STERLING PRODUCTS INTERNATIONAL LTD v ZULU 1988 (2) ZLR 293 (SC)

Flynote

Employment — Labour Relations (General Conditions of Employment) D (Termination of Employment) Regulations 1985 — employer's application for termination of employment sent to wrong official — whether legislation complied with — waiver of right to suspend employee — payment of wages for limited period after employee's suspension — whether tacit waiver can be inferred.

Statutes — interpretation of — principles — directory or peremptory provisions in statutes — whether provisions have been complied with — test to be applied.

Headnote

In July 1987 the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that application be made to a labour relations officer, but the appellant applied to an acting Regional Hearing Officer in the Ministry, instead of to a labour relations officer. It did so because the official in question had been concerned with a previous dispute between the parties. In January 1988 a labour relations officer referred the employer's application to the Labour Relations Board for hearing. The following month, the appellant paid the respondent her salary for the time from her suspension up to and including 21 September 1987, but gave no explanation for doing so.

In June 1988 the respondent applied on notice of motion for an order reinstating her in her employment. The application was granted by GREENLAND J, who found that the Regulations had not been complied with because the application for dismissal had been made neither to the correct official nor "forthwith", as required by the Regulations. * The company appealed, arguing that the application to the Regional Hearing Officer, although not procedurally correct, was so close to what ought to have been done as to amount to a substantial compliance with the requirements of the Regulations. The respondent argued that even if the appellant had substantially complied with those requirements, it had, by paying the respondent's salary for a period after the date of suspension, either tacitly waived its right to summarily suspend her or condoned her misconduct.

Held, that the functions of a labour relations officer and a regional hearing officer are clearly distinguishable. The proviso to s 137(1) of the Labour Relations Act 1985 did not mean that each of the officials mentioned in the subsection was to be regarded as exercising the functions of the others, although each official might act in more than one capacity. There was no suggestion that the acting Regional Hearing Officer in this case was exercising the functions of a labour relations officer.

Held, further, that in deciding whether the Regulations had nevertheless been complied with, the court must look, not at the quality of the command and whether it is categorized as "peremptory" or "directory", but at the intention of the legislature, which can only be derived from the words of the enactment, its general plan and its objects. Having discovered the object of the enactment, the court must decide whether that object is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration.

Held, further, that the degree of non-compliance in this case was by no means great and the object of the regulatory injunction was not frustrated ormaterially impaired by the appellant proceeding in the manner that it did.

Held, further, that where an employer, following summary dismissal or suspension of an employee on grounds of misconduct, does an act which, taken not in isolation but with all other pertinent factors, establishes an intention to continue the employee in service, the employer must be held to have waived his right to dismiss or suspend, or to have condoned the misconduct. The onus, however, is on the employee to show, on a balance of probabilities, that the employer knew its rights and definitely surrendered them, whether expressly or by conduct plainly inconsistent or irreconcilable with an intention to persevere with their exercise. court does not lightly assume that a party has abandoned or renounced his right, especially where a tacit waiver is relied on. On the facts, the respondent failed to discharge the onus on her.