REPORTABLE (14)

Judgment No. SC 135/02

Civil Appeal No. 164/01

 

 

(1) LUKE CHIRASASA (2) UNITY NDLOVU

(3) TEMBA NCUBE v

 

(1) ROSELINE NHAMO N.O.

(2) FIDELITY LIFE ASSURANCE OF ZIMBABWE (PRIVATE) LIMITED

 

 

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA

HARARE, SEPTEMBER 12, 2002 & SEPTEMBER 11, 2003

 

 

L T Biti, for the appellants

 

S V Hwacha, for the respondents

 

MALABA JA: This is an appeal from a judgment of the High Court dated 14 June 2001, by which an application for an order setting aside, in review proceedings, a decision of the second respondent to terminate contracts of employment with the appellants was dismissed with costs. The ground upon which the decision had been brought on review was that it was unlawful because of the contravention of s 2(1)(a) of Statutory Instrument 371/85 (“the Regulations”) and breach of the audi alteram partem rule.

 

The facts placed before the court a quo are not in dispute. The second respondent is a private company (“the company”) incorporated in terms of the laws of Zimbabwe, carrying on the business of providing life assurance policies to members of the public. From its headquarters in Harare the company conducts its business operations through twelve branches situated in different parts of the country under the supervision of branch managers. The appellants were three of twelve branch managers engaged by the second respondent, under a contract of employment which provided in clause 13 that it was terminable by either side upon giving one month’s notice. The first respondent is the company’s human resources manager.

 

The duties of a branch manager, under his/her contract of service, included the recruitment of commission agents and supervising their work to ensure that their performance, as well as his/her own work, procured for the company as many insurance policies a month as possible. Branch managers were entitled to fixed monthly salaries regardless of the amount of work they and their commission agents would have done.

 

In 1998 the company started experiencing viability problems. In response senior management set up a team to investigate the cause thereof. The management report produced by the investigation team revealed that the branches had largely become unproductive. A job evaluation exercise carried out at the time disclosed that the branch manager’s job had wrongly been placed in grade 7 instead of grade 8 and over-valued.

 

The recommendations made to senior management were that the branch manager’s job should be downgraded; and that the remuneration for branch managers had to be performance related in order to enhance production. Instead of branch managers being paid fixed salaries regardless of how much work they would have done, they had to work according to production targets fixed by agreement with senior management. Their individual earnings were to be calculated on the basis of the extent to which they met the production targets.

 

To meet the operational requirements of the company, senior management was desirous of implementing the recommendations of the investigation team. Mindful of the fact that changes had to be made in the terms and conditions of employment of branch managers, the first respondent said senior management engaged branch managers in discussions over the proposed changes as early as April 1999.

 

The first respondent said that the principle by which senior management were guided in seeking to effect changes in the conditions of service of branch managers was that they should not suffer a reduction in what they were earning at the time but that those who worked harder be rewarded according to what they would have actually produced. In keeping with that principle, senior management created a “personal to holder” grade to enable the incumbent branch managers to retain as their basic salaries what they were earning on 16 March 2000 when their jobs were downgraded from grade 7 to grade 8.

 

On 20 June 2000 a meeting between senior management and branch managers was held to discuss the proposed changes in their conditions of service. Branch managers made their views known to senior management on the disadvantages of relating their remuneration structure to production. They argued that there were many factors beyond their control which could affect production, thereby causing them financial prejudice.

 

On 8 August 2000 the first respondent produced the first draft of the terms and conditions of the new contract the second respondent proposed to enter into with branch managers. It appears that the draft was not acceptable to all branch managers. The first appellant consulted a firm of legal practitioners, who advised him to reject the offer on the ground that the terms and conditions were inferior to those under which he was employed. The second and third appellants contacted a labour relations consultant who also advised them to reject the offer.

 

On 1 December 2000 a revised draft of the proposed contract of employment was presented to branch managers for individual acceptance or rejection. On 14 December 2000 the first appellant wrote to the first respondent asking for more time to consult his legal practitioners on the matter. He was given until 18 December 2000. In the meantime the second and third appellants contacted the labour relations consultant. All three appellants were again advised not to accept the offer.

 

Eight branch managers, however, accepted the terms and conditions of the contract of employment offered by the company. The ninth branch manager had initially rejected the offer but later changed his mind and accepted it.

 

On 19 December 2000 the first respondent wrote to the three appellants, advising them that the company could not enter into further negotiations with them over the terms and conditions of the proposed contract, contained in the draft of 1 December 2000. They were given up to 21 December 2000 to decide whether to accept or reject the offer. The three appellants refused to accept the offer.

 

By letter dated 21 December 2000, each appellant was given one calendar month’s notice of termination of his employment with the second respondent in terms of clause 13 of the original contract of employment. Review proceedings were instituted by the appellants in the High Court on 15 January 2001, challenging the lawfulness of the decision to terminate the contracts of employment on notice.

 

The appellants’ case was that the decision to terminate their contracts of employment was unlawful because:

 

“(1) No prior written approval of the Minister of Labour and Social Welfare (‘the Minister’) had been obtained in terms of section 2(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, SI 371/85 (the Regulations); OR

 

(2) If the second respondent could terminate the contract of employment on notice the decision was in breach of the principles of natural justice in that they had not been heard before the decision to give notice of termination was taken; OR

 

(3) The termination of the contracts of employment on notice without affording the appellants a hearing was in contravention of sections 18(1) and 18(9) of the Constitution (of Zimbabwe).”

 

The respondents’ case was that the obligation to obtain prior written approval of the Minister to terminate a contract of employment with an employee to whom provisions of a registered Code of Conduct applied was removed by s 1A of the Regulations inserted by the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, SI 377/90. They contended further that the decision to terminate the contracts of employment with the appellants was a contractual right, the exercise of which was not made subject, either by the express or the implied terms of the contract, to a right of the appellants to be heard.

 

The respondents said the audi alteram partem rule was not applicable to their decision. The decision was not a disciplinary one, as no allegations of misconduct were made against the appellants which would have forced them to hold an enquiry in terms of the Code of Conduct before terminating the contracts of employment.

 

On the third ground, the respondents averred that the provisions of ss 18(1) and 18(9) of the Constitution were irrelevant to the resolution of the questions raised by the appellants in the application.

 

I now deal with the first point. The question raised for determination is whether or not, upon a proper construction of s 1A of the Regulations, an employer could terminate a contract of employment on notice without obtaining the prior written approval of the Minister where there was in existence in the undertaking an employment Code of Conduct, the provisions of which applied to the employee, and no allegations of misconduct were made against him.

 

The Regulations enacted by the Minister in December 1985 in Statutory Instrument 371/85 provided in ss 2 and 3 that:

 

“2 (1) No employer shall, summarily or otherwise, terminate a contract of employment with an employee unless –

 

(a) he has obtained the prior written approval of the Minister to do so; …

 

(b) …

 

(c) …

 

(d) the contract of employment is terminated in terms of section 3.

 

(2) The Minister may approve the giving of notice of termination to an employee in terms of paragraph (a) of subsection (1) if he is satisfied that the period of notice is in accordance with the contract of employment and that it is necessary for economic or other reasons, including the relative interests of the undertaking, trade or occupation and the employee, to do so.

 

3 Where an employer has good cause to believe that an employee is guilty of –

 

(a) …

 

(b) …

 

[Acts of misconduct listed];

 

the employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

 

The cases of Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S) at 308G-309B and Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S) at 346 G-H decided that the effect of subs (1)(a) of s 2 of the Regulations was that a contract of employment could not be terminated by giving the employee the requisite notice in accordance with the terms of a contract of employment without obtaining prior written approval of the Minister.

 

On 7 December 1990 the Regulations were, however, amended by the insertion of s 1A, which provided that:

 

“Sections 2 and 3 shall not apply to employees to whom the provisions of an employment Code of Conduct registered in terms of section 3 of the Labour Relations Act (Employment Codes of Conduct) Regulations 1990 apply.”

 

It was common cause that the second respondent had a registered employment Code of Conduct, the provisions of which applied to the appellants. The respondents’ contention was that the clear literal meaning of s 1A was that, as the second respondent had in operation a registered employment Code of Conduct, the provisions of which applied to the appellants, there was no obligation to obtain prior written approval of the Minister to terminate their contracts of employment on notice in terms of clause 13.

 

Mr Biti, for the appellants, relied on the decision of BARTLETT J in the unreported case of Masundire v Willowvale Mazda Motor Industries (Pvt) Ltd HH-5958-95 for authority for the proposition that giving legal effect to the literal meaning of s 1A of the Regulations would lead to an absurdity in that employees, to whom provisions of an employment Code of Conduct applied, would not enjoy protection from arbitrary exercise of power by employers to terminate contracts of employment on notice without any reasons being given, whilst employees with no Codes of Conduct applying to them would be protected as a result of the requirement of prior written approval of the Minister.

 

Mr Hwacha, for the respondents, argued that against the decision in Masundire’s case, supra, on the interpretation of s 1A of the Regulations, was an obiter dictum of GUBBAY CJ (as he then was) in Chivinge v Mushayakarara & Ano 1998 (2) ZLR 500 (S), the decision of GARWE J (as he then was) in Samuriwo v Zimbabwe United Passenger Co 1991 (1) ZLR 385 (H) and the decision of three judges of this Court in Kwaramba v Baines Industries (Pvt) Ltd S-39-2001.

 

The learned judge in the court a quo felt bound by the decision in Kwaramba’s case supra and held against the appellants on the question whether or not, upon a literal construction, their contracts of employment were lawfully terminated by the second respondent on a month’s notice without having obtained prior written approval of the Minister to do so. He nonetheless said that had he not been bound by the authority of the decision in Kwaramba’s case supra and was free to give effect to his own opinion of the matter, he would have associated himself with the reasoning of BARTLETT J in Masundire’s case supra.

 

Mr Biti argued on appeal that the cases which went against the decision in Masundire’s case supra were wrongly decided and should be overruled. This submission brought into question the correctness or otherwise of the decision in Kwaramba’s case supra, which had to be considered by the full Court.

 

I must emphasise the fact that we are here concerned with the applicable law as at the date of termination of the appellants’ contracts of employment. The law was changed on 7 March 2003 by s 12B of the Labour Relations Amendment Act No. 17 of 2002, which made it an unfair dismissal if an employer failed to show that he dismissed the employee in terms of an employment Code of Conduct.

 

I proceed. It appears to me that the literal meaning of s 1A of the Regulations was clear and unambiguous. It was that where there was in existence a registered employment Code of Conduct, the provisions of which applied to the employee, then the employer was not under the statutory obligation to obtain prior written approval of the Minister to terminate the contract of employment with the employee on notice. That is not to say the employee was without protection against arbitrary termination of employment. The existence of a registered employment Code of Conduct, the provisions of which applied to the employee whose contract of service it was sought to terminate, was made the pre-condition for the claim to the exemption from the obligation to obtain prior written approval of the Minister.

 

The provisions of the employment Code of Conduct had to apply to the employee’s conduct as an employee. They did not have to apply to him by having as the subject-matter the termination of the contract of employment on notice. The matters which the provisions of an employment Code of Conduct addressed were prescribed in s 101(2) of the Labour Relations Act [Chapter 28:01] (“the Act”) and s 4 of Statutory Instrument 377/90. They related to discipline and the administration of discipline at workplaces. Whilst Codes of Conduct embodied statutorily prescribed procedures for the termination of contracts when allegations of misconduct were made against the employee, their provisions by definition would not deal with the giving of notice as a procedural method of termination of a contract of employment.

 

So, when it removed the obligation to obtain the prior written approval of the Minister as a procedural requirement for the termination of a contract of employment on notice, s 1A of the Regulations introduced the procedure contained in the employment Code of Conduct as the method of termination of the contract of employment where the disclosed or undisclosed reason thereof was misconduct on the part of the employee.

 

Where there was no allegation of misdemeanour, the effect of s 1A of the Regulations was that the employer had a right to terminate the contract of employment on notice, as long as the employee was one to whom the provisions of the registered Code of Conduct applied. The legal effect of s 1A of the Regulations was that a contract of employment could be terminated on notice for any reason other than those relating to misconduct.

 

The interpretation placed on s 1A of the Regulations by BARTLETT J in Masundire’s case supra was to the effect that where there was a registered employment Code of Conduct the employer was obliged to terminate the contract of employment in terms of the provisions of that Code of Conduct even if no allegations of misconduct were made against the employee. The learned judge was, at the same time, aware of the fact that his interpretation had no basis in the wording of the statute itself. He reasoned that since Codes of Conduct could not contain provisions dealing with termination of contracts of employment on notice, an employer who could not terminate in terms of the Code of Conduct was obliged to obtain prior written approval of the Minister to terminate the contract of employment on notice.

 

The learned judge was unable to acknowledge the fact that s 1A of the Regulations had the effect of creating two different procedural methods of termination of a contract of employment – one being the disciplinary procedure created by statute and the other being the giving of notice created by contract. The clear, unambiguous and mandatory provisions of s 1A of the Regulations, to the effect that “sections 2 and 3 shall not apply to employees to whom the provisions” (my emphasis) of a registered employment Code of Conduct applied, could not, without doing violence to the language used, be interpreted to mean that prior written approval of the Minister to terminate the contract of employment on notice was required.

 

Faced with this difficulty, the learned judge then sought to avoid giving legal effect to the literal meaning of s 1A by seeking to read words into the section so that it read “sections 2(1)(d) and 3 shall not apply to employees” to whom the provisions of a registered employment Code of Conduct applied. To that extent the learned judge was, with respect, no longer engaged in the process of interpreting s 1A of the Regulations. He was in effect now creating a statute for the legislature. There was no justification at all for the introduction of the limiting words suggested by the learned judge.

 

In the obiter dictum in Chivinge’s case supra GUBBAY CJ said at 504 D-G:

 

“In Masundire v Willowvale Mazda Motor (Ind) (Pvt) Ltd (an unreported judgment dated 6 December 1995) BARTLETT J was of the opinion that a literal interpretation of s 1A is so illogical as to lead to absurdity. I am not sure he was right. It could be argued fairly strongly that the introduction of employment codes of conduct in December 1990 heralded a clear shift in labour policy from direct State control to an increase in labour autonomy. It may well be that it was considered that if employees in a particular undertaking were competent to negotiate a code of conduct, the indication was that they had reached a position where they were capable of looking after their own interests and solving their own problems. Secondly, employees were now being encouraged to negotiate collective bargaining agreements dealing comprehensively with their conditions of service. (See, for instance, Collective Bargaining Agreement: Commercial Sectors, SI 45 of 1993, which in s 24 clearly envisages that notice may be included in individual contracts). Then again it may have been thought that, as dismissal for misconduct was a major area of contention, once a code of conduct was put in place, the need to regulate misconduct would be covered; hence if there was no longer the necessity in that area for the protection which existed under the Regulations, the other subsidiary protections might just as well be repealed. Finally, there is no ambiguity in what s 1A provides. It clearly specifies that once a code of conduct has been registered, ss 2 and 3 do not apply. Nothing could be clearer.” (The underlining is mine)

 

In Samuriwo’s case supra GARWE J was also of the opinion that s 1A of the Regulations contained very clear and unambiguous language, the effect of which was that prior written approval of the Minister to terminate on notice a contract of service with an employee to whom the provisions of a registered Code of Conduct applied was not required. The learned judge made the pertinent observation that the legislature must be presumed to have been aware when enacting s 1A of the Regulations that employment Codes of Conduct contained provisions which dealt with matters of discipline and administration of discipline at workplaces.

 

The ratio decidendi in Kwaramba’s case supra was also to the effect that there was no ambiguity in the meaning of s 1A of the Regulations. The basis of the decision was that once it was established as a fact that there was in operation in the undertaking a registered employment Code of Conduct, the provisions of which applied to the employee whose contract of service was sought to be terminated on notice, the employer was not under a duty to obtain prior written approval of the Minister to terminate the contract of employment on notice.

 

It is important to point out that the effect of the ratio decidendi in Kwaramba’s case supra was not that the employer was free to terminate the contract of employment on notice regardless of the cause thereof. It is clear from the incorporation of the Code of Conduct into the procedural requirements for the termination of a contract of employment that the intention of the legislature was that where misconduct was involved, or the decision to terminate was of a disciplinary nature, the employer was bound to comply with the disciplinary procedure prescribed in the Code of Conduct.

 

In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calendar month’s notice and could exercise it without obtaining prior written approval of the Minister. The decision in Kwaramba’s case supra is, in my view, correct, whilst that in Masundire’s case supra is wrong.

 

The next question to determine is whether the right given to the employer to terminate the contracts of employment on giving the appellants one month’s notice for non-disciplinary reasons could be exercised without regard to the principle of natural justice expressed in the maxim audi alteram partem (“the audi rule”).

 

The audi rule is a common law principle which has been applied by courts in review proceedings as part of administrative law, to grant relief to persons whose rights, liberty, property, or legitimate expectation have been adversely affected by decisions made by public authorities or bodies in the exercise of statutory (public) powers without having been afforded the opportunity to be heard.

 

In Administrator, Transvaal v Traub [1989] ZASCA 90; 1989 (4) SA 731 (A) CORBETT CJ at 748 G-H said the classical formulations of the audi alteram partem rule state that:

 

“When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty, or property or existing rights the latter has a right to be heard before the decision is taken (or in some instances thereafter: see Chikare’s case supra at 379G) unless the statute expressly or by implication indicates the contrary.”

 

The principle can and has been applied in appropriate circumstances to decisions made in the exercise of contractual rights. Whether or not the audi rule is applicable to a particular decision will depend on the circumstances of the case, particularly whether the express or implied terms of the statute or contract under which the decision is taken require its observation.

 

There is a presumption in favour of the application of the audi rule when the decision is made in the exercise of a statutory power unless the rule is expressly excluded. There is no similar presumption when a decision is taken in the exercise of a contractual right because the question in the area of contract is whether or not failure to hear the other party constituted a breach of contract. A party cannot be in breach of an obligation which has not been made an express or implied term of the contract.

 

In Marlin v Durban Turf Club & Ors 1942 AD 122 TINDALL JA said at 126-127 that when the audi rule was being applied to procedures of tribunals it was:

 

“… merely a compendious way of saying that such tribunals must observe certain fundamental principles of fairness which underlie our system of law as well as the English law. … The said test of fundamental fairness, however, must be applied with due regard to the nature of the tribunal or adjudicating body and the agreement, if any, which may exist between the persons affected.”

 

In Grundling v Beyers & Ors 1967 (2) SA 131 TROLLIP J said at 141 D-E:

 

“In a statute empowering an official or body to give a decision adversely affecting the rights or liberty or property of an individual, a legal presumption usually operates that the audi alteram partem rule has to be observed. There is no such presumption in a contract. The obligation to afford a hearing according to natural justice must there be either an expressed or necessarily implied term of the contract. (Russell v Duke of Norfolk [1948] 1 All ER 488, [1949] 1 All ER 109; Lawlor v Union of Post Office Workers (1965) 2 WLR 579 at pp 591/2; cf Marlin v Durban Turf Club and Ors 1942 AD 112 at pp 122, 127/128).”

 

At p 141H His Lordship said that ordinarily an obligation to afford a hearing was not implied in the pure contract of master and servant in respect of the latter’s dismissal.

 

The test enunciated by TROLLIP J in Grundling’s case supra was applied with approval by BOTHA JA in Turner v Jockey Club of South Africa 1974 (3) SA 633 where at 645H-646B he said:

 

“In the case of a statutory tribunal its obligation to observe the elementary principles of justice derives from the expressed or implied terms of the relevant enactment, while in the case of a tribunal created by contract the obligation derives from the express or implied terms of the agreement between the persons affected. (Maclean v Workers’ Union [1929] 1 ChD 602 p 623). The test for determining whether the fundamental principles of justice are to be implied as tacitly included in the agreement between the parties is the usual test for implying a term in a contract as stated in Mullin (Pty) Ltd v Benade Ltd 1952 (1) SA 211 (AD) at pp 214-5, and the authorities there cited. The test is, of course, always subject to the expressed term of the agreement by which any or all of the fundamental principles of justice may be excluded or modified.”

 

Lastly on the test to be applied, I need to refer to what was said by LORD WILBERFORCE in Malloch v Aberdeen Corporation [1971] 2 All ER 1278. This was a case in which the Scottish education authority terminated the employment of a teacher by giving him notice in terms of the Education (Scotland) Act 1962. The teacher complained that the decision to terminate his contract of employment was unlawful because he had not been heard before being dismissed. At p 1293h His Lordship had this to say:

 

“The appellant’s challenge to the action taken by the respondents raises a question, in my opinion, of administrative law. The respondents are a public authority, the appellant holds a public position fortified by statute. The considerations which determine whether he has been validly removed from that position go beyond the mere contract of employment, though no doubt including it. They are, in my opinion, to be tested broadly on arguments of public policy …”.

 

Later at p 1294 c-h he said:

 

“What is the test of whether the appellant is entitled to a hearing, or to state his case? In the judgments in the courts below and also in argument at the Bar, this was put largely in terms of the question whether the relationship between the appellant and the education authority was that of master and servant, or was some other relationship. If the appellant was merely a servant then, it was said, the law is that he can be dismissed without a hearing; and his remedy lies only in damages. That the relationship between the appellant and the respondent was simply that of servant and master was the opinion of the LORD ORDINARY, and the same approach is implicit in the judgment of the INNER HOUSE. … The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found, in one form or another, in reported cases. There are two reasons behind it. The first is that, in master and servant cases, one is normally in the field of the common law of contract inter parties, so that principles of administrative law, including those of natural justice, have no part to play. … One may accept that if there are relationships in which all requirements of the observance of the rules of natural justice are excluded, these must be confined to what have been called ‘pure master and servant cases’, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection.”

 

The cases cited by Mr Biti as authority for the submission that the audi alteram partem rule was applicable to the decision of the second respondent to terminate the appellants’ contracts of employment on notice, involved public authorities or bodies exercising statutory (public) power. These are cases which properly gave rise to questions of administrative law. See Langeni v Minister of Health 1988 (4) SA 93 (W); Lunt v University of Cape Town 1989 (2) SA 438 (C); Administrator, Transvaal v Traub supra; Administrator, Transvaal v Zenzile [1990] ZASCA 108; 1991 (1) SA 21 (A); Administrator, Natal v Sibiya [1992] ZASCA 115; 1992 (4) SA 532 (A); and Taylor v Minister of Higher Education 1996 (2) ZLR 77 (S).

 

The decision to terminate the appellants’ contracts of employment on notice was made in the exercise of a contractual right. Mr Hwacha argued that this was a case of a mere contract of employment between private individuals. It was not an express term of the contract of employment containing the right to terminate on notice that the appellants should be heard before the decision to give them notice was taken. There is no basis on which such an obligation can be implied into the contract. That is particularly the case when termination for misconduct is expressly provided for in the Code of Conduct.

 

In Monckten v British South Africa Co 1920 AD 325 a teacher who had refused to accept a decision by the Administration to transfer him from one school to the other was given notice to terminate his contract of employment. Had the action by the Administration been of a disciplinary nature, it would have been bound to hold an enquiry in compliance with the procedural requirements prescribed by the Civil Service Regulations 1898. The appellant had not been charged with any act of misconduct. No formal enquiry had been considered necessary. The decision to terminate was taken in terms of his contract. In answer to the complaint by the appellant that the decision to terminate his contract of employment on notice was unlawful because it was in contravention of the audi alteram partem rule, INNES CJ said at 330:

 

“If the right of the Administration to terminate his service were based upon the enquiry; if the validity of their subsequent action depended upon these proceedings, we might have been able to assist him. But that is not the position; the steps subsequently taken were taken under the terms of his letter of appointment, and were covered by those terms. He held his post subject to transfer, and subject to three months’ notice, or to equivalent salary in lieu thereof. He was offered transfer to another educational post which he did not accept; and failing acceptance he received four months’ pay and his service was terminated. I agree with the learned judge in thinking that he was not punished under the Regulations but dealt with under his contract.”

 

Mr Hwacha, for the respondents, correctly pointed out that the appellants were not dealt with in terms of the registered employment Code of Conduct, the provisions of which applied to them, because the decision to terminate their contracts of employment was not of a disciplinary nature. No allegations of misconduct were made against the appellants. They were dealt with in terms of their contracts of employment. They had been offered employment under the new terms and conditions which they did not accept. The other branch managers had appreciated the fact that the proposed changes in their conditions of employment were in the interest of the business and accepted them.

 

The appellants perhaps failed to appreciate that a contract of employment cannot remain static throughout the whole of its existence regardless of the changes in the fortunes of the business. Refusal to accept a change in the terms and conditions of employment necessitated by the commercial interests of a business may be a good enough reason for terminating a contract of employment on notice. The decision to terminate the appellants’ contracts of employment on notice without hearing them was not unlawful.

 

I agree with the learned judge in the court a quo that the provisions of ss 18(1) and 18(9) of the Constitution were irrelevant to the resolution of the questions raised by the application placed before him. There is no need to say more on them.

 

The appeal is accordingly dismissed with costs.

 

CHIDYAUSIKU CJ: I agree.

 

SANDURA JA: I agree.

 

ZIYAMBI JA: I agree.

 

GWAUNZA JA: I agree.

 

Honey & Blanckenberg, appellants' legal practitioners

Dube, Manikai & Hwacha, respondents' legal practitioners