all things being equal, it could be said that on 1 October 1999, the applicant commenced a new probationary period. See Gould v Lewis 1913 SR 66 at 69. However, this presumption does not operate when it is clear that one of the parties has no intention of continuing on the terms of the expired contract. See Lilford v Black 1943 SR 46 at 47, where Blakeway J said:
“The renewal of a lease or of a contract for services to be performed can take place either by express agreement or tacitly. If, after the expiration of the period provided for the duration of the contract, the parties continue their relationship without any fresh agreement the law presumes, in the absence of indications to the contrary, that they have agreed to enter upon a new lease on the same terms as the expired lease. But this presumption does not operate when it is clear that the parties or one of them does not intend to carry on with the contract on the old terms.”
It is quite clear in this case that the respondent never contemplated giving the applicant another chance to prove his capabilities. The correspondence annexed to the papers demonstrate the respondent’s dissatisfaction with the applicant’s performance as well as its wish to part ways with him. Nothing therefore, turns on the fact that the contract was terminated some 26 days after the expiration of its stated duration.
The application is dismissed with costs.
Mandizha Chitsunge & Co, applicant’s legal practitioners
Rainor Robinson, respondent’s legal practitioners
ZESA v BOPOTO
1997 (1) ZLR 126 (S)
Division:Supreme Court, Harare
Judges:Korsah JA, Ebrahim JA & Muchechetere JA
Subject Area:Civil appeal
Date:12 September 1996 & 21 January 1997
Judgment Number:S-267-96
Employment — contract — termination — dismissal — application to labour officer to dismiss employee — when must be made — effect of failure to make application timeously
Where an employer wishes to dismiss an employee, and there is no registered code of conduct governing the industry, undertaking or workplace, the employer may, in terms of s 3 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (SI 371 of 1985), suspend the employee without pay and forthwith apply to a labour relations officer for an order terminating the contract of employment. “Forthwith” means “as soon as reasonably practicable in the circumstances”. Failure to comply with this requirement may render the suspension inoperative.
The appellant company suspended the respondent employee and only applied to a labour relations officer four months later. The labour relations officer granted the application and the respondent appealed to the Labour Relations Tribunal. The Tribunal allowed the appeal, but did not direct reinstatement. Instead, it gave the employer an opportunity to indicate whether it would be practicable for it to comply with an order for reinstatement and if not whether it would be prepared to consider compensation. The employer said it was not prepared to reinstate the employee, whereupon the Tribunal ordered reinstatement.
Held, that the delay was intolerable and the Tribunal should have taken the point and declared the suspension to be inoperative.
Held, further, that failure by the labour relations officer to comply with the
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requirements of the Regulations amounted to an irregularity which was a point of law which could be raised at any time, even on appeal.