Your queries answered

longer favourable or that I was being victimised or ill-treated?
A: Yes, one can tender resignation if the employer has made life so difficult for an employee and still approach the Courts for redress based on unfair or constructive dismissal.
The Act provides for this, section 12B (3) (a) where it’s stated that “an employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee”.
In Volume 16(1b) of Halsbury’s Laws of England, (2005, 4th Ed), page 91, the authors use these words: “an employee who terminates the contract of employment with or without notice may still claim to have been dismissed if the circumstances are such that he is entitled to terminate it without notice by reason of the employer’s conduct.
Q: I have been suspended by my employer without pay and can I look for work or alternative employment as I need to feed my family?
A: The question of whether one should seek and accept employment offer while on suspension was dealt with by Honourable Chief Justice Chidyausiku in the matter between TEL-ONE (PRIVATE) LIMITED v KUYUMANI ZULU Judgment No. SC. 110/04, Civil Appeal No. 9/03. When one is on suspension you are still an employee whether that suspension is paid or not or was lawful or not. If you secure alternative employment, this technically means that you have repudiated or terminated your contract with the current employer.
This position was also confirmed in United Bottlers v. Charles Kaduya, Judgment No.SC 34/06; Civil Appeal No. 163/05. You can also see Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S), wherein GUBBAY JA (as he then was) stated at p 151 as follows: “Plainly the obligation of an employee who is placed under suspension to hold himself available to perform his duties if called upon to do so, is one which arises by operation of law.
It is of no consequence therefore that no provision in that regard is contained in the contract of service; and it is not necessary for the employer at the time of suspension to so inform the employee.”
Therefore one can seek but should not secure and accept employment while on suspension unless if you feel you no longer want to go back to the current employer or bound by the contract you entered with him or her before suspension.
Q: We have dismissed an employee through our internal hearing process after a theft case but he has since won his case at Criminal Courts and wants his job back. What do we do? Should we reinstate him?
A: According to labour consultant, George Makings, criminal proceedings and disciplinary (civil) proceedings are “two roads that never cross”.
An employee may be found not guilty by the criminal court but can still be charged and dismissed by the employer for the same misconduct in terms of company procedures as per registered Code of Conduct.
The standard of proof required in disciplinary (civil) cases is called “balance of probabilities” and that used in criminal cases is called “beyond reasonable doubt”. Balance of probabilities means that on the basis of evidence submitted, it is more likely than not that the employee is guilty.
To win you need to convince the hearing authority that your case is 51 percent likely to be true. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not.
If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.
In criminal cases we use beyond a reasonable doubt as a standard of proof. For a criminal defendant to be convicted of a crime, the prosecutor must prove her case to the point that the magistrates/judges have no reasonable doubts in their minds that the defendant did whatever he is charged with having done.
For more see Zesa v Dera (79/1998), Zimbabwe Financial Holdings v Mafunga, Olckers v Monviso Knitwear (Pvt) Ltd(1988) 9 ILJ 875 (IC) and Nyalunga v P P Webb Construction (1990) 11 ILJ 819 (IC).
Q: Can an employer revise the terms of the contract as and when he or she feels like doing, if the company is facing challenges?
A: No, a contract of employment is an agreement between two parties and no part has the power to make changes without consulting or agreeing with the other party. Changing contractual terms and conditions can be a complicated process and there are many issues that an employer must consider before doing so. Generally, changes to terms and conditions of employment cannot be made without prior consultation with the employee on the proposed changes, and the employee’s agreement obtained.
This is because of the very simple reason that a Contract of Employment constitutes an agreement between two people, and the one party to the agreement cannot change the terms of that agreement without the consent of the other party.
To do so would place the party making the change in breach of contract.
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