Davies Ndumiso Sibanda
IN one of the most informative judgements, the Supreme Court emphasised the employer’s right to discipline employees and that higher courts cannot interfere with the employers’ decision unless the employer’s decision was made in a moment of madness.
In the matter the National Employment Council for the Catering Industry vs Kundeya and others (SC35/2016) the Supreme Court ruled that the employer’s discretion in deciding a penalty cannot be interfered with unless a party can prove that the disciplinary authority acted unreasonably in ordering the dismissal.
It does not matter whether mitigation factors outweigh aggravating factors. The judge said, the discretion whether or not to extend mercy lay with the employer.
This was a case of employees who had been transferred to different stations and they objected to the transfers and engaged a lawyer to present their objections, which the employer listened to and dismissed.
They were given three-months’ notice and on the day they were supposed to report at their respective stations, they did not do so and they were subsequently dismissed using the National Code of Conduct for refusal to take a lawful instruction and alternatively acts inconsistent with implied conditions of their contract.
They appealed and on appearing before the arbitrator, the arbitrator altered the employer’s decision and gave a lesser penalty. It is the action of the arbitrator that the employer objected to and appealed to the Labour Court.
The Labour Court confirmed the decision of the arbitrator and when the matter got to the Supreme Court, the decision of the employer was restored.
One thing that is evident in this judgement is strong criticism of the Labour Court and arbitrators as the judge cited several cases where this principle has come up and the Labour Court continues to make the mistake.
For example the judge highlighted that it was not the first time the Labour Court has had to deal with such mis-direction at law by citing cases by Justice Malaba (Innscor Africa vs Chimoto and another case before Justice Ziyambi) where the judge said “ZIYAMBI JA was at pains to remind Labour Court Judges and arbitrators that it was not open to them to alter a penalty of dismissal in the absence of misdirection or unreasonableness on the part of the employer.
That caution appears to have found no takers as it continues to be disregarded. What is especially alarming and of serious concern is the belief by some authorities, that they can replace the employer’s discretion to dismiss with their own to reinstate and then “compel the employees to obey the employer’s orders”. This clearly shows the irritation of the Supreme Court.
In conclusion, lessons for employers and trade unionists are that the employer has the right to use discretion and his discretion cannot be challenged unless there is evidence that the employer acted unreasonably in ordering the dismissal.
Davies Ndumiso Sibanda can be contacted on: e-mail: [email protected]; or cell No: 0772 375 235