Labour Column Davis Ndumiso Sibanda
THE definition of managerial employee remains problematic for both employers and employees resulting in a lot of conflicts and disgruntlement when it comes to granting of level related benefits and discipline handling.
The Labour Act defines a managerial employee as follows, “means an employee who by virtue of his contract of employment or his seniority in an organisation may be required or permitted to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge grievances of other employees.”
The given definition has been a subject of disputes in many cases. Most organisations have taken a simplistic approach of declaring all employees within National Employment Council coverage as non-managerial. Such an approach is risky in that there are many employees who are graded as non-managerial employees but following the legal definition they are managerial employees.
Unpacking the definition is not all that simple as employees can be managerial employees by virtue of their contract of employment, others can be managerial employees by virtue of their seniority in the organisation and others may be managerial employees due to the nature of tasks they perform. One has to go into case law to get clear meaning of each.
There have been cases where managerial employees have refused to relinquish positions on being placed in managerial positions and at times managerial employees take positions in non-managerial employees’ workers committees. Such action by managerial employees could lead to dismissal.
In the case Ngulube vs ZESA SCS2/2006, Ngulube, a managerial employee was elected into the non-managerial workers committee and the employer ordered him to relinquish his position and he refused to do so. He was dismissed.
He appealed to the Supreme Court arguing that his right to freedom of association had been infringed. The Supreme Court ruled that his rights were not infringed upon as he was free to form or join a managerial workers committee as provided at law in terms of section 23(1) of the Labour Act. There is a need to recognise that some rights are not absolute.
One of the heavily contested areas has been discipline handling and which code of conduct is applicable. In the matter Almini Metal Industries LTD vs Chinowaita SC8/03, the Supreme Court dealt with the applicability of the NEC code of conduct to managerial employees and showed clearly when the NEC code of conduct cannot be extended to managerial employees.
In conclusion, it is not the grade of the employee that determines whether one is a managerial employee or not but the nature of contract, seniority in the organisation or nature of duties. However, some grading methods can easily separate managerial from non-managerial employees thus grading can be used as a general guide in such cases.
Davies Ndumiso Sibanda can be contacted on:
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