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Trust Maanda
Post Correspondent
GROSS incompetence or gross inefficiency are offences covered in Section 4(h) and (f) of the National Employment Code of Conduct Regulations of 2006 (Statutory Instrument 15 of 2006).
They are also contained in most employment codes of conduct.
It is an implied term of a contract of employment that an employee will perform his or her work with efficiency and competence.
Where an employee shows incompetence in the performance of their duties, that goes to the root of the employment contract.
Through gross incompetence and inefficiency, an employee may face disciplinary action and dismissal.
The terms of an employment contract, whether they are express or implied, form the basis on which an employee’s competence or efficiency are measured.
Failure by an employee to perform as agreed or assigned will see the employer taking action against the employee.
If the employee does not perform as expected in terms of the agreed and implied terms, including what is in the statute, policies and regulations, the employer can take disciplinary action against the employee.
If there is an internal code of conduct, that code of conduct is invoked.
If there is no internal code, then the code for the employment sector is applied.
If there is no code of conduct for the sector, the employer applies the Labour National Code.
Either gross incompetence or gross inefficiency can be detrimental to the employer against the employee.
The requirement is that it should be either gross incompetence or gross inefficiency.
For one to be guilty of misconduct, he or she has to be found to be either incompetent or inefficient.
An incompetent employee lacks the knowledge of what to do and how to do it.
An inefficient employee knows what to do and how to do it, but simply does not exact himself or herself in doing what he or she knows.
An inefficient employee may be competent in relation to having the necessary skill or ability to do his or her work, but does not do it efficiently due to dereliction of duty, laziness, carelessness, or even lack of personal drive.
He or she may not be thorough, does not attend to his or her work timeously or diligently or may have some other personal traits which make him or her unable to do his or her job efficiently.
In the case of Fraser Mutsaka Vs Bak Logistics (Pvt) Ltd SC 39/17, the court resorted to the dictionary meaning of the words incompetence and inefficient.
Incompetence is ‘the lack of skill or ability to do a job or a task as it should be done’.
Inefficient is ‘not doing a job well and not making the best use of time, money, energy, etcetera’, (see the Oxford Advanced Learner’s Dictionary).
The facts in the Frayser Mutsaka case are that in 2001, Mr Mutsaka was employed by Bak Logistics (Pvt) Ltd as a warehouse clerk in the Distribution Department.
He was later promoted to the position of Distribution and Transport Manager, and later to the post of Port Division Manager.
While in charge of the Port Division, his superior came to know that 40 containers had been received in May 2013, but had not been invoiced.
Mr Mutsaka got to know about the containers in September 2013, but they were not invoiced until January 2014.
When he was asked to submit a report on why the containers had not been invoiced, he acknowledged having received information about the containers and prepared a spreadsheet to make it easy for his subordinates to calculate storage charges for the containers.
However, he did nothing until January 2014.
Mr Mutsaka was charged with ‘gross incompetence or inefficiency in the performance of his duties’ in accordance with Section 4(f) of the Labour (National Employment Code of Conduct) Regulations, 2006 (SI 15 of 2006).
He was charged with failing to account for daily activities under his department, and for failure to put in place a system that tracks his subordinates’ work.
Mr Mutsaka was also charged with concealing information on the non-invoicing of the containers from September 2013 to January 2014, as well as failing to consult his superiors to get clarity on some issues.
The Supreme Court upheld his dismissal from employment
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
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