Introduction
Dismissal of an employee is legally provided for within the framework of Zimbabwean legislation. Dismissal occurs when the employer terminates the contract, either with or without giving notice, when a fixed term contract ends and is not renewed or when the employee leaves, with or without giving notice, in circumstances in which they are entitled to do so because of the employer’s conduct which is commonly known as constructive dismissal. A dismissal will normally be ‘fair’ provided the employer has acted in terms of established legal provisions and has ‘reasonably’ carried out the dismissal. When an employee is dismissed, they often claim ‘unfair’ dismissal. Under the provisions of Section 12B of the Labour Act, every employee has the right not to be unfairly dismissed and an employee is unfairly dismissed— (a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or (b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9). In this article, we shall attempt simplify the relevant use of employment codes of conduct in dismissing an employee from employment.
Background
By definition, a code of conduct is a set of rules of conduct, procedure, values and ethical principles which is used to govern the workplace. Having a code of conduct in a workplace is key to provide staff with clear standards and expectations of how to conduct themselves at the workplace. A code of conduct is the most common policy within an organization. This policy lays out the company’s principles, standards, and the moral and ethical expectations that employees and third parties are held to as they interact with the organization. A code of conduct is an integral part of compliance efforts as it provides documentation that an employee or third party has violated company policy if illegal activity arises. The code of conduct reviews the organization’s mission and values and ties these ideals to professional behavior standards. In many workplaces, codes of conduct become benchmarks of performance.
In 1985, the dismissal of employees was regulated by the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (SI 371/1985). These regulations were repealed and substituted by the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations SI 130 of 2003 which were subsequently repealed and substituted on 27 January 2006 by the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006. In 1990, Zimbabwe experienced the birth of Labour Relations (Employment Codes of Conduct) SI 379 of 1990 as amended by SI 56/ 1992 which gave provisions for Works Councils to apply for the registration of codes which if registered by the Ministry of Labour would become binding in respect of that workplace undertaking or industry. This then meant that if you have a registered code, SI 371/85 would not apply.
The law requires that the following requirements be envisaged in an employment code of conduct;
(a) the disciplinary rules to be observed in the undertaking, industry or workplace concerned, including the precise definition of those acts or omissions that constitute misconduct;
(b) the procedures to be followed in the case of any breach of the employment code;
(c) the penalties for any breach of the employment code, which may include oral or written warnings, fines, reductions in pay for a specified period, suspension with or without pay or on reduced pay, demotion and dismissal from employment;
(d) the person, committee or authority that shall be responsible for implementing and enforcing the rules, procedures and penalties of the employment code;
(e) the notification to any person who is alleged to have breached the employment code that proceedings are to be commenced against him in respect of the alleged breach;
(f) the right of a person referred to in paragraph (e) to be heard by the appropriate person, committee or authority referred to in paragraph (d) before any decision in his case is made;
(g) a written record or summary to be made of any proceedings or decisions taken in terms of the employment code, which record or summary shall be made at the time such proceedings and decisions are taken
Current Legislation on Codes of Conduct
Section 101(1) of the Labour Act provides that “an employment council or, subject to subsections (1a), (1b) and (1c), a works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of the industry, undertaking or workplace to which it relates. The following subsections of Section 101 are key in understanding applicability of works council codes and employment council codes of conduct.
(1a) Where an employment council has registered a code governing employers and employees represented by it, no works council may apply for the registration of a code in respect of any industry, undertaking or workplace represented by the employment council unless it first refers the code to the employment council for its approval.
(1b) Where a code is registered by a works council in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the works council, unless the works council refers it to the employment council for approval.
(1c) Where an employment council refuses to approve a code made by a works council in terms of subsection (1a) or (1b), the works council may refer the matter to a labour officer, and the determination of the labour officer on the matter shall be final unless the parties agree to refer it to voluntary arbitration.
From a closer reading of the above provisions, its is clear that an employer can use its own works council registered code of conduct subject to the fact that it must first have such a code of conduct approved by the relevant National Employment Council. The rational of the legislature is mainly to do with issues of uniformity between workplace codes of conduct and NEC codes of conduct. In essence, whereas NEC codes provides for general rules that should bind employees in the industry, Workplace Codes provides for flexibility by way of accommodating the company`s peculiar circumstances. Close attention needs to be paid to Section 101(1b) See ALBERT JAVANGWE v VORTIGEN INVESTMENTS PRIVATE LIMITED T/A CPL, SC 49/20. In April 2017, A Javangwe (appellant) who was employed by the respondent as a journeyman printer was charged with misconduct for unsatisfactory performance of his duties. He was charged in terms of the respondent’s employment code of conduct hereinafter referred to as the (CPL Code). After disciplinary proceedings, the appellant was found guilty and dismissed from employment. Aggrieved by that decision, he appealed to the Appeal’s Officer, who dismissed his appeal. After the unsuccessful internal appeal the appellant applied to the court a quo for the review of that decision praying for the reversal of his conviction and dismissal from employment. He alleged that the proceedings a quo were tainted by irregularity as the CPL code which was used had not been referred to the NEC for ratification in terms of s 101 (1) (b) of the Labour Act [Chapter 28:01]. He further alleged that the CPL code was inconsistent with S.I. 175/12, the NEC Code. Had it not been for an exemption clause in the NEC`s code of conduct which stated; “The code shall not apply to employees with registered company codes of conduct already in use at the time of registration of the industry code of conduct”, the appellant should have won the case.
How to apply relevant codes of conduct in dismissing employees
As pointed out above, Zimbabwean legislation provides for three 3 types of code of conducts namely:
- Labour (National Employment Code of Conduct) Regulations, 2006 (SI 15 of 2006)
- National employment council code of conduct (Industry code) and
- Works council code of conduct (company code)
a) Labour (National Employment Code of Conduct) Regulations, 2006 (SI 15 of 2006)
The National Employment Code of Conduct also referred to as the model code made in terms of section 101(9) in section 12B of the Labour Act applies in the following situations;
- Where there is no industry code of conduct and works council code of conduct
- Where there is a works council code whose scope does not cover managerial employees
- Where there is an industry code but there is no works council code which deals with employees not covered by the scope of an NEC collective bargaining agreement
b) National employment council code of conduct (Industry code)
An industry code of conduct applies where there is no works council code approved by the National Employment Council and this code does not at all apply to managerial employees.
NB For NEC Engineering, iron and steel industry code of conduct is SI 107/2022
c) Works council code of conduct
Once registered by the National Employment Council and the Ministry of Public Service, Labour and Social Welfare, this code applies to employees at the workplace depending on the scope of coverage. Some workplace codes covers both managerial and non – managerial employees whereas some only cater for non – managerial employees. Where managerial employees are not found within the scope of a workplace code of conduct, the provisions of SI 15/2006 prevails.
Importance of adhering with codes of conduct
Many employers conduct disciplinary hearings in a haphazard manner wrongly believing following code of conduct procedures is not important. While the employer has the right to discipline employees, that right is regulated as it can only be exercised within the confines of the appropriate code of conduct. Employers must therefore follow a disciplinary process or dismissal procedure for a dismissal to be ‘fair’. Usually, at least three stages in the disciplinary process must be observed as follows;
- The employee should be informed in writing of the alleged offence and be given reasonable time to prepare for his or her defence.
- The employee should be given an opportunity to be heard. Legally, the employee is allowed to be represented at the hearing and should be accorded the opportunity to cross – examine witnesses and
- The employee should have the opportunity to appeal against any verdict.
In Stutterfords Removals vs Nyakutsikwa SC 103/2002, the Supreme Court remarked that “Companies that have codes of conduct should follow the procedure according to those codes. An employee charged under a code of conduct should be informed of the actual provisions of the code under which his contract falls. That after all is the purpose of having these codes.”
Furthermore, it is important to note that an employer cannot choose the code of conduct to use when conducting disciplinary hearings, except the one which is applicable. In Chikomba Rural District Council vs Pasipanodya SC 26/12, the Supreme court held that where there is a registered code of conduct no other code can be used. Where a wrong code of conduct has been used, the employer has no choice but to abandon the entire disciplinary process and reinstate the employee without loss of pay and benefits. This creates unnecessary costs due to flouted disciplinary proceedings.
Conclusively, it is worth mentioning and emphasising that unfair dismissal of an employee is prescribed under the Zimbabwean Labour laws and punishable by either reinstatement or payment of damages in lieu of reinstatement in favour of the aggrieved or prejudiced employee hence the need to strictly follow procedures outlined in the applicable code of conduct at all times.1
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3 Comments
Thanks
Well articulated, we want more of this.
Thank you for this