CHISIPITE SCHOOL TRUST (PVT) LTD v CLARKE 1999 (2) ZLR 324 (S)

Flynote

Employment ” contract ” termination ” suspension of employee without pay and benefits pending application for order to terminate employment ” benefits including housing and motor vehicle ” whether employer entitled to obtain order for eviction c of employee from house and return of motor vehicle

Headnote

As part of her benefits from her employment as headmistress of the appellant school, the respondent was entitled to free occupation of a house and the use of a motor vehicle. The school authorities suspended the respondent without pay and other benefits in terms of s3(1)(h) & (i) of the Labour Relations (General Conditions D of Employment) (Termination of Employment) Regulations, 1985 (SI 371 of 1985). The grounds for her suspension were that she lacked the skills required to manage the school and had not demonstrated an appropriate level of competence in the discharge of her duties as headmistress. After suspending her the school authorities then applied to a principal labour relations officer for an order terminating her employment on the grounds set out in her letter of suspension. The respondent refused to vacate the house and to return the motor vehicle to the school so the school authorities applied to the High Court for an order obliging her to vacate the E house and return the vehicle.

Held, that the respondent had not challenged the legality of the suspension by referring the dispute to a labour relations officer under s 93(1) of the Labour Relations Act [Chapter 28:01] and therefore there was no question of having to wait for the outcome of this challenge before bringing the High Court application.

Held, further, that s 3 of the Labour Regulations provides for the summary suspension of an employee without pay and other benefits. After such suspension the employee is not entitled to continued enjoyment of the employment benefits and these benefits remain lost to the employee until a labour relations officer decides whether the grounds for suspension had been proved.

Held, further, that in terms of s 3 of the Labour Regulations, the labour relations officer is only entitled to investigate whether the grounds for suspension have been proved. If they are, he or she will issue an order terminating employment. If they are not, he or she will issue an order the removal of the suspension and to reinstatement or payment of damages to the employee and may also order the payment of back pay from the time of summary suspension and compensation for any loss of benefits incurred by such suspension.

Held, further, that the labour relations officer had no power to order the employee to surrender employment benefits such as the house and car which she was permitted to use and the

school authorities, who were not permitted to resort to self-help, were entitled to approach the High Court for relief and were justified in doing so.

Semble, that an employee is entitled to refer a matter under s 93(1) without having to wait for the conclusion of the determination in terms of s 3(2) of the Labour Regulations. The referral can be made on grounds such as that the suspension was vitiated by bad faith, was not based on any of the grounds of misconduct specified in s 3(1) of the Labour Regulations, or ex facie the allegations did not constitute the ground of misconduct relied upon. If the employee establishes one or more of these grounds, the employee would be entitled to have the withdrawal of pay and other benefits set aside without having to await the conclusion of the investigation in terms of s 3(2) of the Labour Regulations.