WINTERTON, HOLMES & HILL v PATERSON 1995 (2) ZLR 68 (S)

Flynote

Employment — contract — termination — dismissal — suspension pending dismissal — employer suspending employee and applying under Labour D Relations regulations for authority to dismiss — employee seeking a court order to set aside suspension — whether court had discretion to refuse to order reinstatement

Legal practitioner — conduct and ethics — professional assistant in dispute with firm — whether court has discretion to decline to order reinstatement E where employee resorting to remedies under common law rather than statutory remedies

Headnote

A professional assistant in a law firm became locked in a heated dispute with her employers over various issues. The firm threatened to apply for her dismissal. She complained to the labour relations officials of unfairlabour practice, arguing that female assistants were being treated unfairly by the firm. The firm suspended her and applied under the labour regulations to dismiss her. Based on her allegation that she was suspended for consulting the labour officials, she obtained an urgent ex parte order calling on the firm to show cause why the suspension should not be declared invalid and they should not pay her salary within twenty-four (24) hours. When she was not paid, she made a chamber application to imprison all the partners for contempt of the provisional order, ignoring advice that the order was ambiguous and, on the face of it, not immediately effective. The court refused to grant any committal for contempt, but made no award as to costs, and ordered the firm to pay her until the main case was determined. The firm had withdrawn its application to the labour officials and had simply dismissed her. The court referred to trial the question of whether her suspension and dismissal were unlawful and whether she should be reinstated. The firm appealed.

Held, that it was clear that the firm had not suspended the assistant in retaliation for her having referred the matter to a labour official.

Held, further, that the assistant's decision to apply for a court order instead of relying on her statutory remedies meant that she had taken the common law route. Unlike the statutory process, where reinstatement must be ordered if the applicant succeeds, under the common law process the court has a discretion to refuse reinstatement, even where the dismissal was unlawful. In the circumstances of this case, reinstatement was patently inappropriate. The total breakdown of the personal relationships that had occurred, and the complete absence of the mutual trust, confidence and courtesy required amongst lawyers, made it sheer folly to thrust them back together again.

Held, further, that the issue of whether the assistant was lawfully suspended and dismissed was properly referred to trial, but the court had misdirected itself in believing that the question of reinstatement was dependent on it. Although the assistant was not entitled to reinstatement, the order was amended to enable her to make a claim for damages instead.

Held, further, that the firm should have been awarded its costs in the contempt proceedings because, although the assistant may not have been responsible for the ambiguous wording of the order, she had ignored advice that she could not succeed and had wrongly brought a chamber application instead of a court application. As the firm had been successful in its opposition, costs should have followed the event.