Judgment No. SC 43/15
Civil Appeal No. SC 281/14
REPORTABLE (39)
DON NYAMANDE (2) KINGSTONE DONGA
Versus
ZUVA PETROLEUM (PRIVATE) LIMITED
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA,HLATSHWAYO JA &
GUYAVA JA
HARARE, FEBRUARY 3 &JULY 17, 2015
L Madhuku, with him C Mucheche, for the appellants T Mpofu, for the respondent
CHIDYAUSIKU CJ: This is an appeal from a judgment of the Labour Court delivered on 28 March 2014 allowing termination of the appellants’ employment contracts on notice.
The facts of this case are common cause. They are as follows. The appellants were employed by BP Shell as supply and logistics manager and finance manager. BP Shell sold its services as a going concern to Zuva Petroleum, the respondent. A transfer of undertaking was done in terms of s 16 of the Labour Act [Chapter 28:01] (hereinafter referred to as “the Act”) and an agreement of sale concluded. The appellants were transferred to the new undertaking without derogation from the terms and conditions of employment that they enjoyed when they were under BP Shell.
In essence, the Labour Court came to the conclusion that neither s 12B nor s 12(4) of the Act abolished the employer’s right to terminate employment on notice. I respectfully agree with this conclusion,
The appellants were aggrieved by the judgment of the Labour Court and now appeal to this court on the following grounds:
“The Labour Court erred and seriously misdirected itself on a question of law by upholding the termination of the appellants’ contracts of employment on notice and failing to find such termination to be unfair dismissal.
The Labour Court erred and seriously misdirected itself on a question of law in failing to realize as it should have done that section 12(4) of the Labour Act [Chapter 28:01] does not provide for the termination of a contract of employment on notice and that any such purported termination is contrary to section 12B of the Labour Act [Chapter 28:01 j.
The Labour Court erred at law in allowing termination on notice as that amounts to allowing an employer to terminate employment for no justifiable and valid cause.”
The appellants seek the setting aside of the Labour Court judgment and its substitution with that of the arbitrator.
It would appear on the papers that the bone of contention between the parties is the legal status of the employer’s common law right to terminate an employment relationship on notice. Counsel are agreed that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. The point of departure appears to be that the appellants, while acknowledging that the employer’s right once existed, argue that it has since been abolished. The respondent contends that the employer’s right has not been abolished and still subsists.
It was contended for the appellants that s 12B of the Act abolished the employer’s common law right to dismiss an employee on notice.
(i) had a legitimate expectation of being re-engaged; and
(ii) another person was engaged instead of the employee.
(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”
As I have already stated, it is common cause that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. That common law right in respect of both the employer and the employee can only be limited, abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament.
I am satisfied that s 12B of the Act does not abolish the employer’s common law right to terminate employment on notice in terms of an employment contract for a number of reasons.
The time-honored and golden rule of statutory interpretation is that you give the words of a statute their primary meaning. See National Railways of Zimbabwe Contributory Pension Fund v Edy S-141-88; Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S); S v Masivira 1990 (1) ZLR 373 (HC); Maxwell onThe Interpretation of Statutes 12 ed at p 28; Nyemba and Watunga v R 1961 R & N 688 (SR) at 691C-D; Mike Campbell (Pvt) Ltd v Minister of Lands and Anor 2008 (1) ZLR 17 (S) at 33-35; and Mawarire v Mugabe NO and OrjCCZ-01-2013.
The section that deals with termination of a contract of employment on notice is s 12(4) of the Act. I shall revert to this section later in this judgment.
It is also instructive to note that s 8 of the Act sets out in some detail conduct that is outlawed as unfair labour practice.
Section 8 of the Act provides as follows:
“8 Unfair labour practices by employer
An employer or, for the purpose of paragraphs (g) and (/?), an employer or any other person, commits an unfair labour practice if, by act or omission, he -
{a) Prevents, hinders or obstructs any employee in the exercise of any right conferred upon him in terms of Part II; or
(b) contravenes any provision of Part II or of section eighteen; or
(c) refuses to negotiate in good faith with a workers committee or a trade union which has been duly formed and which is authorized in terms of this Act to represent any of his employees in relation to such negotiation; or
(d) refuses to co-operate in good faith with an employment council on which the interests of any of his employees are represented; or
(e) fails to comply with or to implement -
(i) a collective bargaining agreement; or
(ii) a decision or finding of an employment council on which any of his employees are represented; or
(iii) a decision or finding made under Part XII; or
(iv) any determination or direction which is binding upon him in terms of this Act; or
{f) Bargains collectively or otherwise deals with another trade union, where a registered trade union representing his employees exists; or
(g) Demands from any employee or prospective employee any sexual favour as a condition of—
(i) the recruitment for employment; or
(ii) the creation, classification or abolition of jobs or posts; or
(iii) the improvement of the remuneration or other conditions of employment of the employee; or
(iv) the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or
In the Commercial Careers College case supra it was common cause that the personal relationship between the applicants and the respondent was totally destroyed. The applicants’ stance was simply that the respondent, the employer, cannot terminate their employment contracts on notice at law, but they can resign from employment willy-nilly. That proposition was rejected.
The same proposition that where the relationship between the employer and the employee has deteriorated to untenable levels through no fault of either party the relationship can be terminated was accepted in Winterton, Holmes & Hill v Paterson 1995 (2) ZLR 68 (S).
•Quite clearly, the appellants’ case is predicated on the proposition that dismissal means all forms of termination of employment. Put differently, all terminations of employment are dismissals. This proposition is not tenable on the authority of the above cases. That proposition is clearly erroneous.
The proposition that there are other methods or forms of terminating employment apart from dismissal was clearly articulated in the case of Samuriwo v Zimbabwe United Passenger Company 1999 (1) ZLR 385 (H), wherein GARWE J (as he then was) had this to say at 388E:
“The code, in compliance with s 101 of the Act, steers clear of other matters that have nothing to do with misconduct, such as termination for other reasons. Whilst it must be accepted that the code makes no provision for the managing director himself to be the subject of disciplinary proceedings, it seems to me that this is irrelevant as the termination in the present case is not sought on the basis of the code but in terms of the contract of employment (the emphasis is mine)
Samuriwo’s case supra places beyond dispute the fact that there are other ways of termination of employment different from dismissal in terms of codes of conduct following disciplinary proceedings as provided for in the codes of conduct.
(a) three months in the case of a contract without limit of time or a contract for a period of two years or more;
(b) two months in the case of a contract for a period of one year or more but less than two years;
(c) one month in the case of a contract for a period of six months or more but less than one year;
(d) two weeks in the case of a contract for a period of three months or more but less than six months;
(e) One day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work.”
The wording of s 12(4) of the Act is so clear that it leaves very little room, if any, for misinterpretation. It governs the time periods that apply when employment is being terminated on notice. It stands to reason that the notice periods do not apply when an employee is dismissed. In instances of dismissal no notice is required. The periods of notice referred to in s 12(4) of the Act can only apply where there is termination of employment in terms of a process involving the giving of notice provided for in a contract of employment.
I accept the appellants’ contention that s 12(4) of the Act does not create a right to terminate employment on notice. Indeed, this contention appears to be accepted by the respondent.
The respondent’s case is that the right to terminate employment on notice is created by common law and not by statute or s 12(4) of the Act. It contends that s 12(4) of the Act simply regulates the exercise of that right conferred on the employer by common law.
Section 12(4) of the Act explicitly applies to both the employer and the employee. There is no possible explanation, and none has been advanced, why, despite the explicit language of the section, it should apply to the employee only and not to the employer; or why the section should exist to regulate a non-existent right. As Mr Mpofu aptly submitted,
