Once the employer decides you are dismissed, you are doomed?

MANY workers who have been dismissed for misconduct have cried that the employer should have been more lenient with them and given them a lesser penalty than dismissal, without success.

The Labour Act Chapter 28:01 section 12 B(4) provides for consideration of mitigatory factors and it reads: (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”.

Looking carefully through section 12B subsection 4, the Act does not say all cases qualify for lessening of penalty after considering mitigation.

It recognises that there are cases that do not justify mitigation for example, cases like sexual harassment, insubordination, theft and refusal to obey a lawful instruction would obviously not qualify for action other than dismissal. 

Where there is evidence that the employee is guilty, it is wise for the employee to plead for leniency in the first hearing and make all the brilliant arguments showing contrition and avoid irritating the employer. 

This is so because once the employer arrives at a conclusion that the misconduct goes to the root of the relationship and dismisses the employee, there is no other relief for the employee unless the employee can provide evidence that the decision that the employer made is so outrageous that it defies logic how it was arrived at. 

Simply put, the employee will have to present a brilliant argument, demonstrating unreasonableness on the part of the employer, which on the part of the employee will be a difficult thing to do. 

We find dicta in ZB Bank vs Masunda SC 48/16 where the Supreme Court said: “At common law an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract. See Toyota Zimbabwe v Posi SC-55-07. 

In essence, where the employer takes a serious view of the misconduct he can dismiss an employee even if in terms of the code of conduct the offence would have attracted a lesser penalty. This position was set out in Zimplats (Pvt) Ltd v GodideSC 2/16, Toyota Zimbabwe v Posi SC55/07, National Employment Council for the Catering Industry v Richard Kundeya & 2 Others, Innscor Africa (Pvt)LTD v Chimhini SC6/12 and Mashonaland Turf Club v George Mutangadura SC247/10.”

This position is worsened by the fact that even where the code of conduct provides for leniency or mitigation or a lesser penalty, the employer’s decision remains final. 

From the cases cited above, it will be seen that arbitrators and the Labour Court have overturned the employer’s decision to dismiss and substituted it with final warnings and reinstatement in some cases. 

The Supreme Court says all this is wrong as the employer’s discretion cannot be interfered with unless the decision of the employer was unreasonable.

What all this means is that when representing a worker and there is clear evidence that the worker is guilty, it is not advisable to put up a fight but it is better to plead guilty and put up a brilliant argument for leniency as any appeal around leniency that is arguing that the employer was too harsh in dismissing the employee is unlikely to help. 

It must, however, be noted that there are many other cases where employees will be unfairly dismissed and in such cases, they are within their rights to put brilliant arguments against the allegations and can also appeal against what they see as defective findings against the employer where their chances of success are good. 

In conclusion, workers are advised to avoid, where they are wrong pushing the employer to a dismissal through unnecessary arguments as there will be unlikely to get themselves back to work on appeal.

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