Name Yolleen Ngorima

Student number 230045

Module Labour law
Lecturer Dr Masekesa
Assignment
1) Advising Peter who has expressed concerns about the manner in which his
services were terminated.

The issue in question is whether Peter’s dismissal was fair both substantive and
procedurally.

Substantive

To commence with, the issue is whether Peter’s dismissal was substantively fair.
In this case, Article 4 of the Termination of Employment Convention1 and Section
101 (92) of the Labour Act can be applied. Termination of Employment
Convention3 states that in order for employment of a worker to be terminated,
there must be a valid reason for such termination and it must be linked with
capacity or conduct of the worker based on operational requirements of the
undertaking establishment or service. In the scenario, Peter stole biscuits which
is regarded as misconduct. According to Madhuku4, a misconduct which is not
serious does not undermine the relationship between an employee and an
employee. Peter’s conduct is regarded as just a misconduct which is not gross .
Also, putting into consideration that he had a clean record for 20 years of service
shows that the issue can be mitigated. His conduct would only require a warning
and less disciplinary actions.

However, Peter’s conduct outside the work place leads to termination of

employment. Peter confronted and assaulted Sam at Nandos in front of other
employees and this act leads to dismissal. The labour laws requires company’s
to have code of conduct. If the company doesn’t have it’s own , it is supposed to
use the Model Code 20065. The Model Code states that if an employee’s conduct
goes against the express or implied conditions of the employment , he or she can
be dismissed. In this scenario, Sam’s conduct outside the work place can lead
him to be dismissed. In the case of Makwiro Platinum Mines v Paradzayi6, an
employee was dismissed because of his drunken which he displayed outside the
working environment. The drunken behavior was viewed to be making himself a
nuisance in the mining compound and also displaying a bad reputation for the
company. In the Supreme Court case of Zimparks Limited vs. Tawanda

1
Article 4 of the Termination of Employment Convention 1985
2
Section 101(9) of the Labour Act Chapter
3
Termination of Employment Convention 1982 (158)
4
Madhuku L: Labour Law in Zimbabwe, 1st Ed. Weaver Press Harare (2015)
5
The National Employment Code of Conduct Regulations No 15 (2006)
6
Makwiro Platinum Mines v Paradzayi (36/04) (36/04) [2004] ZWSC 46 (08 September 2004)
 Mugarambi7 , Justice Korsah ruled that an assault by one employee on another
outside of working hours, arising from a dispute that began outside of work, was
not considered work-related. However, the current stance was established in the
Paradzai case, where the Supreme Court overturned its previous ruling. The
court stated that accepting the earlier position would allow for increased violence
outside of the workplace, even if the conflicts originated from within it, thereby
undermining workplace relationships. In this scenario, Peter can be dismissed
because the behavior he displayed in front of other employees can result in other
employees copying it and it will create hostile relations at the work place.

Procedural fairness

The dismissal of Peter was not procedurally fair. The principles of Natural justice
comes into play the audi alteram parten rule and the nemo judex. Sam at first
conducted a hearing which did not take place and then after the attack at Nandos
, he immediately dismissed Peter without conducting the hearing. The dismissal
is not fair because Peter never had a chance to explain why he had done such a
bad conduct. The principle of “audi alteram partem” is a Latin phrase meaning
that before someone can be convicted of a crime or held liable in civil, criminal,
or labor cases, they must be given a chance to defend themselves. This allows
the defense to present their side of the story and address any potential
misunderstandings or alleged wrongdoing. In this case, Peter was not awarded
such a chance. Also, nemo judex is a Latin phrase meaning that no one should
serve as a judge in their own case. It indicates that a witness or complainant
cannot also act as the prosecutor and the judge in the same situation. Instead, a
judge who has no vested interest in the matter should be appointed. In this case,
Sam acted as the judge and decided the issue on his own which is not fair.

Also, Peter is supposed to appeal to the Labour court for the unfair dismissal
without following the required procedures. He is supposed to be awarded
reinstatement in lieu for the dismissal which was unfair procedurally.

In conclusion, Peter’s dismissal was substantively fair and procedurally unfair.

Peter’s conduct determines that substantively he was ought to be dismissed. On
the other hand , Peter’s dismissal was procedurally unfair . This is shown by the
fact that no hearing was conducted.

2) Was Jenny and Adriana’s dismissal substantively and procedurally fair

7
Zimparks Limited vs. Tawanda Mugarambi (SC 196/94)
To commence with, Jenny and Adriana’s dismissal was substantively fair. Sections 104
and 93 of the Labour Act8 brings out this to light. Jenny and Adriana’s strike was
unlawful. According to Rubin , the right to strike is an indispensable tool which workers
and their organisations invoke for the advancement and protection of their economic
right9. Mucheche also states that the use of economic power to strike should be the last
resort because of its adverse effects on the economy10. Section 104 of the Labour Act,
there must be a 14 days written notice of intent to conduct such action and also
specifying the grounds for the intended action. In this case , Jenny and Adriana gave a
24 hour notice which is contrary to the provisions of the Labour Act. Also, in terms of
conciliation Section 93 of the Labour Act states that 1) A labour officer to whom a
dispute or unfair labour practice has been referred, or to whose attention it has come,
shall attempt to settle it through conciliation or, if agreed by the parties, by reference to
arbitration, (2) If the dispute or unfair labour practice is settled by conciliation, the
labour officer shall record the settlement in writing. (3) If the dispute or unfair labour
practice is not settled within thirty days after the labour officer began to attempt to settle
it under subsection (1), the labour officer shall issue a certificate of no settlement to the
parties to the dispute or unfair labour practice.
In this scenario, the conciliation method was not effectively applied and it was not even
practiced. The 30 day period was not even reached and the duo resorted to striking. In
the case of Speciss College v Chiriseri & Others11, the employees of the college went on
strike without providing the 14 days notice and they were dismissed as they sabotaged
the education system at the college. I’m this scenario, Jenny and Adriana’s dismissal
was substantively fair.

Procedural fairness

8
Labour Act of Zimbabwe Chapter 28:01
9
Neville Rubin Code of International Labour law , Practice and Jurisprudence; Volume 1 , Essentials of Labour Law
(2005) at 203.5
10
Caleb Mucheche Labour Law Rights under the Constitution of Zimbabwe page 25
11
Speciss College v Chiriseri & Others (Civil Appeal SC 268 of 2011; SC 2 of 2013) [2013] ZWSC 2 (11 February 2013)