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Labour Matters Davies Ndumiso Sibanda
MANY employment codes of conduct have provisions that override common law provisions resulting in disciplinary authorities struggling with what to do with employees who commit misconduct that goes to the root of the relationship which is dismissible at common law but not dismissible in terms of an in-house or NEC code of conduct. This challenge was settled by the Supreme Court in the matter DHL International (Pvt) LTD vs Tinofireyi SC 165/11. The brief facts of the matter are that Tinofireyi was charged and found guilty of indiscipline and was dismissed.
He appealed to the general manager and managing director without success. He then approached the Labour Court where he argued that the offence of refusing to come to work on a specified day attracted a final warning in terms of the code of conduct. The Labour Court agreed with Tinofireyi and ordered his reinstatement. The employer then appealed to the Supreme Court.
The Supreme Court had to determine whether, “the provisions of a code of conduct can override, and thereafter alter, the common law principles governing the employer’s right to dismiss an employee for misconduct that goes to the root of the employment contract”.
The court found that a code of conduct cannot alter or abrogate a principle of common law and it does not matter that the code of conduct is a product of agreement. The judge went on to look at the relevant section of the Labour Act and accordingly supported the reasoning of the Supreme Court.
This judgment puts pressure on those negotiating codes of conduct to be alive to the fact that as they craft the offences sections of the code of conduct they must be alive to the fact that they cannot tamper with common law positions unless the Labour Act expressly alters the common law position.
For administrators of codes of conduct it means that where codes of conduct position is inconsistent with common law the penalty given in code of conduct can be ignored and parties follow the common law position.
For example, where the code of conduct gives the penalty for insubordination as a final warning, the employer may choose to ignore the penalty given in the code of conduct and dismiss the employee as long as the employer can prove that the insubordination goes to the root of the relationship.
In conclusion, employers taking this route will need to get proper training and guidance as this judgment does not give the employer a blank cheque to abandon prescribed penalties in the code, each case will be dealt with as appropriate guide by facts available and desire to uphold fairness.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235
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