DHL INTERNATIONAL (PVT) LTD v TINOFIREYI 2014 (2) ZLR 546 (S)

Flynote

Employment — dismissal — grounds — conduct inconsistent with express or implied terms of contract of employment — common law right of employer to dismiss employee for such conduct — employer's right to dismiss on such grounds not altered by Labour Act — code of conduct — cannot override common law

Headnote

The respondent was employed by the appellant company. He was convicted of two offences under the company's code of conduct. In respect of one (an act of disobedience), he was issued with a final written warning. In respect of the second (an act of indiscipline), he was dismissed. The code of conduct did not provide for dismissal in respect of acts of indiscipline. After unsuccessful domestic appeals, he appealed to the Labour Court. There, the company argued that the respondent's indiscipline amounted to conduct that was incompatible with the fulfilment of the express terms and conditions of his employment, and that accordingly it was entitled to dismiss him. The Labour Court ordered his reinstatement. Its grounds for doing so were that any unwarranted departures from a code of conduct only served to undermine the labour standards agreed by employers and employees, and risked reviving the old master and servant laws of the common law, which were tilted in favour of the employer. On appeal to the Supreme Court, the issue was whether the provisions of a code of conduct can override, and therefore alter, the common law principles governing an employer's right to dismiss an employee for misconduct that goes to the root of the employment contract.

Held, that the common law position is that the commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated. There is a presumption that the legislature did not intend to alter the common law. The Labour Act [Chapter 28:01] contains no provision which either expressly or by implication purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship. Section 2A of the

Act sets out the objectives of the Act and specifically provides that in the event of a conflict between the Act and any other enactment the Act shall prevail. "Enactment" does not include the common law. The section is thus not a wholesale amendment of the common law. The common law can only be altered by an explicit provision of the Act. A code of conduct cannot alter or abrogate a principle of the common law. It does not matter that the code of conduct is a product of an agreement.

Held, further, that a situation where an employee absents himself from work in defiance of an order to the contrary is untenable in any work situation. This is particularly so where the employer is in business and its success and viability hinge on, among other factors, the discipline of its workforce. The respondent deliberately defied an order from his superiors not to leave work. His defiance had the effect of disrupting the appellant's operations and causing inconvenience to its customers. Such conduct was clearly inconsistent with the fulfilment of the express or implied conditions of his employment. On the basis of common law and numerous authorities in this jurisdiction and beyond, such misconduct justified dismissal.

Held, further, that not all acts of misconduct that are inconsistent with the express or implied conditions of one's employment warrant the penalty of dismissal. If it is shown that he is guilty of such misconduct, it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.