Davies Ndumiso Sibanda
MANY workers work with their cell phones by their side and from time to time they handle personal calls and messages abusing the employer’s time.

Workers need to understand that once working hours start, they can no longer engage in private business without the employer’s permission and as such attending to personal business during working hours is misconduct.

Many workers take advantage of the fact that the employer looks aside when they are on WhatsApp handling private business and assume there is nothing wrong with such conduct.

One employee said to me, there was no policy on attending personal phones during working hours. The issue is not that there is no policy but that doing private business during working hours is unlawful. It can be express in one’s contract or employment policies but where there is nothing written down the position becomes an implied requirement.

An implied condition of contract employment is one whereby there is no requirement for a worker to be told that he or she is doing something wrong but if a normal human being must know he or she is doing something wrong.

This principle was highlighted in the case Mpumela vs Berger Paints (SC133/99) where the Mpumela was told to dress properly and he refused to do so arguing that requirement was not in the contract. After several warnings he was dismissed and he appealed to the Supreme Court where the court said, “I am satisfied that in the present case the order issued by the respondent’s manager was an order properly appertaining to the character of the appellant’s contract of employment and was lawful. It cannot cogently be argued that as the contract of employment did not mention what type of clothes the appellant was required to wear, the respondent’s manager could not order him to wear appropriate clothes.

In my view, there is certainly no substance in the argument that the appellant was entitled to wear whatever clothes he wanted to wear. If that were the case, the appellant would have been entitled to go to work wearing a jogging suit or track suit, which could hardly have been within the contemplation of the parties at the time the contract of employment was concluded, bearing in mind the fact that the appellant was employed as a bookkeeper.”

This judgement makes it clear that there will be conditions of employment that appertain to the character of one’s job and as such these must be observed. In my opinion, attending to one’s phone during working hours is unlikely to correctly appertain to the character of most workers jobs. One would have to present a brilliant argument to demonstrate that attending to personal calls correctly appertains to their job.

Further, Mpumela’s case brings up other lessons that, whatever is not written into one’s contract must be within the contemplation of parties at contracting. Again, it will be a tall order for a worker to provide proof that attending to personal calls was within the contemplation of parties at contracting time.

Employees who attend to personal calls during working hours run the risk of being charged with act inconsistent with implied conditions of the contracts of employment and be dismissed.

Employees need to be alive to the fact that if the employer concludes that their conduct goes to the root of the relationship they will be dismissed even if the misconduct is not dismissible in terms of the code of conduct. This position was settled in the matter ZB Bank vs Masunda 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 Godide SC 2/16.”
Acts like going outside or hiding in the toilet or some other places are risky as things can go wrong and one is caught and dismissed.

In conclusion, workers would refrain from attending to personal phones during working hours without permission from the employer. They can safely do so during breaks or when they have knocked off.

Davies Ndumiso Sibanda can be contacted on [email protected]