admin
Trust Maanda
Post Correspondent
WHERE an employee is dismissed from employment, he or she should return any company property in his or her possession that the employer would have allocated to him or her during the employment relationship.
Similarly, a former employee who was allocated company accommodation by the employer by virtue of his or her employment, but has lost that employment, is not entitled to resist eviction by his or her former employer.
If the former employee refuses to return the company property, the former employer is entitled to bring an action called rei vindicatio against the former employee.
That action is available to an owner of property who seeks to recover his or her property from a person in possession of it without his or her consent. An owner cannot be deprived of his or her property against his or her will.
He or she is entitled to recover it from anyone in possession of it without his or her consent.
In order to succeed, he or she has to merely allege that they are the owner of the property and that it was in the possession of the former employee at the time of commencement of the legal proceedings.
The employer has to allege that the lawful possession at some earlier date by the former employee has come to an end due to termination of the employment relationship.
Where employment, the basis of which possession was once lawful, has terminated, the former employee has no right of retention of the property of the former employer.
One case in which an employee was ordered to return company vehicle is the case of Nyahora V CFI Holdings Private Limited SC 81/14.
This case deals with the question often raised about whether an employee whose contract of employment has been terminated, and who has appealed to the Labour Court against that termination, is entitled, while waiting for the resolution of the appeal, to retain a motor vehicle allocated to him for the performance of his duties during the course of his employment.
In that case, Mr Nyahora who was employed by the company,was suspended without pay and benefits, pending disciplinary proceedings to be brought against him.
He was ordered to return to the company vehicle, a BMW X5 allocated to him for use in the performance of his duties as the company’s employee.
He refused to do so, and an additional charge of wilful disobedience to a lawful order was preferred against him.
The disciplinary authority found him guilty of misconduct and dismissed him from employment.
This decision was communicated to the him through a letter.
In the same letter, Mr Nyahora was directed to surrender the vehicle to the company on a certain date, failing which action would be taken to obtain recovery thereof.
Mr Nyahora did not positively respond, and the company successfully filed an urgent application in the High Court for an order of return of the vehicle.
The order was granted.
The order directed him to surrender possession of and to return to applicant the motor vehicle upon service of the order failing which the Deputy Sheriff was authorised to take all necessary steps to recover the said motor vehicle from Mr Nyahora or any person whomsoever was in possession thereof.
Mr Nyahora appealed to the Labour Court against his dismissal by the disciplinary authority of the employer and further appealed to the Supreme Court against the whole judgment of the High Court which had ordered him to return the vehicle to the former employer.
The Supreme Court decided that as long as he was dismissed, the former employer had a right to have its vehicle back in its possession.
It did not matter that the former employee had filed an appeal against the decision to dismiss him.
The appeal to the Labour Court did not reinstate his right to possess the vehicle.
The court said employers deserve the protection of the law from employees who take the law into their own hands.
Another case is of Lafarge Cement (Zimbabwe) Limited Versus Mugove Chatizembwa HH413/18, where it was held that a former employee who has lost employment has no right to continue occupying the premises of the former employer allocated to him or her by virtue of employment or as a condition of employment even where he or she is challenging the termination of the employment contract.
Once the employment contract terminates, the right of the employee to retain or occupy company property ceases.
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 +263 772432646.
Online Reporter