Brighton Mahuni - LLB Thesis PDF

MIDLANDS STATE UNIVERSITY
FACULTY OF LAW
DISMISSAL AS A PENALTY FOR MISCONDUCT: THE APPROPRIATE APPROACH

UNDER THE LABOUR ACT [CHAPTER 28:01]
BY
BRIGHTON MAHUNI
STUDENT NUMBER: R091645Q
SUPERVISOR: MR. T. G. KASUSO
This dissertation is submitted in partial fulfilment of the requirements of the Bachelor of Laws
Honours Degree
June 2014
1
FACULTY OF LAW
RESEARCH PAPER COVER SHEET
STUDENT NUMBER: R091645Q

PROGRAMME: BACHELOR OF LAWS HONOURS
DEGREE
SUPERVISOR/DISSERTATION CO- MR. T. G. KASUSO
ORDINATOR:
TITLE OF RESEARCH PAPER: Dismissal as a penalty for misconduct:
The appropriate approach under the
Labour Act [Chapter 28:01]
DATE SUBMITTED: 04th JUNE 2014
2
FACULTYOF LAW
APPROVAL FORM
The undersigned certify that they have read and recommended to the Midlands State University
for acceptance; a dissertation entitled: Dismissal as a penalty for misconduct: The
appropriate approach under the Labour Act [Chapter 28:01] by Brighton Mahuni in
partial fulfilment of the requirements for the award for the Bachelor of Laws Honours Degree
(LLBS).
…………………………….. ……………………
SUPERVISOR DATE
……………………………......................................... ……………………..
PROGRAMME/DISSERTATION CO-ORDINATOR DATE
…………………………………………… ……………………..
EXTERNAL EXAMINER DATE
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FACULTYOF LAW
PLAGIARISM DECLARATION
1. I, Brighton Mahuni, do hereby acknowledge and declare that this research paper is my
own work and I have not copied the work of another student or author.
2. I acknowledge and declare that the written work is entirely my own except where other
sources are acknowledged.
3. I acknowledge and declare that this research paper has not been submitted in full or in
part for any other degree at any University or institution.
4. I acknowledge and declare that this research paper does not contain text, graphics or
tables copied and pasted from the internet, unless explicitly acknowledged, and the
source being detailed in the dissertation and in the References sections.
STUDENT SIGNATURE: …………………………….
DATE: ………………..
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DEDICATION
This study is dedicated to my late Grandmother, Kumbirai Theresa Mamhiyo. Words only
cannot express my gratitude for the love, tenderness, support and care you bestowed on me
during your lifetime Grandma. May your dearest soul rest in eternal peace. You will forever
remain dear to my heart. Lots of love!
5
REFERENCES
Legislation
Constitution of Zimbabwe Amendment (No. 20) Act, 2013
Constitution of the Republic of South Africa, Act 108 of 1996
Labour Act [Chapter 28:01]
Labour Relations Act 66 of 1995, South Africa
Basic Conditions of Employment Act 75 of 1997, South Africa
Regulations
Labour (National Employment Code of Conduct) Regulations, 2006.
CCMA Guidelines: Misconduct Arbitrations Notice 602 of 2011, South Africa
Code of Good Practice: Dismissals (Schedule 8 of the Labour Relations Act 66 of 1995), South
Africa
International Labour Organisation Instruments
International Labour Organisation (ILO) Convention concerning Termination of Employment

at the Initiative of the Employer 1985
International Labour Organisation (ILO) Recommendation concerning Termination of

Employment at the Initiative of the Employer 1985
Cases
Acklam v Sentinel Insurance Co Ltd [1959] 2 Lloyd’s Rep 683 at 689
Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761
Anglo American farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC)
Art Corporation v Moyana 1989 (1) ZLR 252
Astra Industries Limited v Chamburuka SC – 27 – 12
British Leyland UK Ltd v Swift [1981] IRLR 91
6
Central News Agency (Pty) Ltd v Commercial Catering and Allied Workers Union and Another
(1991) 12 ILJ 340 (LAC)
City of Mutare v Mutamisa 1998 (1) ZLR 512 (S)
Community Trust v Claudious Chemhere SC 22 – 13
Council for Scientific and Industrial Research v Fijen [1996] 6 BLLR 685 AD 6911
County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC)
Computicket v Marcus NO and Others (1999) 20 ILJ 342 (LC).
Coh Coh Enterprises v Mativenga and Kusowa SC/30-200
Chavhunduka v United Bottlers LC – H – 135 – 05
Dalny Mine v Banda 1999 (1) ZLR 221 (H)
De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)
Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC)
Four Seasons Foods (Pvt) Ltd v Mutsvakanhau SC – 44 – 09
Hama v NRZ 1996 (1) ZLR 58 (S)
Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others (2008) 29
ILJ 1180 (LC)
Humphries & Jewell (Pty) Ltd v Federal Council of Retail & Allied Workers Union & Others
[1991] 12 ILJ 1032 (LAC)
Innscor Africa (Pvt) Ltd v Letron Chimoto SC – 06 – 12
Jiah & Others v Public Service Commission and Another 1999 (1) ZLR 17 (S)
Langton Mapurisa v City of Masvingo LC – MS – 05 -14
Majurira v Tredcor Zimbabwe (Pvt) Ltd SC – 48 – 13
Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)
Marvo Stationary Manufacturing (Pvt) Ltd v Jokwani and Others 2005 (2) ZLR 261 (S)
Murawo v Grain Marketing Board 2009 (1) ZLR 304 (S)
7
Musumbu v BP Shell Marketing LC – H – 41 – 05
Muronzi v Foodworld Supermarkets LC – H – 37 – 08
National Union of Mineworkers & Another v Amcoal Colliery t/a Arnot Colliery & Another
(2000) 5 LLD 226 (LAC)
National Foods Ltd v Masukusa SC/230/93
National Union of Mineworkers v Commission for Conciliation Mediation and Arbitration

(CCMA) [2010] 6 BLLR 681 (LC)
Nampak Corrugated Wadeville v Khoza [1999] 2 BLLR 108 (LAC)
NEI Zimbabwe (Pvt) Ltd v Makuzva LC – H – 248 – 04
NUM & Another v East Rand Proprietary Mines Ltd (1987) 8 ILJ 315 (IC)
Passmore Malimanji v CABS SC – 47 – 07
Robert Musomekwa v BP & Shell Marketing LC – H – 12 – 09
SA Maritime Authority v McKenzie [2010] 5 BLLR 488 SCA
Sidumo v Rustenburg Platinum Mines Ltd (Rustenburg Section) [2007] 28 ILJ 2405 (CC)
Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie 2003 1 SA 11 (SCA)
Taylor v Minister of Education and Another 1996 (2) ZLR 772
Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC)
Total Zimbabwe (Pvt) Ltd v Moyana 2005 (1) ZLR 65 (S)
Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC).
ZESA versus Dera SC – 79 – 98
Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S) at H
Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR390 (S)
Zikiti v United Bottlers HH/60/98
8
Journal Articles
Anton Myburgh ‘Determining and Reviewing sanction after Sidumo’ ILJ, Vol 31, 2010
J Chelliah & P Tyrone ‘Power Sharing in Progressive Discipline: New Rules of Engagement
Arising from an Australian Perspective’ (2010) 6 CMR 91.
J Myburgh & A Van Niekerk ‘Dismissal as a penalty for misconduct: The reasonable
employer and other approaches’ (2000) 21 ILJ 2145
Leroux and Mischke ‘The Disciplinary Sanction: When is Dismissal Appropriate?’

Contemporary Labour Law 2006.
Nicola Smit ‘How do you determine a fair sanction? Dismissal as appropriate sanction in cases
of dismissal for (mis)conduct’ (2011) 44 (1) DE JURE 49
T Brodtkorb ‘Employee misconduct and UK unfair dismissal law: Does the range of reasonable
responses test require reform’ (2010) 52, 6 IJLMA 429, 440
Textbooks
A Basson, P.A.K Le Roux & E.M.L Strydom Essential Labour Law 5 ed (2009) 277
A.C. L. Davies ‘Perspectives on Labour Law’ 2004
A Van Niekerk Law at Work 1 ed (2008) 245
Brassy, Cameron, Cheadle et al, The New Labour Law: Strikes dismissals and the unfair labour
practice in South African Law ed (1987) 5
D Du Toit Labour Relations Law: A Comprehensive Guide 5 ed (2006) 397
George Markings Step by Step Discpline ed (2004) 43
Innocent Machingambi A Guide to Labour Law in Zimbabwe 1 ed (2007) 96
John Grogan, Workplace Law 10 ed (2010) 135
John Grogan Dismissal 1 ed (2013) 11
J V du Plessis, M A Fouche and MW van Wyk A Practical Guide to Labour Law 5 ed (2001)
277
Munyaradzi Gwisai Labour and Employment Law in Zimbabwe 1 ed (2006) 241
9
Patrick Lloyd Labour Legislation in Zimbabwe 2 ed (2006) 77
Important websites
www.saflii.org
www.zimlii.co.zw
10
List of acronyms
CCMA Commission for Conciliation Mediation and Arbitration
ESAP Economic Structural Adjustment Programme
S .I Statutory Instrument
SS Subsection
S Section
SALJ South African Law Journal
ILO International Labour Organisation
ILJ International Law Journal
LAC Labour Appeal Court
LC Labour Court
LRA Labour Relations Act
LA Labour Act
ZESA Zimbabwe Electricity Supply Authority
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TABLE OF CONTENTS
TITLE PAGE I
COVER SHEET II
APPROVAL FORM III
PLAGIARISM DECLARATION IV
DEDICATION V
ACKNOWLEDGMENTS VI
REFERENCES VII
LIST OF ACRONYMS XII
TABLE OF CONTENTS XIII
CHAPTER 1
Introduction …………………………………………………………………………… 1
1.1 Background to the study …………………………………………………………….. 1
1.2 Problem statement …………………………………………………………………... 2
1.3 Delimitation …………………………………………………………………………. 3
1.4 Research objectives …………………………………………………………………. 3
1.5 Research justification ……………………………………………………………….. 3
1.6 Literature review ……………………………………………………………………. 3
1.7 Research methods …………………………………………………………………… 6
1.8 Chapter Synopsis……………………………………………………………………. 6
CHAPTER 2
DISMISSAL UNDER COMMON LAW AND THE APPLICABLE
LEGISLATIVE FRAMEWORK
2.1 Introduction ………………………………………………………………………… 8
2.2 Common law approach to dismissal ……………………………………………….. 8
2.3 Background to Zimbabwean dismissal law after 1980 …………………………….. 10
2.4 Dismissal law under the ILO Conventions ………………………………………… 12
2.5 Statutory definition of dismissal in terms of section 12B of the Labour Act ……… 13
2.6 Conclusion …………………………………………………………………………. 14
CHAPTER 3
DISMISSAL AS A PENALTY FOR MISCONDUCT: THE APPROPRIATE
APPROACH
3.1 Introduction ……………………………………………………………………. 16
3.2 Labour (National Employment Code of Conduct) Regulations, 2006 ………… 16
12
3.2.1 Procedural requirements for termination and the hearing process ………… 17
3.3 Onus of proof in dismissal in dismissal disputes ………………………………. 18
3.4 Who makes the decision on whether the dismissal was an appropriate
penalty and therefore fair? ………………………………………………… 19
3.4.1 The reasonable employer test ……………………………………………. 20
3.5 When could a dismissal be a fair and proper penalty? …………………………... 23
3.6 Factors to be considered in the determination of an appropriate penalty .………. 24
3.6.1 Serious misconduct of such gravity to make a continued employment
relationship intolerable…………………………………………………… 24
3.6.2 Progressive discipline and the harm caused by the employee…………… 26
3.6.3 The employee’s length of service….. ..………………………………….. 29
3.6.4 Employee’s disciplinary record………………………………………….. 30
3.6.5 Consistency………………………………………………………………. 30
3.6.6 Admitting wrong-doing and showing remorse…………………………… 31
3.6.7 Gravity of the misconduct………………………………………………… 31
3.6.8 Nature of the job………………………………………………………….. 32
3.6.9 Conclusion………………………………………………………………… 32
CHAPTER 4
COMPARATIVE ANALYSIS: THE SOUTH AFRICAN APPROACH
4.1 Introduction………………………………………………………………………… 34
4.2 South Africa: Statutory provisions…………………………………………………. 34
4.3 Dismissal through the courts……………………………………………………….. 35
4.4 Conclusion………………………………………………………………………….. 37
CHAPTER 5
CONCLUSIONS AND RECOMMENDATIONS
5.1 Introduction………………………………………………………………………… 39
5.2 Concluding remarks………………………………………………………………… 39
5.2.1 Dismissal as a penalty for misconduct in light of the Constitution of
Zimbabwe Amendment (No. 20) Act, 2013……………………………………. 39
5.3 RECOMMENDATIONS…………………………………………………………. 40
5.3.1 Legal Reforms ………………………………………………………………….. 40
5.4 Conclusion………………………………………………………………………….. 42
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CHAPTER 1
INTRODUCTION
Dismissal refers to the termination of someone’s employment or repudiation of the contract of

employment by the employer. A dismissal has also been held to have taken place when the
contract of employment is terminated at the instance of the employer and entails some
communication by the employer to the employee that the contract has come to an end. 1There
is no statutory definition of “dismissal” in the Zimbabwean Labour Act2 although section 12B
provides different circumstances when dismissal may be deemed unfair.
Misconduct is the largely frequent justification for dismissal in Zimbabwe. Up till now no
comprehensive legal definition of the term has been provided for either in statute or common
law. Misconduct can take various forms, but the legal basis for dismissal for misconduct is the
same in all cases: employees concerned are deemed to have committed a breach of a material
term of their contracts or destroyed the employment relationship, which justifies its termination
by the employer.3 In labour law, misconduct is said to take place when an employee culpably
disregards the rules of the workplace.4 These rules may arise either from the express or the
implied terms of the employee’s contract.5
With disappointing frequency, employers and managers are confronted with the problem of
how to dismiss errant or ineffective employees.6 In any industry it is of utmost importance that
the issue of dismissal be dealt with in an appropriate manner for an improperly carried out
dismissal can prove costly, both in time and money, and may impact negatively on labour
relations and production.7 This paper is going to focus on dismissal as a penalty or a
determination after an employee has been found guilty of misconduct.
1.1 BACKGROUND TO THE STUDY
The answer to when an employee may safely be dismissed is far from simple. Superior courts
stand ready to pronounce on the fairness of such dismissals. They are all empowered to reinstate
unfairly dismissed employees or to order their employers to compensate them. The question of
1
John Grogan, Workplace Law, 10 ed, 2010, 135, Juta & Co Ltd, Cape Town
2
Chapter 28:01
3
John Grogan, Workplace Law, 10 ed, 2010, 135, Juta & Co Ltd, Cape Town
4
Op cit note 2 at 1
5
Op cit note 2 at 1
6
J Grogan, Dismissal, First Edition, 2013, 11, Juta & Co Ltd, Cape Town
7
Op cit note 6 at 1
14
whether dismissal is the appropriate sanction for misconduct is a factual one and remains, in
practice, one of the most difficult aspects of workplace discipline. The employer is supposed
to put forward evidence to sustain the allegation that dismissal was in fact an appropriate
sanction. This entails an onus of proof on the employer which it must discharge.
The law and principles pertaining to dismissals have undergone significant changes over the
past few years. The days of “hiring and firing” an employee arbitrarily are gone because the
courts emphasise the concept of fairness in case of dismissals. While the aforesaid statement is
true there is still debate on when it is proper to dismiss an employee. The Labour Act has made
significant strides in advancing employees’ cause in as far as termination of employment is
concerned.8 Section 12B of the Labour Act also provides that an employee found guilty has the
right to address the hearing officer in mitigation ‘before the ultimate penalty of dismissal is
imposed. However it is not clear on what basis ‘mitigation’ could affect the penalty imposed
on an employee found guilty of misconduct.
Prior to that common law imposed virtually no limitations to private sector employers to
dismiss their employees, whether for good reason, for no reason, or for the worst possible
reason. The Labour Act and Labour (National Employment Code of Conduct) Regulations,
2006 provides that whether or not a reason for dismissal is a fair sanction is determined by the
facts of each case and the appropriateness of dismissal as a penalty. It is the latter enquiry that
has proven particularly problematic.
1.2 PROBLEM STATEMENT
Despite having a progressive piece of legislation the courts have experienced difficulties in
deciding whether dismissal or some lesser sanction should be imposed for a case of proven
misconduct. The Zimbabwean courts have grappled with the determination of a definitive test
to determine the appropriateness of sanction. There has been conflicting judgments regarding
the determination of the appropriateness of the sanction and the correct legal tests to be applied.
Given this lack of clarity, it has been employees who have been at the receiving end of the
harsh penalties imposed for misconduct. Currently sections 3 and 7 of Statutory Instrument
(S.I.) Number 15 of 2006 (The National Employment Code) and section 12B (4) of the Labour
Act lays down some of the factors which must be taken into account in determining the
appropriate penalty. The list of factors laid down is by no means exhaustive and the application
8
Section 2A of the Labour Act states that the purpose of the Act is to advance social justice and democracy in
the workplace.
15
of the aforesaid provisions by our courts has been somewhat inconsistent leaving room for
diverging opinion on the topic.
1.3 DELIMITATION
This research paper will not consider the procedural fairness of a dismissal; I discuss only the
more limited issue of the fairness of dismissal as a sanction, given that the employer has
established the existence of misconduct. Other extraneous issues interrelated to dismissal will
only be considered in as far as they are related to the question of dismissal as a penalty.
1.4 RESEARCH OBJECTIVES
 To address the question of when dismissal could be deemed an appropriate sanction

and to consider how to approach the decision whether to impose dismissal as
sanction.
 To examine the final decision regarding whether or not dismissal was fair (i.e.
whether it was in fact the appropriate sanction).
 To make recommendations on how to determine where and when dismissal can be
deemed an appropriate sanction for a proven case of misconduct.
1.5 RESEARCH JUSTIFICATION
The rationale behind this research paper is to establish the essence of an “appropriate
penalty” for misconduct. It will consider the legal tests the courts have used in the past, as
well as consider the various factors the courts take into account when applying the test as
it currently stands. The aim of this paper is to shed light on the legal standard against which
the appropriateness of dismissals for misconduct is measured. Bearing in mind that
Zimbabwe adopted the legal test for the appropriateness of sanction from English law, there
will be consideration of the deficiencies in the English “reasonable employer” test, and why
this approach should be discarded.
1.6 LITERATURE REVIEW
The issue of the suitability of the sanction of dismissal for the particular contravention of a
rule or standard has been highly problematic. Zimbabwean legislation provides that the
penalty of dismissal is not obligatory and leaves the employer with the discretion of
16
whether or not to impose the penalty of dismissal.9 Our major text on labour and
employment law has dealt with this highly contentious issue on a piecemeal basis leaving
a lot of unanswered questions.10 Munyaradzi Gwisai11 is of the view that the factors laid
down in ss7 and 3 of the National Employment Code and section 12B (4) of the Labour
Act (Chapter 28:01) which are used in determining the appropriate penalty are adequate.
He goes on to point out that the factors are designed to ensure that the determination and
penalty are consistent with principles of fair and just dismissal under the Labour Act
Chapter 28:01 and International Labour Organisation Convention Number 15812 and
Recommendation Number 16613
Innocent Machingambi14 pointed out that in practice the penalties for dismissal have
ranged from verbal warnings to written warnings, fines and suspension with or without pay
or on reduced pay and ultimately dismissal. Patrick Lloyd15 is of the view that it is not
necessary to impose the most serious penalty (dismissal) provided for the offence in
question and a lesser penalty may be imposed. The author does not go on to elaborate where
and when the penalty of dismissal can be imposed. George Makings16 pointed out that in
deciding what disciplinary action to apply, the employer must take into account the offence
itself and weigh up the interests of the offending employee, of the employer and other
employees. He went on to say that mitigating and aggravating circumstances must be taken
into account. The author does not however address the burning question of when the
sanction of dismissal can be imposed.
John Grogan17 adopts the view that the requirements of a fair dismissal for misconduct is
that the dismissal must be an ‘appropriate’ remedy in light of the facts of the case. He went
on to state that the choice of the word “appropriate” reflects the difficulty the courts have
experienced in laying down the principles for deciding whether dismissal or some lesser
9
Marvo Stationary Manufacturing (Pvt) Ltd v Jokwani and Others 2005 (2) ZLR 261 (S), Murawo v Grain
Marketing Board 2009 (1) ZLR 304 (S) where the Supreme Court pointed out that there was no reason for
disturbing the findings of the Labour Court the conclusions reached cannot be described as being so
outrageous in their defiance of logic that no sensible person applying his mind to the questions to be decided
could have arrived at such conclusions.
10
Munyaradzi Gwisai, Labour and Employment Law in Zimbabwe, First ed, 2006, 241, Zimbabwe Labour Centre,
Harare.
11
Labour and Employment Law in Zimbabwe, ed, 2006, 128, Zimbabwe Labour Centre Harare
12
Convention concerning Termination of Employment at the Initiative of the Employer 1985
13
Recommendation concerning Termination of Employment at the Initiative of the Employer 1985
14
A Guide to Labour Law in Zimbabwe, ed, 2007, 96, I Machingambi Publications, Harare
15
Labour Legislation in Zimbabwe, 2 ed, 2006, 77, Legal Resources Foundation, Harare
16
Step by Step Discpline, ed, 2004, 43, Howard & Dean Co, Harare
17
John Grogan, Dismissal, ed, 2010, 11, Juta & Co Ltd, Cape Town South Africa
17
sanction should be imposed for a proven offence. The author goes on to say that the choice
of a sanction is not a matter of logic or law, in which it is possible to say that the decision
maker was right or wrong. The decision to dismiss is only interfered with if it was so
anomalous that it can be said that no reasonable person would have taken that decision in
those circumstances.
Another generally held view is that the level of punishment that an employer may consider
appropriate for a particular offence remains his prerogative.18 In other words the prescribed
penalty is the maximum permissible. What this means is that the employer through his
disciplinary committee has to decide whether to impose that maximum penalty or a lesser
one. J V du Plessis, M A Fouche and MW van Wyk19 are of the view that as a general rule
misconduct, or accumulated instances thereof, will be sufficiently serious to justify
dismissal if it renders the continued relationship between the employer and employee
intolerable. The author opines that there is no fixed rule to be applied when determining
whether to dismiss an employee. The issue of the appropriateness was therefore not
adequately addressed by the aforementioned authors.
In addressing the issue of dismissal as a proper penalty Annali C Basson, M A Christianson,

A Dekker et al20 pointed out that the courts previously used the “reasonable employer” test
to determine the fairness of a sanction. This meant that the reviewing court would be careful
to criticize the dismissal of an employee because it is primarily the function of the employer
to decide on a proper sanction.
Anton Myburgh21 advocates that the determination of an appropriate sanction involves a

value judgment on the part of the decision-maker. D du Toit et al22 adopts the position that
while the employer is entitled to discipline employees in cases of misconduct, dismissal is
justified if the reason for doing so is fair in relation to the nature of the conduct, more
particularly if there has been serious misconduct or repeated infractions. From an analysis
of the literature there appears to be a general consensus that employers should be slow to
impose the sanction of dismissal. No major articles have dealt with the issue of dismissals
18
Coh Coh Enterprises v Mativenga and Kusowa SC/30-2001, Zikiti v United Bottlers HH60/98
19
A Practical Guide to Labour Law, 5 ed, 2001, 277, Lexis Nexis Butterworths, Durban , South Africa.
20
Essential Labour Law, 5 ed, 2009, 123, Labour Publications, Cape Town
21
Determining and Reviewing sanction after Sidumo, ILJ, Vol 31, 2010.
22
Labour Relations Law, 5 ed, 2011, Lexis Nexis, 397
18
in the Zimbabwean context. The major theme of this paper is to fill the current vacuum and
traverse the issue of the penalty of dismissal.
The issue of dismissal as a penalty has also not been adequately addressed by our courts.
The inescapable conclusion is that there is a dearth of authority in local jurisprudence with
regard to this contentious issue. The South African Code of Good Practice is also a
progressive piece of legislation in as far as workers’ rights in cases of dismissals are
concerned.
The International Labour Organisation Conventions on termination of employment have

also provided guidelines on the determination of a penalty to be imposed following the
hearing process. It is also important to note that the current Zimbabwean Constitution23 had
made significant inroads into labour law and employment rights and will therefore be
deliberated in this paper.
1.7 RESEARCH METHODS.
Research on this paper will be library based through analysis of existing texts, articles
perusal of decided cases related to the sanction of dismissal, electronic journals, the internet
and other relevant sources. The Labour Act and other statutes dealing with labour law are
also going to be examined to ascertain the extent to which they address the issue of
dismissal as an appropriate sanction. There is also going to be a comparative analysis with
the South African position on the topic. International Labour Organisation Conventions on
Termination of Employment at the instance of the employer are also going to be considered.
1.8 CHAPTER SYNOPSIS.
CHAPTER 1
This chapter contains the introduction, background to the study, statement of the problem,
research aims and objectives, delimitation, research justification, research methodology and
literature review.
CHAPTER 2
The writer will examine the history of dismissal law in Zimbabwe. This will be followed by an
investigation of dismissal under common law. Space will be devoted to the International
23
Section 65 (1) of the Constitution provides that everyone has the right to fair and safe labour practices and
standards and to be paid a fair and reasonable wage.
19
Labour Organisation (ILO) Convention concerning Termination of Employment at the
Initiative of the Employer 1985 and the International Labour Organisation (ILO)
Recommendation concerning Termination of Employment at the Initiative of the Employer
1985 and how they impact the employer’s discretion to impose the sanction of dismissal. The
legislative history concerning the law of dismissal in Zimbabwe will also be dissected.
CHAPTER 3
This chapter will deal with, among other issues, the onus of proof in dismissal disputes and the
burden of proving the existence of a valid reason for imposing the penalty of dismissal. The
author will then address the question of how the employer will determine the appropriateness
of dismissal as a sanction and the factors which have to be considered before dismissing an
employee. Circumstances when the employer’s decision to dismiss is interfered with are also
going to be investigated.
CHAPTER 4
This chapter is reserved for a comparative analysis with the South African jurisdiction. The
analysis will mainly focus on judicial interpretation of the sanction of dismissal and the labour
law legislative framework governing the issue of dismissal as a proper sanction as opposed to
the Zimbabwean position. Comparison with the South African jurisdiction is premised on the
fact that we share the same common law, namely, Roman-Dutch common law. Both countries
also have a constitutionally guaranteed right to fair labour practices in their Constitutions which
has an impact on the issue of dismissal as a penalty.
CHAPTER 5
The author will pass concluding remarks and recommendations on how employers and the
courts can determine whether dismissal is the suitable penalty for a case of established
misconduct.
20
CHAPTER 2
DISMISSAL UNDER COMMON LAW AND THE APPLICABLE LEGISLATIVE

FRAMEWORK
2.1 INTRODUCTION
This part of the dissertation seeks merely to discuss the provisions of the law in general. There
will be an examination of the common law approach to dismissal, background to dismissal law
after 1980, dismissal under the ILO Conventions and statutory definition of dismissal under
section 12B of the Labour Act. A comprehensive analysis on dismissal as a sanction will be in
chapter three (3) where the way the courts have applied the law will be looked at.
2.2 COMMON LAW APPROACH TO DISMISSAL
Although the civil courts have begun to use the term ‘dismissal’, the word as stated above does
not occur in the language of common law.24 At common law a ‘dismissal’ is simply the
repudiation by the employer party to a contract of employment of its obligations under the
contract. Where the termination of the contract is not consensual, the employee has a choice of
either accepting the repudiation and suing for contractual damages or holding the employer to
the contract and suing for specific performance. Whether the dismissal in this sense occurs is
established according to the normal principles of contract. Dismissed employees may sue for
breach of contract only if by terminating the contract the employer has breached an express,
implied or tacit term of the contract.25 If the repudiation is lawful, the employee has no remedy.
Dismissal was not the only sanction available to the employer; he could impose other sanctions
such as suspensions insofar as his actions did not amount to a breach of contract (unlawful
conduct). In practice the employer was not limited to the penalties provided for in the contract
of employment and through his stronger bargaining power and the right to lawfully dismiss on
notice, the employer could in fact treat the employee unfairly as long as this did not breach the
terms of the employment contract.
24
Op cit note 11 at 4
25
SA Maritime Authority v McKenzie [2010] 5 BLLR 488 SCA
21
At common law the employer has a right to summarily dismiss an employee (dismissal without
notice) where there has been a material breach. As to what constitutes material breach, it was
explained by Korsah J, as he then was, in National Foods Ltd v Masukusa26 as “… the conduct
complained of must be such as to show that the employee disregarded the essential conditions
of his contract of service, express or implied, to such an extent that the substratum of employer-
employee relationship is destroyed.”
The common law provides very little safeguards for the job security of employees. The
employer enjoys unfettered power to terminate the contract at will, for no reason whatsoever
and without conducting a prior enquiry provided it gives the worker sufficient notice.27 The
arbitrary power which the employer has gives it massive influence to impose its terms in the
contract. The harshness of dismissal under the common law was succinctly captured by Brassy,
Cameron, Cheadle et al28 in the following words:
“The common law, in short, offers little protection against arbitrariness. It allows the party
with greater bargaining power to extract any bargain he wants, however oppressive, perverse
or absurd it may be, provided that it is not illegal or immoral. It allows him to change it when
it no longer suits him by threatening to terminate the relationship unless the other party submits
to that change. It allows him to flout the bargain whenever he likes provided that he does not
mind paying a paltry sum, which is invariably all the damages amount to. And all this (he) is
allowed to do without consulting the other party first, or paying him the slightest heed.
Fairness or unfairness of a termination by the employer is not taken into account under common
law as the employer is not required to give the employee a reason for the termination and there
is no real requirement that the dismissal must be fair.29 In terms of common law the employer
could dismiss the employee merely by giving the required notice. The employer could
summarily dismiss (dismissal without notice) if the employee’s conduct is serious, for example
in cases of theft and assault.30
The employer’s almost unlimited common law right to dismiss was the foundation of the
employer’s power to make rules and enforce discipline at the workplace.31Apart from the
26
SC 230/93
27
Op cit note 15 at 8
28
Brassy, Cameron, Cheadle et al, The New Labour Law: Strikes dismissals and the unfair labour practice in
South African Law (1987) 5
29
Annali Basson, Marylyn Christianson, Adriette Dekker et al, Essential Labour Law, 5 ed, 2010, 81
30
Op cit at 32
31
Op cit at 32
22
impact of labour legislation, as discussed in this chapter, the common law is gradually also
experiencing the effect of the Constitution. The constitutional right of everyone to fair labour
practices enshrined in section 65 (1) of the Constitution means that an employee has a
fundamental right not to be unfairly treated. The Labour Act explicitly states that every
employee has the right not to be unfairly dismissed32 and subjected to unfair labour practices.33
The appropriateness of dismissal will therefore be viewed in light of the Constitutional right to
fair labour practices.
2.3 BACKGROUND OF ZIMBABWEAN DISMISSAL LAW AFTER 1980
It is imperative to provide a general outline the previous law in order to provide insights into
the existing law.
The history of termination law in Zimbabwe has been lengthy and complex. Up to the time of
national independence, common law prevailed as colonial legislation did not provide for
regulation of dismissals.34 Colonial labour law legislation entrenched the employer’s unfettered
discretion in as far as dismissal was concerned. The first statutory intervention after
independence was the Employment Regulations of 1980, which supposedly outlawed the
employer’s common law right to terminate the employment contract at will.35 In 1982 the state
promulgated the Emergency Powers (Termination of Employment) Regulations S.I. 714 of
1982. The Labour Relations Act (LRA) [Chapter 28:01] of 1985 provided a firmer foundation
for the law of fair dismissal.
In Art Corporation v Moyana36, the court acknowledged that the principal objective of the LRA
was to “improve the lot employees” including job security. In terms of section 17 (3) (q) of the
then LRA the Minister was empowered to make regulations providing for, inter alia, the
“protection of employment” and “restricting the circumstances in which employers may
suspend or terminate the employment of their employees” summarily or otherwise. The Labour
Relations (General Conditions of Employment) (Termination of Employment) Regulations,
S.I. 371 of 1985, were subsequently promulgated. Their provisions and make-up displayed an
impression of the International Labour Organisation (ILO) standards.
32
Section 12B (1) of the Labour Act
33
Section 8 of the Labour Act
34
Munyaradzi Gwisai, Labour & Employment Law in Zimbabwe, 1 ed, (2006) 162.
35
Op cit note 15 at 8
36
1989 (1) ZLR 252
23
The regulations were the first comprehensive attempt at protecting employees from unfair
dismissal and the arbitrary power of the employer, substituting this with state regulation.37 The
basis for state intervention is rooted in both the libertarian perspective and the social justice
perspective in labour relations. Those in favour of intervention root their arguments on the
importance of work to an individual and postulate that employees acquire rights to their jobs
which is akin to ownership rights.38 Others argue that individual dignity and autonomy are the
primary justifications for unfair dismissal laws. Protection of employees against unfair
dismissal through labour legislation has also largely been influenced by international labour
standards made under the auspices of ILO.
In relation to termination for misconduct, the regulations specified the grounds of serious
misconduct on which termination could be approved. Approval of termination became the
prerogative of state officials, labour relations officers, with employer’s power limited to
suspension. These regulations signalled a major advancement towards the protection of
employees from arbitrary action by employers as the employer did not have the powers to
impose the sanction of dismissal. Nevertheless, M Gwisai39 opines that there were a number of
problems in relation to job security under the regulations. For instance the author highlighted
that the regulations did not provide for an express right to protection from unfair dismissal.
It was also held that the Regulations did not apply to dismissal of employees of urban local
authorities, statutory bodies and did not override common law principles.40 In the late 1980s
employment regulations became pro-employer under the Economic Structural Adjustment
Programme (ESAP). Strict state control was replaced by a system of labour autonomy based
on state registered employment codes under the Labour Relations (Employment Codes)
Regulations, S.I. 379 of 1990 and subsequently section 101 of the LRA. Employers enjoyed a
preponderant authority in the creation of the codes. The Regulations remained in parallel with
the new system where there were no employment codes or a residual back up. However the
Regulations were altered by the promulgation of the Labour Relations (General Conditions of
Employment) (Termination of Employment) Regulations, S.I. 130 of 2003 which came into
force on 07 March 2003. The regulations had a short lifespan as they were quickly repealed
and replaced by Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006.
37
Op cit note 15 at 8
38
Davies, Perspectives on Labour Law, 2004
39
Op cit note 15 at 8
40
City of Mutare v Mutamisa 1998 (1) ZLR 512 (S)
24
Some of the objectives of S.I 15 of 2006 include providing machinery for careful investigation
of offences before corrective/disciplinary action can be administered41 and to ensure equating
an offence to the resultant corrective action allowing for mitigation or aggravating factors.42
On the question of dismissal S.I. 15 of 2006 provides that the dismissal penalty to be imposed
for an offence is not obligatory but is meant as a guide to employers and an employer may, at
his or her discretion apply a lesser penalty for example, a written warning.43
The present stage is that represented by the current Labour Act44 of 2002 which introduced
general rights to protection from unfair dismissals, the supremacy of the LA over all other
enactments and the advancement of social justice and democracy in the workplace through the
promotion of fair labour standards and the just, effective and expeditious resolution of disputes.
2.4 DISMISSAL LAW UNDER THE INTERNATIONAL LABOUR ORGANISATION

CONVENTIONS
A meaningful study of our dismissal law is not possible without at least a basic understanding
of international labour standards which have shaped our domestic unfair dismissal law. The
main principles concerning dismissal under ILO jurisprudence are set out in Convention 158
(1982) and Recommendation 166. The Convention was adopted on 22nd June 1982. Despite
the fact that Zimbabwe as a nation has not yet ratified the Convention, it has had a profound
effect on our dismissal law. The right against unfair dismissal in our Labour Act bears a clear
imprint of the Convention. In addition our courts have referred to the Convention in interpreting
and applying the statutory protection against unfair dismissal. The provisions of Convention
158 and Recommendation 166 are encompassed in the dismissal framework under the Labour
Act45 and S.I. 15 of 2006. The principles have also become part of customary international
labour law and incorporable in our law as part of customary international law.
A dismissal may only be accepted as fair if it is substantively and procedurally fair. Article 9
of Convention 158 states that the burden of proving the existence of a valid reason for dismissal
shall rest with the employer and that a determining authority shall be empowered to examine
the reasons given for termination and the other circumstances relating to the case and render a
decision on whether the termination was justified.
41
Section 3 (a) of Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006
42
Section 3 (b) of Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006
43
Section 7 (3) of Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006
44
Chapter 28:01
45
Chapter 28:01
25
Article 7 of Recommendation 166 provides that termination is not warranted for a type of
misconduct that is normally punishable by dismissal only if repeated on one or more occasions,
unless the employer has given the worker appropriate written warning. Gwisai46 is of the view
that the provisions of the ILO Conventions have a number of implications like that there must
be a justifiable and valid reason for termination. This denotes that the common law right of the
employer to terminate at will is extinguished. The other implication which the author identifies
is that termination must be a sanction of “last resort.”
2.5 STATUTORY DEFINITION OF DISMISSAL UNDER SECTION 12B OF THE

LABOUR ACT47
It is apposite at the onset to start with the discussion of section 65(1) of the Constitution which
provides that; “every person has a right to fair and safe labour practices and standards …”
The rights are integrated in our labour legislation, namely, the Labour Act which gives effect
to the all-embracing right by providing for specific rights. One of the most essential right in
the Labour Act which gives effect to the Constitutional right to fair labour practices in section
65 (1) is the right to protection against unfair dismissal in section 12B of the Labour Act. In
terms of section 12B (1) of the Act; “Every employee has a right not to be unfairly dismissed.”
The Act does not define what is meant by the term ‘dismissal’ or ‘unfair dismissal’, but it
provides different circumstances when a dismissal may be held or deemed to be unfair.48 This
section is also inspired by ILO Convention on Termination of Employment at the Instance of
an Employer (C 158 of 1982). The provision is also read with section 5 of the National
Employment Code (S.I. 15 of 2006)49 and section 2A of the Act50 which has a strong bearing
on the aspect of dismissal. The statutory definition in section 12B (2) and (3) is broader than
the common law definition or concept of termination of employment. The common law has
been drastically modified by principles of unfair dismissal in labour legislation. In laying the
46
Op cit note 15 at 8
47
Chapter 28:01
48
Section 12B (2) (a) provides that an employee is unfairly dismissed if the employer fails to show that he
dismissed the employee in terms of an employment code and (b) in the absence of an employment code, the
employer shall comply with the model code made in terms of section 101(9) . Section 12B (3) (a) also provides
that an employee is unfairly dismissed if the employee terminated the contract of employment with or
without notice because the employer deliberately made continued employment intolerable for the employee
or (b) if, on termination of an employment contract of fixed duration, the employee (i) had a legitimate
expectation of being re-engaged; and (ii) another person was engaged instead of the employee.
49
Section 5 of the National Code provides the circumstances under which an employer may terminate a
contract of employment.
50
Section 2A sates the purpose of the Labour Act as to advance social justice and democracy in the workplace.
26
general principle on dismissal in labour legislation the Supreme Court in Four Seasons Foods
(Pvt) Ltd v Mutsvakanhau51 specifically stated that;
“The contract of employment is a special type of contract governed by the Labour Act [Chapter
28:01] (the Act) and the Regulations made there under. The contract cannot therefore be
terminated unless the provisions of the Act and the Regulations governing the termination of a
contract of employment have been complied with.”
Consequently, for a dismissal to be fair it must be within the confines of section 12B (2) and
(3) of the Act and section 5 of the National Code. What section 12B provides for is that
employees can only be legitimately dismissed as opposed to being retrenched, resigning, death,
termination on medical grounds in any one of the ways provided for in s12B (2) and (3) as well
as s5 of the National Code. If a dismissal is effected outside the parameters of the
abovementioned provisions then it is an unfair dismissal and the onus to show that the dismissal
is on the employer.52 Section 12B of the Act provides different circumstances in which an
employee can be said to have been unfairly dismissed. These will be traversed in Chapter (3)
Three of this paper.
2.6 CONCLUSION
In this chapter it has been highlighted that the common law approach to dismissal was heavily
biased in favour of the employer and the employee was at the mercy of his master at all times.
The employer had almost unfettered discretion to impose dismissal as a penalty for misconduct.
The author then went on to analyse the background to dismissal law after 1980 where it was
brought to light that the common law was drastically modified by statutory intervention which
sought to protect employees from unfair dismissal and the arbitrary power of the employer to
terminate the contract of employment.
The international labour standards also had a major influence on our dismissal law as they put
a major emphasis on substantive and procedural fairness as regards termination of employment.
The final portion of this chapter was devoted to the statutory definition of dismissal wherein it
was discovered that no express definition of dismissal is provided for in the Labour Act and
S.I.15 of 2006. The statutory definition of dismissal under ss 12B (2) and (3) of the Labour Act
has been shown to be broader than the common law concept of termination of employment.
51
SC – 44 - 09
52
Community Trust v Claudious Chemhere SC 22 – 13, AugustineTirivangana v UZ SC – 21 – 13 and Taylor v
Minister of Education and Another 1996 (2) ZLR 772
27
Having provided the common law and legislative background for our dismissal law, chapter
(3) three is going to dwell on the impact of S.I. 15 of 2006 on our dismissal law, the issue of
onus of proof in dismissal disputes, the reasonable employer test and the circumstances when
dismissal could be deemed an appropriate sanction together with the factors which are taken
into consideration to determine the appropriate penalty in cases of proven misconduct.
28
CHAPTER 3
DISMISSAL AS A PENALTY FOR MISCONDUCT: THE APPROPRIATE

APPROACH
3.1 INTRODUCTION
In chapter (2) two the common law and legislative background of our dismissal law was laid
down. Against such background, this chapter seeks to address the question of when and where
dismissal can be imposed as a penalty for misconduct. The aforesaid question will be answered
through an examination of S.I. 15 of 2006 as read with section 12B (4) of the Labour Act as
the major pieces of legislation dealing with the issue of dismissal. Afterwards the author will
explore the issue of onus of proof in dismissal disputes. Thereafter there will be an analysis of
the reasonable employer test as applied in the English and South African jurisdictions as well
as its adoption and application by Zimbabwean courts. Finally the writer will consider the
factors which are taken into account in determining whether or not the penalty of dismissal can
be imposed in a case of proven misconduct.
3.2 LABOUR (NATIONAL EMPLOYMENT CODE OF CONDUCT) REGULATIONS,

2006
The most comprehensive and generalised treatment of the principles of fair dismissal under the
Labour Act (LA) is provided for under the Labour (National Employment Code of Conduct)
Regulations, S.I. 15 of 2006. Such is its impact and far-reaching ramifications that the author
is going to use it as the benchmark or the model code of conduct for the purposes of this study.
The writer has adopted the aforesaid position while fully cognisant of the fact that the National
Code is only used where there is no specific code of conduct for a certain undertaking.
The National Code can only be invoked where there is no registered code of conduct in
existence in terms of section 12B (2) of the Act read with section 5(a) and (b) of the National
Code. Termination under the Code can only be invoked where the employee has committed an
act of misconduct. The acts of misconduct are specifically provided for in section 4 (a) – (h).
It is only when an employee is in beach of section 4 that the employer can bring into play the
disciplinary processes in the National Code.
The objectives of S.I.15 of 2006 has been, inter alia,
29
a. to provide machinery for careful investigation of offences before
corrective/disciplinary action can be administered; or
b. to ensure consistency and prompt action by the responsible/administering official or
committee on issues concerning discipline; or
c. to ensure equating an offence to the resultant corrective action allowing for mitigation
or aggravating factors; or
d. to provide guidelines on procedural and substantive fairness and justice in handling
disciplinary matters at the workplace.
3.2.1 Procedural requirements for termination and the hearing process
The initial step is suspension. It is a disciplinary action short of dismissal and it precedes
disciplinary enquiry. In terms of section 6 (1) of the Code the employer shall forthwith serve
the employee with a letter of suspension. Section 6 (2) of the Code then provide that the hearing
must be conducted within fourteen (14) days of the letter of suspension. In relation to the
hearing section 6 (4) (a) of the Code an employee is entitled to three working days notice of
the hearing.53 In terms of section 6 (4) (b) an employee has a right to appear in person or to be
represented by a fellow worker or legal practitioner. Section 6 (4) (c) provides for a right to
call witnesses and have them cross-examined and section 6 (4) (d) states that the employee has
a right to be informed of reasons for the decision reached.
In terms of section 6 (4) (e) an employee who is found guilty of misconduct, with which he is
charged, must be given an opportunity to address in mitigation before the ultimate penalty is
imposed. Issues to be covered under mitigation are provided for under section 12B (4) of the
Act.54 As regards determination section 6 (2) states that at the conclusion of the hearing the
employer may either terminate the employee’s contract of employment if the grounds of
suspension are proven or reinstate the employee if the grounds are not proven. On penalties ss
3 and 7 of the Code read with s12B of the Act provide for factors which must be taken into
account before an appropriate penalty is imposed. The penalties range from warnings to
53
In Majurira v Tredcor Zimbabwe (Pvt) Ltd SC- 48/13 it was held that for proceedings to be nullified a failure
to give adequate notice one must show that the irregularity is fatal and prove prejudice.
54
The factors include; 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.
30
dismissal. Dismissal does not always follow an act of misconduct warranting dismissal.
Circumstances of the case prescribe the appropriate penalty.55
3.3 ONUS OF PROOF IN DISMISSAL DISPUTES
Although the Labour Act does not prescribe the standard of proof to be used in labour matters,
it is universally accepted that evidence must be evaluated according to the test used in civil
matters, namely, proof on a balance of probabilities. Administrative proof on a balance of
probabilities means that one has to look at the pros and cons of the evidence presented in
support of the allegation, and balance them against the pros and cons of the evidence presented
in denial of the charge and do a fairly simple exercise of matching the stronger points against
the weaker points.56 Then decide on that balance of probabilities whether or not the accused
employee is guilty. The Supreme Court in the matter of ZESA versus Dera57 held that the onus
of proof in disciplinary matters, being quasi-judicial proceedings is always on “a balance of
probabilities. Nevertheless, in allegations of misconduct which involve criminal connotations
such as theft our courts have ruled that such allegations must be proved beyond reasonable
doubt.58
In addition the courts have pointed out that in civil disputes he who alleges anything against
another person must prove such allegation.59 Consequentially the employer as the party who
prefers misconduct charges against the employee has the burden of proving that the employee
is guilty of contravening a workplace rule. The Labour Act60 does not deal specifically with
the issue of onus of proof in cases where an unfair reason for dismissal is alleged. Be that as it
may, a reading of section 12B (2) (a) of Labour Act leads to the conclusion that it is the
employer upon whom the onus of proving the fairness of a dismissal rests. Section 12B (2) (a)
provides that: An employee is unfairly dismissed—
(a) if, subject to subsection (3), the employer fails to show (underlining is mine) that he
dismissed the employee in terms of an employment code.
55
Marvo Stationary Manufacturing (Pvt) Ltd v Jokwani and Others 2005 (2) ZLR 261 (S), Dalny Mine v Banda
199 (1) ZLR 221 (H) and Murawo v GMB 2009 (1) ZLR 304 (S)
56
George Markings, Step by Step Discipline – From Code of Conduct to Termination of Employment, 2004, p19
57
SC/79/98
58
Astra Industries Limited v Chamburuka SC – 27 - 12
59
Zimasco (Pvt) Ltd v Chizema, 2007 (2) ZLR 314 (S) at H
60
Chapter 28:01
31
The employee therefore must prove the existence of a dismissal which is a matter of fact and
the burden shifts to the employer regarding the fairness of the dismissal. Grogan61 is of the
view that by placing the onus on the employer to prove that a dismissal was fair, the courts
appear to have reversed the general principle that a person who claims a legal entitlement
should prove the factual basis of that claim. If there is no dispute about the fact of transgression
of a workplace rule (i.e. misconduct was proven) the employer still has to prove that the
dismissal was substantively fair, that is, it was the appropriate sanction for the misconduct in
question.62 The employer has the burden of proof in the sense of a persuasive burden - it must
place enough material and facts before the decision maker to persuade such person that the
sanction of dismissal was fair.
In National Union of Mineworkers v Commission for Conciliation Mediation and Arbitration

(CCMA)63 the court stated that:
“It is trite that in a dismissal case the employer bears the onus of showing that the dismissal
was fair. Thus the starting point for a commissioner in assessing the versions presented by the
parties during the arbitration hearing is to determine the extent to which the employer's version
is more probable than not.”
In Total Zimbabwe (Pvt) Ltd v Moyana64 the court held that what the court should determine is
whether the evidence adduced by the employer has on a balance of probabilities proved the act
of misconduct charged against the employee. Put differently the chairperson of a disciplinary
inquiry can no longer deal with the issue of sanction on a cursory basis. In Early Bird Farms
(Pty) Ltd v Mlambo65 the court held that the employer did not have to prove with absolute
certainty that the employee was guilty of the alleged misconduct but that proof on a balance of
probability was sufficient. In Mashava v Cuzen & Woods Attorneys66 the court held that once
the applicant had made out a prima facie case, it was for the employer to prove that the
employee was dismissed for a reason that is not unfair.
3.4 WHO MAKES A DECISION ON WHETHER THE DISMISSAL WAS AN

APPROPRIATE PENALTY AND HENCE FAIR?
61
Op cit note 14 at 5
62
Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie 2003 1 SA 11 (SCA) par 5
63
[2010] 6 BLLR 681 (LC)
64
2005 (1) ZLR 65 (S) at D
65
[1997] 5 BLLR 541 (LAC) at 544,
66
(2000) 21 ILJ 402 (LC)
32
In terms of section 5 (a) of the National Employment Code of Conduct no employer shall
terminate a contract of employment with an employee unless the termination is done in terms
of an employment code which is registered in terms of section 101(1) of the Labour Act; or (b)
in the absence of the registered code of conduct mentioned, the termination in terms of the
National Employment Code of Conduct. From the provisions of the National Employment
Code of Conduct it is evident that employers set reasonable standards of conduct in the
workplace and may enforce such standards.
Despite the fact that an employer may enforce discipline in its workplace and may dismiss an
employee for misconduct, the dismissal must be substantively fair, that is, it must be the proper
penalty in the circumstances. In addition, it is still rather controversial whether an employer
knows best when deciding on the appropriate sanction for transgression of a workplace rule.
The Zimbabwean Supreme Court has admitted that there is no fixed rule of law defining the
degree of misconduct which will justify dismissal.67 This is regrettable as the courts are
required to ensure that those responsible for decisions to dismiss employees have exercised
their discretion fairly and reasonably.
3.4.1 The Reasonable Employer Test
Generally Zimbabwean courts have adopted the approach that dismissal is proper as long as
conduct complained of goes to the root of the employment relationship. It has been held that
courts must recognise that the discretion to impose a sanction for proven misconduct rest in the
first instance with the employers and courts will only intervene if the decision is manifestly or
demonstrably unfair. Employers enjoy a measure of discretion as to the penalty to be imposed
for misconduct. Our courts employ what is commonly known as the ‘reasonable employer test’
and will not interfere with the exercise of the discretion by the employer unless it is shown that
the discretion was exercised, improperly, unreasonably or unfairly. 68 In Robert Musomekwa v
BP & Shell Marketing69 the court held that for an appeal court to interfere with the factual
findings of a trial court the decision must be shown to have been “… so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who has applied his
mind to the question to be decided could have arrived at it.” This goes to show the undue
67
Murawo v Grain Marketing Board 2009 (1) ZLR 304 (S) at A
68
Passmore Malimanji v CABS SC – 47-07, Langton Mapurisa v City of Masvingo LC-MS-05-14, Hama v NRZ
1996 (1) ZLR 58 (S)
69
LC/H/12/09
33
deference by the courts towards the discretion of the employer in matters of workplace
discipline.
In Malimanji v CABS (supra) the appellant was found guilty of misconduct and dismissed. He
appealed against the penalty of dismissal to the Supreme Court which held that the issue of
what punishment to impose is one of discretion. The Supreme Court further held as follows;
“It is trite that an appeal court does not interfere with the exercise of discretion by a lower
court unless it is shown that the discretion was improperly exercised. As contented for the
respondent, the penalty imposed must show a serious misdirection to justify interference by the
appeal court…”
In Zimbabwe Alloys Ltd v Muchohonyi70 the Supreme Court said; “… the determination of the
appropriate penalty was a matter within the discretion of the President of Labour Court and
that this court does not normally interfere with the exercise of judicial discretion unless there
is a valid basis for doing so…”
The above decisions reflect the fact that Zimbabwean courts have consistently applied the
reasonable employer test in determining whether dismissal or some other sanction should be
imposed for a case of proven misconduct. It is this undue deference to the employer’s power
to impose the dismissal penalty that the author finds issue with as it is not in line with the
constitutional right to fair labour practices and the social justice doctrine under the Labour Act.
The analysis looks at the perspective of the reasonable employer and incorporates a
hypothetical and objective test in determining the fairness of the dismissal. This test was
developed in the United Kingdom. The inquiry into the appropriateness of sanction has often
instigated a debate as to the question when an arbitrator may intervene and interfere with the
decision of the employer to dismiss. Le Roux points out the crux of this controversial debate
with reference to opposing viewpoints on the matter:
“Supporters of some form of deference to managerial decisions in this regard point out that,
in the absence of bias on the part of the employer, there is no good reason why the value
judgement of a third party as to whether the dismissal is justified should override the value
judgement of a manager who knows and understands the needs and circumstances of the
employer‘s business or organization. Detractors point out that too great a deference to
70
2006 (1) ZLR390 (S)
34
managerial decisions in this regard would undermine the protection against unfair
dismissals.”71
The classic formulation of the reasonable employer test was enunciated by Lord Denning in
British Leyland UK Ltd v Swift72 as follows:
“There’s a band of reasonableness, within which one employer may reasonably take one view:
another quite reasonably take a different view. One would quite reasonably dismiss the man.
The other would quite reasonably keep him on. Both views may be quite reasonable. If it was
quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some
other employers may not have dismissed him.”
The court went on to state that in all cases there is a band of reasonableness within which one
employer might reasonably take one view and another employer reasonably take a different
view. In applying the “reasonable employer test”, the decision of a specific employer to dismiss
is compared to the objective standard of a reasonable employer. The test does not evaluate the
possibility of substituting the sanction for a more suitable one but rather focuses on
reasonableness of the employer‘s specific decision to dismiss. It is submitted that this approach
gives too much discretion to employers and as a result unfair dismissal law offers too little
protection for employees.
In considering exclusively the point of view of the employer and equating the employer‘s idea
of reasonableness with that of fairness; the courts have developed an excessively deferential
approach towards the employer in the assessment of an appropriate penalty. It has been argued
that the range of reasonable responses approach, by deferring to employer discretion, deprives
industrial tribunals of the opportunity to curb management prerogative and fully consider the
interests of employees or the public.73
It is deplorable that the approach makes no reference to the perspective of the employee as
inherently the contract of employment is akin to that of a master and servant. This is
fundamentally repugnant to the concept of fairness; which calls for the balancing of competing
interests of the employer and employee. The employee is in a weaker position and should not
71
Leroux and Mischke, The Disciplinary Sanction: When is Dismissal Appropriate, Contemporary Labour Law,
2006.
72
[1981] IRLR 91
73
T Brodtkorb, Employee misconduct and UK unfair dismissal law: Does the range of reasonable responses test
require reform‘ (2010) 52, 6 IJLMA 429, 440.
35
be subjected to further prejudice by applying the archaic and palpably unfair “reasonable
employer test” when determining the appropriateness of dismissal as a penalty.
On this test, interference with the sanction of dismissal is only warranted if no reasonable
employer could ever have imposed it. Applied in this way, the most uncompromising or
strictest employer becomes the yardstick and the test is heavily weighed down in favour of
employees.74 It is submitted that the reasonable employer test should not be the yardstick as
employees are a vulnerable group in society and thus deserving of protection. Dismissal should
be the ultimate penalty. In failing to balance the opposing interests of both the employer and
the employee, the reasonable employer test amounts to a greatly deferential approach to the
employer‘s “say so”, with tribunals rubber stamping an employer‘s decision on the basis that
it is not patently unreasonable.75 By disregarding the employee‘s point of view it first of all
undercut the harmonization of competing interests related to the concept of fairness and it
secondly fails to provide a satisfactory restraint on the employer‘s managerial privilege to
impose a sanction under the broad range of reasonableness. In terms of section 7 (3) of the
National Employment Code of Conduct the employer enjoys an unfettered discretion in
determining an appropriate penalty including dismissal. In determining the fairness of a
dismissal, Zimbabwean courts seem to approach the matter from the perspective of the
employer.76
It is argued that rather than to defer to the decision of the employer the upper tribunal must
consider all relevant circumstances. The appellate court should not be given the power to
consider afresh what the employer would do, but simply to decide whether what the employer
did was fair. Therefore as long as the decision is one that a reasonable decision maker could
make a court would not interfere. This will ensure that, more than before, and in line with the
objectives of the Labour Act and particularly the principles of fair dismissal, fair labour
standards and the just and effective resolution of disputes under section 12B (1) and section
2A of the Labour Act as read together with the provisions of ILO Convention 158 awards of
disciplinary tribunals will be final and binding. This should be so as long as it cannot be said
that such a decision or award is one that a reasonable decision maker could not have made in
the circumstances of the case.
74
Anton Myburgh, Determining and Reviewing Sanction after Sidumo, ILJ Vol 31, 2010
75
Brodtkorb op cit note 54 at 17
76
Op cit note 61 at 18
36
3.5 WHEN COULD A DISMISSAL BE A FAIR AND PROPER PENALTY?
This is perhaps the most complex feature of workplace discipline. The National Code provides
factors that must be taken into account in determining an appropriate penalty in sections 3 and
7.77 The National Employment Code heavily leans in favour of corrective or progressive
discipline meaning that the purpose of discipline is viewed as a means for employees to know
and understand what standards are required of them. A perusal of cases decided in our
jurisdiction and sections 3 and 7 of the National Employment Code as read with section 12B
(4) of the Labour Act reveal the fact that the courts are guided by different factors in
determining whether dismissal is the appropriate penalty for an employee guilty of misconduct.
These factors do not represent a closed list and the weight that should be attached to each factor
would differ from case to case. These are; nature and gravity of the misconduct, the long-
service record of the employee, disciplinary record, the importance of the rule that was
breached, harm caused by the employee's conduct, the reason the employer imposed the
sanction of dismissal, whether additional training and instruction may result in the employee
not repeating the misconduct and other relevant considerations. It therefore appears that an
employer must firstly point out that the misconduct in question is serious and grave to the
extent that it makes the employment relationship intolerable. In addition to this the employer
must then proceed to show that it had considered all relevant factors and that dismissal was still
considered to be the appropriate sanction.
3.6 FACTORS TO BE CONSIDERED IN THE DETERMINATION OF AN

APPROPRIATE PENALTY
3.6.1 Serious Misconduct of such Gravity to Make a Continued Employment

Relationship Intolerable
77
Section 3 of the National Employment Code provides that one of the objectives of the Code is to ensure
equating an offence to the resultant corrective action allowing for mitigation or aggravating factors. Section 7
(1) of the Code states that disciplinary action should, in the first instance, be educational and then corrective.
Punitive action should only be taken when the said earlier steps have proved ineffective. Section 7 (2) states
that as far as is possible similar offences committed in similar circumstances should be treated equitably
through the award of similar penalties allowing for mitigating and aggravating circumstances. Section 7 (3)
states that the dismissal penalty is not obligatory but is meant as a guide to employers and an employer may,
at his or her discretion apply a lesser penalty for example, a written warning.
37
In National Foods Ltd v Masukusa78 it was held that the conduct complained of must be such
as to show that the employee disregarded the essential conditions of his contract of service,
express or implied, to such an extent that the substratum of employer-employee relationship is
destroyed. The court went on to say that dismissal is also justified where the employee has
engaged in misconduct inconsistent with the due and faithful discharge of his duty to the
employer or prejudicial to the business of the employer. In Murawo v Grain Marketing Board79
it was held that misconduct inconsistent with the express or implied conditions of service will
justify dismissal.
The impact of misconduct on the relationship of trust is not considered in isolation but in the
acknowledgment that it relates to all the factors the court is obliged to take into deliberation
when determining the fairness of sanction. That gross dishonesty is generally accepted as
conduct warranting dismissal does not obviate the need to establish the appropriateness of
sanction in each case, general assumptions will not suffice.80 In Central News Agency (Pty) Ltd
v Commercial Catering and Allied Workers Union and Another81 the employee had stolen five
films valued at R50, 00 in total from the employer. De Klerk J, as he then was, held that:
“Appellant terminated its contractual relationship with second respondent as it was entitled to
do because of the breach by second respondent of a basic tacit term of the contract of
employment, i.e. that the employee would not steal from the employer and that the employee
would not breach the position of trust in which he had been placed by being allowed into
appellant's store room. In my view it is axiomatic to the relationship between employer and
employee that the employer should be entitled to rely upon the employee not to steal from the
employer. This trust which the employer places in the employee is basic to and forms the
substratum of the relationship between them. A breach of this duty goes to the root of the
contract of employment and of the relationship between employer and employee.”
What can be gathered from this judgment is that theft, and inherent dishonesty associated with
theft, are entirely destructive of the relationship of trust. Consequently once the basis of the
relationship has been severely damaged then dismissal will be justified.
78
79
2009 (1) ZLR 304 (S)
80
A. Niekerk, Law at Work, 2011, ed, Lexis Nexis
81
(1991) 12 ILJ 340 (LAC)
38
In Acklam v Sentinel Insurance Co Ltd82 Salmon J, as he then was, stated, “One can well
understand that a position may arise where the employer will come to the conclusion that he
cannot continue with the man any longer.”
In a case dating back to 1996, the South African Appellate Division held in Council for
Scientific and Industrial Research v Fijen83 that it is well established that the relationship
between employer and employee is "in essence one of trust and confidence." It also stated that,
at common law, conduct clearly inconsistent with such trust and confidence entitled the
"innocent" party to cancel the agreement.
The court referred to an old decision of the Supreme Court of the Transvaal dating back to
1908. In Angehrn and Piel v Federal Cold Storage Co Ltd,84 a case concerning misconduct and
breach of faith, it was held that "trust and confidence were of the essence of the relationship
which existed between each ... [employee] and his employer". As to what is required of an
employee in an employer-employee relationship the court noted that it includes;
“to be just and faithful to the company, that is to say, conduct in its service with diligence,
integrity and single-mindedness and generally in such a way as to show that the confidence
intended by the contract [i.e. the contract of employment] could be safely reposed in them.”
In Humphries & Jewell (Pty) Ltd v Federal Council of Retail & Allied Workers Union &
Others,85 the court pointed out that the relationship of trust, mutual confidence and respect
"which is the very essence of a master-servant relationship" cannot continue where there was
gross insubordination. This writer concur with the position adopted in the Humphries Case
(supra) since where the trust relationship has been breached it will normally be considered a
material breach of an essential term that may justify dismissal.
3.6.2 Progressive Discipline and the harm caused by the misconduct
Section 7 (1) of S.I. 15 of 2006 expressly stipulates that disciplinary action in the first instance
should be educational then corrective and only punitive action taken in the failure of such steps
and that the dismissal penalty is not obligatory. The inception of progressive discipline was a
reaction to the problem of dismissal of employees without being given adequate warning that
their behaviour warranted dismissal and secondly that should their conduct not be rectified,
82
[1959] 2 Lloyd’s Rep 683 at 689
83
[1996] 6 BLLR 685 AD 6911
84
1908 TS 761
85
[1991] 12 ILJ 1032 (LAC)
39
dismissal would be justified. The introduction of this approach did not seek to take away any
discretion from the employer to set his own workplace rules or standards but merely to ensure
that dismissal, should it be warranted, be imposed with caution and proper communication.
This caution is in line with the doctrine of fairness, which dictates that parties are made fully
aware of the consequences of their actions.86 Progressive denotes incremental discipline, in that
the sanctions imposed for the misconduct become progressively harsher if the employee fails
to meet the expectations of the employer.87
In NEI Zimbabwe (Pvt) Ltd v Makuzva88 Mtshiya SP, as he then was, held:
“I am convinced that in providing for s 12B (4) in the Act, the legislature meant to ensure that
employers did not rush to dismissals merely because the acts of misconduct were dismissible
… any disciplinary action taken must be largely corrective and reasonable.”
In Coh Coh Enterprises (Pvt) Ltd v Mativenga & Another89 the court pointed out that where
an employment code of conduct states that certain conduct “warrants dismissal, it does not
mean that where the conduct is proved dismissal must inevitably follow; in a proper case a
lesser penalty may be imposed. This judgment was in line with the factor of progressive
discipline by urging employers not to rush into dismissals whenever an employee is found
guilty of misconduct.
However recently the Supreme Court seem to depart from the letter and spirit of section 7 (1)
of S.I 15 of 200690 in the case of Innscor Africa (Pvt) Ltd v Letron Chimoto.91 The respondent
was convicted of conduct inconsistent with the fulfilment of the express or implied terms or
conditions of his contract of employment contrary to the provisions of s 4(a) of S.I. 15 of 2009.
It was alleged that the respondent, in the course of his employment as a pizza maker, had
produced a pizza without having received the necessary docket authorising the production of
the pizza. In terms of the code of conduct what the respondent did constituted a dismissible
offence. The disciplinary hearing committee and the arbitrator found that the misconduct by
the respondent was of serious nature and called for the dismissal penalty. The Labour Court
overturned the penalty of dismissal. In doing so it held that the appellant had not suffered any
86
J Chelliah & P Tyrone , Power Sharing in Progressive Discipline: New Rules of Engagement Arising from an
Australian Perspective‘ (2010) 6 CMR 91.
87
88
LC/H/248/04
89
2001 (1) ZLR 151 (H)
90
Section 7 (1) puts emphasis on the issue of progressive discipline.
91
SC/06/12
40
prejudice through the production of the pizza and that the pizza was worth only $4.00. It also
said that the penalty should have been corrective rather than punitive.
In a unanimous view the Supreme Court held that the finding that the pizza was only $4.00 was
of no consequence. The offence committed involved a betrayal of trust and confidence reposed
in the respondent by the appellant thereby going to the root of the relationship between the
employer and employee. In the circumstance the holding by the Labour Court that the
respondent ought to have been corrected is a misapplication of the provisions of s 7(1) of S.I.
15 of 2006. The provision was not intended to apply in a situation where the misconduct of an
employee goes to the root of the contract of employment. This decision goes to show the
harshness of the reasonable employer test as the employer’s views were exclusively taken into
consideration, that is, breach of trust and confidence reposed by the employer in the employee.
Once more all factors are measured in light of the relationship of trust. Therefore the principle
that is articulated is that, irrespective of whether an employee steals one million or one dollar,
once the relationship of trust and confidence has been destroyed, the employer is under no
obligation to continue to employ that person. Once the employer alleges and proves the
breakdown in trust, the decision to dismiss rests with the employer; though, whether the
decision will be deemed to be appropriate and fair in the circumstances will ultimately be
determined by the superior tribunal.
In Chavhunduka v United Bottlers92 the court set aside the decision of the employer to dismiss
as he had not addressed its mind to the possibility of any penalty other than dismissal. On the
other hand in the South African case of Timothy v Nampak Corrugated Containers (Pty) Ltd93
the Labour Appeal Court was satisfied that in a case of gross dishonesty coupled with a
complete lack of showing remorse, progressive discipline was not called for and dismissal was
fair. It is submitted that to impose a drastic sanction of dismissal, without the employee having
ever known that dismissal was in fact a possibility, goes against the concept of progressive
discipline. Where an employee, although found guilty of misconduct, has the potential to be
rehabilitated, the introduction of progressive discipline within our law and the concept of
fairness dictate that he or she be given a second chance. In addition, in light of the harsh
consequences of dismissal, the fact that the relationship of trust has not been completely
92
LC/H/135/05
93
[2010] 8 BLLR 830 (LAC) In a matter where an employee posed as an attorney representing the employer to
obtain privileged information for a colleague from a firm of attorneys.
41
severed must be taken into account when an employer or arbitrator contemplates dismissal as
a sanction.
3.6.3 The employee’s length of service
It is widely accepted that, other things being equal, the longer the period of service with the
employer, the more seriously the employer should consider mitigating factors.94 Section 12B
(4) of the Labour Act states;
“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 consider
… the length of the employee’s service.”
While acknowledging that long service may be a relevant consideration, the South African
Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a
dismissal unfair. In De Beers Consolidated Mines Ltd v CCMA & Others95 the two respondent
employees were dismissed for fraudulently claiming overtime. The arbitrating commissioner
found, among other mitigating factors, that both the employees had relatively long service with
the employer. The court commented as follows on this finding:96
“The commissioner also misunderstood the significance of the employee’s long service. Long
service is no more than material from which an inference can be drawn regarding the
employee’s probable future reliability. Long service does not lessen the gravity of the
misconduct or serve to avoid the appropriate sanction for it …”
The Judge went on to say that long service is however relevant in determining whether an
employee is likely to repeat his misdemeanor. According to this reasoning, long service creates
only a prima facie impression of reliability. Its weight will be offset if it is apparent from other
considerations, in particular the employee’s lack of remorse and the nature of that offence, that
that impression is unwarranted. Be that as it may, it has to be appreciated that there are certain
acts of misconduct which are of such a serious nature that no length of service can save an
employee who is guilty of them from dismissal. One such clear act of misconduct is gross
dishonesty.
3.6.4 Employee’s disciplinary record
94
Op cit note 14 at 5
95
(2000) 21 ILJ 1051 (LAC)
96
At para 22
42
As in criminal cases, an employee’s disciplinary record may be taken into account when
considering whether the employee should be dismissed for a particular offence. This follows
from a requirement that discipline should be ‘progressive.’ An employee on a final warning for
the same offence will be normally be regarded as irredeemable, and dismissal will be justified
if the employee commits a similar offence during the currency of the warning. 97 Conversely a
‘clean’ disciplinary record may call for leniency. The general principles relating to the use of
past warnings are that the offence for which the employee is dismissed should be similar to the
offences for which the employee received the previous warnings, and that the warnings should
be relatively fresh and valid.98 The common principle to be derived from the above case is that
employees may take into account only existing warnings when assessing an employee’s
disciplinary record for purposes of deciding on an appropriate sanction. It is generally accepted,
too, that earlier warnings may be taken into account only when deciding on the appropriate
penalty for a later offence if misconduct for which the warnings were issued was similar to the
latest offence.99
3.6.5 Consistency
The requirement that employees must be aware of the rules of the workplace gives rise to the
further principle that employers must apply their rules consistently. Grogan 100 pointed out that
it is unfair in itself to treat people who have committed similar misconduct differently. The
equity principle was upheld in Jiah & Others v Public Service Commission and Another101
where the selective dismissal of strikers was held to be unlawful and Musumbu v BP Shell
Marketing102 where the court reversed the dismissal of an employee failing to follow standing
instructions on occurrence of several car accidents, where previous cases had generally
attracted a less penalty.
Grogan103 distinguishes between historical and contemporaneous inconsistency. Historical

inconsistency occurs when an employer has in the past not dismissed employees or imposed a
specific sanction for a contravention of a specific disciplinary rule. In such a case unfairness
flows from the employee’s state of mind: the employees concerned were unaware that they
97
National Union of Mineworkers & Another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 5 LLD 226
(LAC)
98
NUM & Another v East Rand Proprietary Mines Ltd (1987) 8 ILJ 315 (IC)
99
Op cit note 14 at 5
100
Op cit note 14 at 5
101
1999 (1) ZLR 17 (S)
102
LC/H/41/05
103
Op cit note 14 at 5
43
would be dismissed for the offence in question. Contemporaneous inconsistency occurs when
two or more employees engage in the same or similar conduct at roughly the same time, but
only one or some of them are disciplined, or where different penalties are imposed. Consistency
in disciplining is thus an important element of showing that a dismissal was "fair.”
3.6.6 Admitting wrongdoing and showing remorse
In a number of cases this issue has been raised as a factor to consider in deciding whether the
trust relationship has been irretrievably broken down. In Timothy v Nampak Corrugated
Containers (Pty) Ltd & others (supra) it was held that when considering the appropriateness
of a sanction, progressive discipline is not called for where an employee has committed act of
gross dishonesty and had shown no remorse. It is submitted that this is the correct approach as
it would be unfair to expect the employer to take back the employee when he has persisted with
her denials and has not shown any remorse. An acknowledgement of wrongdoing on the part
of the employee would a long way in indicating the potential and possibility of rehabilitation
including an assurance that similar misconduct would not be repeated in the future.
3.6.7 Gravity of the misconduct
The seriousness of the misconduct is an important factor when the appropriateness of dismissal
as a sanction is considered. The more serious the misconduct the greater likelihood that
dismissal would be the appropriate penalty. The seriousness of the misconduct depends on a
number of aspects. One of the most important aspects is the nature of the offence. Offences
which constitute a serious breach of the trust relationship between the employer and the
employee are more serious than those which do not.104 In Muronzi v Foodworld
Supermarkets105 offences like fraud and theft were held to be so grave as to warrant dismissal
even for first offenders as such conduct goes to the root of the employment contract.
In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others106 when
dealing with the issue of the seriousness of the offence, the court held that the presence of
dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long
service and a clean record of discipline are likely to have minimal impact on the sanction to be
imposed. The court stated that:
104
105
LC/H/37/08
106
(2008) 29 ILJ 1180 (LC)
44
“In other words whatever the amount of mitigation, the relationship is unlikely to be restored
once dishonesty has been established in particular in a case where the employee shows no
remorse. The reason for this is that there is a high premium placed on honesty because conduct
that involves corruption by the employees damages the trust relationship which underpins the
essence of the employment relationship.”
3.6.8 Nature of the job
In Anglo American farms t/a Boschendal Restaurant v Komjwayo107 the court found that due
to the premeditation of the theft and that it was implemented over a period of time, a “thieving
propensity” was evidenced and could not be acceptable given the nature of the employee‘s job.
The respondent was employed as a waiter and his duties necessarily entailed handling the
appellant's stock-in-trade. In the nature of things, this task could not practically be carried out
without the employee being placed in a position of trust. In these circumstances the court held
that the effect of the respondent‘s misconduct on the relationship between the parties was such
that its continuation would have been intolerable for the appellant. The court consequently
found that the dismissal to be fair in the circumstances. In this case it is evident that the nature
of the job and the position of trust are weighty factors in determining: firstly if the employment
relationship can continue in light of the employer‘s business operations and secondly whether
the risk of repetition of such misconduct by the employee is probable. The first factor considers
the objective needs of the business and the second looks more closely and subjectively at the
employee and his inclination to contravene a rule.
3.6.9 CONCLUSION
In conclusion it is submitted that the reasonable employer test applied in the United Kingdom
and in our jurisdiction is excessively deferential to the employer’s perspective on the
appropriateness of penalty. On this test, interference with the penalty of dismissal is only
warranted if no reasonable employer could ever have imposed it. This writer then postulated
that rather than to defer to the decision of the employer the upper tribunal must consider all the
relevant circumstances. It has also been demonstrated that dismissal does not always follow an
act of misconduct warranting dismissal. The employer is constrained in imposing a penalty of
dismissal by ss 3 and 7 of the National Code as well as mitigating factors in section 12B (4) of
107
(1992) 13 ILJ 573 (LAC)
45
the Labour Act provide factors which must be taken into account before an appropriate penalty
is handed down by the employer.
The penalty of dismissal depends with circumstances as some acts of misconduct are so trivial
as not to warrant dismissal. The major principle which permeates through all the factors to be
considered is the relationship of trust which our courts have repeatedly identified as being the
cornerstone of the employment relationship. Therefore as long as the relationship of trust
between the employer and employee has been destroyed through the employee’s misconduct,
the courts have invariably held that the penalty of dismissal was appropriate. Misconduct which
goes to the root of the employer – employee relationship has repeatedly been held to warrant
dismissal. Having concluded that the reasonable employer test as applied by our courts is
heavily biased in favour of the employer and neglects the employee’s perspective and that the
factors considered are insufficient on their own, Chapter (4) Four is going to pass concluding
remarks and recommendations.
46
CHAPTER 4
COMPARATIVE ANALYSIS: THE SOUTH AFRICAN APPROACH
4.1 INTRODUCTION
The major theme of this chapter is a comparative analysis with the South African jurisdiction.
The investigation will mainly focus on judicial interpretation of the penalty of dismissal and
the labour law legislative framework governing dismissal law as opposed to the Zimbabwean
position. Comparison with the South African position is premised on the fact that we share the
same common law, namely, Roman – Dutch common law. In addition both countries also have
a constitutionally guaranteed right to fair labour practices in their Constitutions108 which has
an impact on the issue of dismissal as a penalty. The South African Labour Relations Act is the
legislation passed to give effect to s 23 of the Constitution just like our own Labour Act which
is the specific legislation passed to give effect to section 65 of our Constitution. It should also
be noted that the new section 65 will undoubtedly result in significant constitutional law
jurisprudence relevant to the employment relationship just as has been the case in South Africa.
4.2 South Africa: Statutory Provisions
The right to fair labour practices has now been ingrained in the 1996 South African
Constitution.109 The principal Acts promulgated to give effect to it are the Labour Relations
Act (LRA), Basic Conditions of Employment Act 75 of 1997 and the Employment Equity Act
55 of 1998. In terms of section 188 (1) of the LRA a dismissal is unfair if it is not effected for
a fair reason and in accordance with a fair procedure, even if it complies with any notice period
in a contract of employment or in legislation governing employment. In addition whether or
not a dismissal is for a fair reason is determined by the facts of each case and the
appropriateness of dismissal as a penalty.110 In addition it can be noted that the South African
LRA is complemented by the Code of Good Practice and CCMA Guidelines.
108
Section 65 of the Zimbabwean Constitution is similar to section 23 of the South African Constitution and the
manner in which s 23 has been interpreted by the South African Constitutional Court will largely influence our
own judicial interpretation of s 65.
109
Section 23 of the Constitution
110
Item 2(1) Sch 8 LRA.
47
The Code of Good Practice: Unfair Dismissal111 notes that whether or not a reason for dismissal
is a fair reason is determined by the facts of each case. The relevant guidelines in the Code112
state that:
Any person who is determining whether a dismissal for misconduct is unfair should consider:-
a) whether or not the employee contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
b) if a rule or standard was contravened, whether or not-
i) the rule was a valid or reasonable rule or standard;
ii) the employee was aware or could reasonably be expected to have been aware,
of the rule or standard;
iii) the rule or standard has been consistently applied by the employer; and
iv) dismissal was an appropriate sanction for the contravention of the rule or
standard
4.3 Dismissal through the courts.
In a number of decisions the South African Labour Court and the Labour Appeal Court
previously applied what was termed the “differential approach.” In Nampak Corrugated
Wadeville v Khoza113 the court held that the decision to dismiss or take disciplinary action is
largely within the discretion of the employer, the court held as follows:
“A court should therefore not lightly interfere with sanction imposed by the employer unless
the employer acted unfairly. The question is not whether the court would have imposed the
sanction imposed by the employer, but whether in the circumstances of the case, the sanction
was reasonable.”
The court in Computicket v Marcus NO and Others114, one of the earlier judgments on the
matter, held that the question of sanction for misconduct is one on which reasonable people
can readily differ. The court went on to say that there is a range of possible circumstances in
which one person might take a view different from another without either of them properly
being castigated as unreasonable. In County Fair Foods (Pty) Ltd v CCMA & Others115 the
111
6 Schedule 8 LRA.
112
Item 7 (1) of the Code
113
[1999] 2 BLLR 108 (LAC)
114
(1999) 20 ILJ 342 (LC).
115
(1999) 20 ILJ 1701 (LAC)
48
court held that commissioners must exercise greater caution when they consider the fairness of
the sanction imposed by the employer. They should not interfere with the sanction merely
because they do not like it. There must be a measure of deference [emphasis added] to the
sanction imposed by the employer subject [emphasis added] to the requirement that the
sanction imposed by the employer must be fair.
A divergent approach from the preceding case law was seen in Toyota SA Motors (Pty) Ltd v
Radebe and Others116 were the court stated that stated that it did not believe that the reasonable
employer test forms part of our South African law and the application thereof was a palpable
mistake. Finally in Sidumo v Rustenburg Platinum Mines Ltd (Rustenburg Section)117 the South
African Constitutional Court rejected the application of the reasonable employer test, and held
that, in determining the fairness of the sanction of dismissal for misconduct, ‘the
commissioner’s sense of fairness is what must prevail and not the employer’s view.’118 Navsa
J, as he then was went on to explain how commissioners should go about determining the
fairness of the sanction of dismissal in the following words:
“In approaching the dismissal dispute impartially a commissioner will take into account the
totality of circumstances. He/she will necessarily take into account the importance of the rule
that has been breached. The commissioner must of course consider the reason the employer
imposed the sanction of dismissal as he or she must take into account the basis of the
employee’s challenge to the dismissal…”
In the Sidumo case (supra) the reasonable employer test was rejected for the major reason that
section 23 of the South African Constitution and the Labour Relations Act (LRA) sought to
address the power imbalance between employers and employees. Since neither the Constitution
nor the LRA accords any superior status to the employer’s view on fairness of a dismissal it
would be against Constitutional norms and against the right to fair labour practices to give
supremacy to the views of either party to a dispute. The ‘reasonable employer test tips the
balance in favour of an employer.
In short, the Constitutional Court replaced the reasonable employer test with what may be
termed the ‘impartial commissioner test.’119 While the former might have been biased in favour
116
(2000) 21 ILJ 340 (LAC).
117
[2007] 28 ILJ 2405 (CC)
118
at para75
119
Determining and Reviewing sanction after Sidumo, ILJ, Vol 31, 2010.
49
of employers, the latter is by no means biased in favour of employees. Myburgh120 pointed out
that this is consistent with the constitutional right to fair labour practices applying equally to
both parties, the impartial commissioner test strives to ensure absolute neutrality on the part of
the commissioners in the determination of sanction.
What is highly commendable about the South African position is that the legislature and the
judiciary have listed the factors that must be considered by the commissioner in his capacity to
determine the fairness of sanction; some of these factors have been codified in the recently
handed down CCMA Guidelines. According to the CCMA Guidelines:
“The test is whether the employer could fairly have imposed the sanction of dismissal in the
circumstances, either because the misconduct on its own rendered the continued employment
relationship intolerable, or because of the cumulative effect of the misconduct when taken
together with other instances of misconduct.”121
The CCMA Guidelines, in considering various types of employee misconduct that may justify
dismissal, found it necessary to include instances of serious once - off offences as well as
instances of repeated offences. The Guidelines goes one step further to specifically list these
types of serious offences that may render a dismissal justified.122 The CCMA Guidelines also
state that:
“The arbitrator must make a value judgment as to the fairness of the employer’s decision, taking
into account all relevant circumstances. This must be a balanced and equitable assessment
taking into account the interests of both the employer and employee. In making this assessment,
the arbitrator must give serious consideration to, and seek to understand the rationale for, the
employer’s rules and standards.”
Zimbabwe should borrow from this advanced jurisprudence in labour law to come up with a
clear position as regards dismissal as a penalty.
4.4 CONCLUSION
120
121
Paragraph 93 of the CCMA Guidelines
122
The offences listed are; gross dishonesty, wilful damage to property, endangering the safety of others,
assault and gross insubordination as examples of what may constitute serious misconduct that may justify
dismissal as a result of a single contravention. The Courts have also identified gross negligence and sexual or
racial harassment as serious misconduct. This is not a closed list and in some workplaces there may be more
severe sanctions for contraventions of rules and standards than in other workplaces.
50
This chapter has highlighted the South African legislative position and judicial interpretation
in relation to dismissal as an appropriate penalty. It has been noted that initially the South
African courts applied the ‘reasonable employer test’ as applied in the United Kingdom.
Subsequently the courts held that the ‘reasonable employer test did not form part of South
African law and the application thereof was a palpable mistake.123 In the Sidumo case (supra)
the ‘reasonable employer test was held to be unconstitutional as it offended against the
constitutional right to fair labour practices as entrenched in section 23 of the South African
Constitution. Furthermore in South Africa, unlike in Zimbabwe, there is a Code of Good
Practice and the CCMA Guidelines which spell out in clear terms what factors have to be
considered before imposing the penalty of dismissal. In Chapter (5) five concluding remarks
as well as recommendations are going to be passed in relation to dismissal as an appropriate
penalty.
123
Toyota SA Motors (Pty) Ltd v Radebe and Others (supra)
51
CHAPTER 5
CONCLUSIONS AND RECOMMENDATIONS.
5.1 INTRODUCTION
In chapter (4) four it was demonstrated that there is a yawning gap between Zimbabwean and
South African position as the former is still lagging behind by applying the obsolete reasonable
employer test. Numerous problems bedeviling our dismissal law have been acknowledged in
this study which calls for urgent consideration by the legislature, the courts, workers unions
and the workers. The suggested reforms and recommendations in this chapter are not the
universal remedy to the thorny issue of dismissal as a penalty tackled in this paper. Much will
depend upon various factors working in tandem to make our dismissal law meet the
expectations of the toiling workers of Zimbabwe.
5.2 CONCLUDING REMARKS

5.2.1 Dismissal as a penalty for misconduct in light of the Constitution of Zimbabwe
Amendment (No. 20) Act, 2013.
Section 65 of the Constitution provides for the right of every person to fair and safe labour
practices. Although the right to fair labour practices extends to employees and employers alike,
for employees it affords security of employment. Section 65 is similar to section 23 of the
South African Constitution. In the Sidumo case (supra) the reasonable employer test was
rejected for the major reason that it violated section 23 of the South African Constitution which
protects everyone from unfair labour practices. One of the primary purposes of the Labour Act
is to give effect to the fundamental rights conferred by section 65 of the Constitution. Given
the fact that we share similar labour law constitutional provisions Zimbabwean courts should
adopt the interpretation adopted by the Constitutional Court of South Africa and declare the
reasonable employer test unconstitutional.
The focus of s 65 (1) of the Constitution is, broadly speaking, the relationship between the
worker and the employer and the continuation of that relationship on terms that are fair to both.
In giving content to that right, it is important to bear in mind the tension between the interests
of the workers and the interests of the employers which is inherent in labour relations. Care
must therefore be taken to accommodate, where possible, these interests so as to arrive at the
balance required by the concept of fair labour practices. It is in this context that the Labour Act
52
must be construed and courts should desist from adopting an interpretation which favours the
employer by invoking the reasonable employer test.
Given that we now have a constitutionally guaranteed right to fair labour practices in section
65 of the Constitution which give effect to the Labour Act there is no compelling reason
whatsoever for us to retain the reasonable employer test. Although it has been held elsewhere124
that a claimant may not rely directly on a Constitutional right when legislation has been passed
to give effect to that right, it is submitted that S.I. 15 of 2006 and the Labour Act are both
wanting as they have both failed to emphatically and decisively outlaw the “reasonable
employer test.” On the contrary, they appear to endorse it. Besides, it must be noted that a
purposive approach should always be adopted in interpreting section 65 in line with the
principles governing Constitutional interpretation. The “reasonable employer test” has failed
to take into account the employees standpoint and falls short of the Constitutional dictate of
fair labour practices for both the employer and the employee. The test has outlived its
usefulness.
5.3 RECOMMENDATIONS
5.3.1 Legal Reforms.
It is recommended that linking the breakdown of the employment relationship to the employer's
needs and necessities can be a useful guiding principle for cases involving dishonesty and other
types of serious misconduct (for example insubordination, assault, harassment and so forth).
Our Labour Act together with S.I. 15 of 2006 need to be amended to incorporate a provision
which state in clear and unequivocal manner that when deciding on the appropriateness of
dismissal as a penalty there has to be a consideration of the operational context of the
misconduct as well as the operational implications or consequences thereof. This is necessary
as the courts have interpreted the provisions of the statutes to endorse the reasonable employer
test.
Zimbabwe should emulate and utilize the provisions in the South African Code of Good
Practice to the effect that an employer must indicate that the misconduct is of such a nature as
to make the relationship intolerable. This cannot be done simply by alleging the breakdown of
the trust relationship, the employer must put enough material before a decision maker to
persuade such person that having regard to the totality of circumstances (including factors
124
Sidumo & Another v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC)
53
relating to the employee and the employer) the sanction of dismissal was appropriate and fair.
In addition Zimbabwe should come up with its own Code on dismissal just like what South
Africa has done.125 This will enhance clarity in our dismissal law and avert disjointed
jurisprudence when courts have to determine dismissal as a penalty for misconduct. The
following factors have to be provided for in our proposed Code on Dismissal:
 The court should take into account the importance of the rule that has been breached.
 In approaching the dismissal dispute the court should take into account the totality of
circumstances.
 The court must consider the reason the employer imposed the sanction of dismissal and
the basis of the employee’s challenge to the dismissal.
 The court should take into account the harm caused by the employee’s conduct, whether
additional training and instruction may result in the employee not repeating the
misconduct.
 In any dismissal dispute an employer must firstly indicate that the misconduct in
question is serious and grave to the extent that it makes the employment relationship
intolerable. In addition to this the employer must then proceed to show that it had
considered all relevant factors and that dismissal was still considered to be the
appropriate sanction.
 In a dismissal dispute the employer should bear the onus of showing that the dismissal
was fair.
The above is not an exhaustive list but it will be a good starting point. The employer must
satisfy the onus that dismissal was fair and the decision maker reviewing that decision must be
satisfied that having regard of the facts of the case the dismissal was indeed fair. In this context,
fairness must require a consideration of factors pertaining to both the employer and employee.
An employer should not take for granted that certain kinds of misconduct, especially those
involving dishonesty, necessarily imply that the relationship of trust and confidence has been
destroyed.
The “reasonable employer test” applied in the United Kingdom is extremely deferential to the
employer’s viewpoint on the appropriateness of sanction and the time has come to discard it
125
The South African Code of Good Practice and the CCMA Guidelines on Dismissal
54
and replace it with the balanced approach which judge both the employer and employee’s
perspectives equally. This is the correct approach taking into account Zimbabwe’s obligations
as a member of the International Labour Organisation, section 2A of the Labour Act which
calls for social justice and democracy in the workplace and lastly section 65 of the Constitution
which enshrines every person right to fair labour practices.
5.4 CONCLUSION
The major theme of this research paper was the determination of the correct approach as regards
dismissal as a penalty for misconduct under the Labour Act. 126 It was highlighted in the
problem statement that there was lack of clarity as regards the proper test to be applied in the
determination of whether dismissal is an appropriate penalty for a case of proven misconduct.
Chapter (3) three of this paper addressed the issue of how the employer will determine the
appropriateness of dismissal as a penalty for misconduct and the deficiencies inherent in the
reasonable employer test as applied by our courts. In addressing this issue it is submitted that
linking the breakdown of the employment relationship to the employer's needs and necessities
can be a useful guiding principle rather than according greater weight to the views and opinions
of the employer. Fairness of dismissal as a penalty must require a consideration of factors
pertaining to both the employer and employee. In doing so there must be due and proper regard
to the objects sought to be achieved by the Labour Act and the National Employment Code of
Conduct.
The significance of holding the scales between the conflicting interests of employees and
employers squarely in the balance cannot be understated. In deciding how courts should
approach the task of evaluating the fairness of a dismissal, it is imperative to take cognizance
of the fact that security of employment is a major theme of the Constitution which has been
given effect to by the Labour Act and its subsidiary legislation. This protection is accorded to
employees who are a vulnerable group in an employment relationship. This vulnerability
emanates from the nature of the employment relationship in developing countries which is akin
to that of master and servant. The relation between an employer and an isolated employee or
worker is typically a relation between a bearer of power and one who is not a bearer of power.127
The Constitution and the Labour Act seek to restore the power disparity between employees
and employers. Neither the Constitution nor the Labour Act accords some superior prominence
126
Chapter 28:01
127
Davies and Freedland Kahn-Freund’s Labour and the Law 3 ed (Stevens & Sons, London 1983)
55
to the employer’s view on the fairness of a dismissal. It flies in the face of the constitutional
norms and against the right to fair labour practices to give priority to the opinions of either
party to a dispute.
56

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MIDLANDS STATE UNIVERSITY

DISMISSAL AS A PENALTY FOR MISCONDUCT: THE APPROPRIATE APPROACH

RESEARCH PAPER COVER SHEET

STUDENT NUMBER: R091645Q

PROGRAMME/DISSERTATION CO-ORDINATOR DATE

EXTERNAL EXAMINER DATE

STUDENT SIGNATURE: …………………………….

Constitution of Zimbabwe Amendment (No. 20) Act, 2013

Constitution of the Republic of South Africa, Act 108 of 1996

Labour Act [Chapter 28:01]

Labour Relations Act 66 of 1995, South Africa

Basic Conditions of Employment Act 75 of 1997, South Africa

Labour (National Employment Code of Conduct) Regulations, 2006.

CCMA Guidelines: Misconduct Arbitrations Notice 602 of 2011, South Africa

International Labour Organisation Instruments

International Labour Organisation (ILO) Convention concerning Termination of Employment

International Labour Organisation (ILO) Recommendation concerning Termination of

Acklam v Sentinel Insurance Co Ltd [1959] 2 Lloyd’s Rep 683 at 689

Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761

Art Corporation v Moyana 1989 (1) ZLR 252

Astra Industries Limited v Chamburuka SC – 27 – 12

British Leyland UK Ltd v Swift [1981] IRLR 91

City of Mutare v Mutamisa 1998 (1) ZLR 512 (S)

Community Trust v Claudious Chemhere SC 22 – 13

Computicket v Marcus NO and Others (1999) 20 ILJ 342 (LC).

Coh Coh Enterprises v Mativenga and Kusowa SC/30-200

Chavhunduka v United Bottlers LC – H – 135 – 05

Dalny Mine v Banda 1999 (1) ZLR 221 (H)

Four Seasons Foods (Pvt) Ltd v Mutsvakanhau SC – 44 – 09

Hama v NRZ 1996 (1) ZLR 58 (S)

Innscor Africa (Pvt) Ltd v Letron Chimoto SC – 06 – 12

Langton Mapurisa v City of Masvingo LC – MS – 05 -14

Majurira v Tredcor Zimbabwe (Pvt) Ltd SC – 48 – 13

Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)

Murawo v Grain Marketing Board 2009 (1) ZLR 304 (S)

Muronzi v Foodworld Supermarkets LC – H – 37 – 08

National Foods Ltd v Masukusa SC/230/93

National Union of Mineworkers v Commission for Conciliation Mediation and Arbitration

Nampak Corrugated Wadeville v Khoza [1999] 2 BLLR 108 (LAC)

NEI Zimbabwe (Pvt) Ltd v Makuzva LC – H – 248 – 04

Passmore Malimanji v CABS SC – 47 – 07

Robert Musomekwa v BP & Shell Marketing LC – H – 12 – 09

SA Maritime Authority v McKenzie [2010] 5 BLLR 488 SCA

Taylor v Minister of Education and Another 1996 (2) ZLR 772

Total Zimbabwe (Pvt) Ltd v Moyana 2005 (1) ZLR 65 (S)

ZESA versus Dera SC – 79 – 98

Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S) at H

Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR390 (S)

Zikiti v United Bottlers HH/60/98

employer and other approaches’ (2000) 21 ILJ 2145

Leroux and Mischke ‘The Disciplinary Sanction: When is Dismissal Appropriate?’

A.C. L. Davies ‘Perspectives on Labour Law’ 2004

A Van Niekerk Law at Work 1 ed (2008) 245

D Du Toit Labour Relations Law: A Comprehensive Guide 5 ed (2006) 397

George Markings Step by Step Discpline ed (2004) 43

Innocent Machingambi A Guide to Labour Law in Zimbabwe 1 ed (2007) 96

John Grogan, Workplace Law 10 ed (2010) 135

John Grogan Dismissal 1 ed (2013) 11

Munyaradzi Gwisai Labour and Employment Law in Zimbabwe 1 ed (2006) 241

CCMA Commission for Conciliation Mediation and Arbitration

ESAP Economic Structural Adjustment Programme

SALJ South African Law Journal