adminMatthias Ruziwa : H R Issues
In the matter between Diamond Mining Corporation v Peter Tafa and Others, judgement No SC 70/2015 the Supreme Court remarked; “not every termination of employment made outside a code of conduct is, in terms of the Act, unfair”.The respondents in this matter were employed by the appellant on 3 month contracts which were to expire on 30 September 2011. Before the expiry of the contracts they were relieved of their duties. They were paid their terminal benefits which included overtime, 2 weeks’ notice pay, cash in lieu of leave days and their salary for the month of September 2011. They acknowledged receipt of the said benefits by signing letters from the appellant in which were set out details of the payments made to them, inclusive of overtime calculated according to the rates set in the relevant Collective Bargaining Agreement for the Mining Industry. The letters were dated 30 September 2011.
At an arbitration hearing which took place on 2 December 2011, the Arbitrator’s terms of reference were: “To establish whether the employees were unfairly dismissed and to determine the remedy thereof”. On one hand, the respondents submitted before the Arbitrator that they were employed by the appellant as security guards on probationary contracts ‘sometime in February 2011’. The probationary contracts were to endure for 3 months. At the end of that period they were ‘surprised’ to be given 3 months’ contracts which they were ‘forced’ to sign instead of being conferred with permanent employment status. Their contracts were prematurely terminated in September 2011. They were aggrieved by the appellant’s conduct and approached a Labour Officer for redress. They now sought to be reinstated without loss of salary or benefits and submitted a schedule showing what was owing to each of them by the appellant.
On the other hand, the appellant submitted that the respondents were employed on 3 months’ contracts which, they admitted, were terminated before their expiry. However, the respondents were given adequate notice, as prescribed by law, and had been paid, in full, their salaries for the unexpired terms of the contracts as well as all benefits owed to them. The payments had been accepted, and signed for, by the respondents. There had been no unfair labour practice and the matter should be deemed closed.
The Arbitrator found that the respondents were not dismissed in terms of a code of conduct and for this reason: “One would say that the employees were unfairly dismissed. What is however interesting is that the contracts of the employees were terminated two weeks prior to the expiry of their contracts. The unexpired period of the employees’ contracts were (sic) paid by the respondent. The applicants accepted the terminal benefits and then complained later. Although in terms of the law the employees would be deemed to have been unfairly dismissed, the payment of two weeks’ salary as notice became a remedy in this matter since in any event the contracts were going to end after two weeks.”
Furthermore, he found that “There was an argument submitted by the employees that their initial contracts stipulated that they had to undergo a probationary period of three months and thereafter be deemed to be permanent upon successful completion of the contract. The initial contracts were not furnished in the hearing and even if this had been the case, by entering into a three months’ renewable contract, the employees waived whatever rights they had in the initial agreement. The fact that they signed for a three months contract implied that they agreed to whatever terms were availed to them.”
The Arbitrator concluded that “In short, the termination of the employees’ contracts was unfair and since they were paid for the unexpired period, they must only be paid back pays (sic) where applicable, overtime allowance, Night allowance and for the Public Holidays they worked.”
The appellant was aggrieved by the award. It appealed, unsuccessfully, to the Labour Court which Court upheld the Arbitrator’s finding that the respondents were not dismissed in terms of a Code of Conduct and were accordingly unfairly dismissed. The Labour court went on to calculate the overtime and other benefits due to the appellants and found that the respondents’ claims were fair.
It was contended on behalf of the appellant that the court a quo had erred in concluding that the respondents had been unfairly dismissed since the contracts were lawfully terminated. In any event, not only had the Arbitrator and the court a quo ignored the fact that the respondents had received their terminal benefits, but no evidence was led justifying the claims by the respondents, and the consequent award to them by the arbitrator, in respect of overtime, night allowance and public holidays.
Against respondents’ bald and unsubstantiated allegations of duress, was the appellant’s assertion that the contracts were of fixed duration (a fact accepted by the Arbitrator) and the respondents had been given due notice of termination as provided by s 12(4) (d) of the Labour Act (“the Act”) which reads:
(4) Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be—
(d) two weeks in the case of a contract for a period of three months or more but less than six months;
The Supreme Court remarked that the conclusion by the Arbitrator, upheld by the Labour Court, that the respondents were unfairly dismissed appears to stem from a misinterpretation of s12B of the Act which states;
“12B Dismissal
(1) Every employee has the right not to be unfairly dismissed.
(2) 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).” (Underlining is mine for emphasis)
The requirement for dismissal in terms of an employment code is subject to the provisions of subsection (3) which provides:
“(3) An employee is deemed to have been unfairly dismissed –
(a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;
(b) if, on termination of an employment contract of fixed duration, the employee –
(i)had a legitimate expectation of being re-engaged; and
(ii) another person was engaged instead of the employee.
This was a case of termination of a contract of fixed duration. The termination could only be deemed an unfair dismissal if it occurred in the circumstances described in subsection (3)(a) or (b). The requirement in (2) (a) that the dismissal be in terms of an employment code did not apply in this case and the respondents, not having alleged, or established, that the provisions of subsection (3) were applicable in their circumstances, consequently failed to establish that they were unfairly dismissed.
The Labour Court therefore erred in upholding the Arbitrator’s finding that the respondents were unfairly dismissed and the appeal was allowed with both the arbitrator`s award and the Labour Court`s judgement set aside.
Disclaimer: Opinions expressed herein are solely those of the author.
◆ Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe. You can contact Matthias at the following email address:: [email protected] /Whatsapp 0773 470 368
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