Labour Matters: Omnibus clause dilemma

Davies Ndumiso Sibanda
ONE of the most feared charges by employees is where the employer alleges the worker acted in a manner inconsistent with implied conditions of his contract and almost in all cases this leads to dismissal of an employee.

While the law says this charge is a common law charge which can be used by the employer even if it is not written into the code of conduct, there is no legal requirement to dismiss all employees charged with acts inconsistent with implied conditions of their contract as some acts that are inconsistent with implied conditions of the contract do not go to the root of the relationship.

Conduct that goes to the root of the relationship is conduct by the employee that breaks the special trust, confidence and reliance the employer had on the employee.

This means that where the employee’s conduct does not go as far as breaking trust, confidence or reliance the employer has on the employee, then dismissal should not be the penalty.

The challenge though is that for the employee to prove that conduct does not go to the root of the relationship is not an easy task. The employee carries the burden of proof.

The leading case on an act inconsistent with implied conditions of one’s contract is MURAWO VS GRAIN MARKETING BOARD — SC27/09 where Murawo attended a strategic planning meeting where he had not been invited. He lied he had been invited by his boss.

He was taken through a disciplinary hearing and dismissed. The dismissal was upheld by the Labour Court.

It was held that the misconduct was looked at and found to have justified dismissal. The court went further to look at sufficiency of the justification (my emphasis) and quoted from the English case Clouston and Co. Ltd vs Corry (1906) AC122 at 129(PC) cited with approval in Laws v London Chronicle (indicator Newspaper Ltd)Ltd (1959)2 All ER 285 (CA) at 287H as follows:

“Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal.

“Of course there may be conduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other.

“On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.’

“I consider that the seriousness of the misconduct is to be measured by whether it is ‘inconsistent with the fulfilment of the express or implied conditions of his contract’. If it is, then it is serious enough prima facie to warrant summary dismissal. … Then it is up to the employee to show that his misconduct though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

In conclusion the court said, “In the present case, Murawo’s misconduct can hardly be described as so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted. On the contrary, the misconduct was serious and premeditated, and called for the penalty of dismissal.”

The lesson from this case is that for one to survive dismissal, he will have to prove that the misconduct was so trivial, so inadvertent, so aberrant or otherwise so excusable thus dismissal is not warranted.

One has to prove only one of this as guided by the case at hand.

In conclusion, not all acts inconsistent with implied conditions of one’s contract are dismissible, however the burden of proof lies with the employee.

Davies Ndumiso Sibanda can be contacted on:Email: [email protected]