NYAMANDE & ANOR V ZUVA PETROLEUM (PVT) LTD (1) 2015 (2) ZLR 157 (S)

NYAMANDE & ANOR v ZUVA PETROLEUM (PVT) LTD (1) 2015 (2) ZLR 157 (S)

Flynote

Employment — termination — on notice — not a breach of Labour Act — common law right to terminate employment on notice not limited or abolished

The appellants' employment was terminated on notice, as provided in their contracts of employment, and were paid cash in lieu of notice. An arbitrator considered that the termination was unlawful because it had not been in terms of a code of conduct, but the Labour Court allowed an appeal by the respondent, the employer. It held that neither s 12(4) nor s 12B of the Labour Act [Chapter 28:01] abolished the employer's right to terminate employment on notice. On appeal to the Supreme Court, it was agreed that at one time both the employer and the employee had a common law right to terminate an employment relationship on notice.

Held, that the common law right in respect of both the employer and the employee could only be limited, abolished or regulated by an Actof Parliament or a statutory instrument that is clearly intra vires an Act of Parliament. It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. Applying the golden rule of statutory interpretation — that words be given their primary meaning — there were no words in s 12B of the Act that either expressly or by necessary implication abolished the employer's common law right to terminate an employment relationship by way of notice. Section 12B, as the main heading of that section reveals, deals with dismissal and the procedures to be followed in those instances where an employment relationship is to be terminated by way of dismissal following misconduct proceedings. The section also sets out in some detail what constitutes unfair labour practice, which it outlaws. Termination of employment on notice is not among the conduct that s 12B of the Act outlaws as unfair labour practice.

Held, further, that s 8 of the Act sets out in some detail conduct that is outlawed as unfair labour practice. Termination of employment on notice is not among the conduct outlawed by s 8.

Held, further, that s 12B deals with the method of termination of employment known as "dismissal". While dismissal is one method of termination of employment, it is not the only method; it is one of several methods of terminating employment. Another is retrenchment. Where the relationship between the employer and the employee has deteriorated to untenable levels through no fault of either party the relationship can be terminated. Section 12B of the Act does not deal with the general concept of termination of employment. It concerns itself with termination of employment by way of dismissal in terms of a code of conduct. It sets out that which must be followed or done in terms of either an employment code of conduct or a national code of conduct. It does not concern itself with termination of employment by ways other than dismissal.

Held, further, that s 12(4) deals with the concept of termination of employment on notice in terms of a contract of employment. It regulates the period of notice, setting out the time periods that apply when employment is being terminated on notice. The notice periods do not apply when an employee is dismissed, as in such event no notice is required. Section 12(4) explicitly applies to both the employer and the employee. There was no possible reason why, despite the explicit language of the section, it should apply to the employee only and not to the employer; or why the section should exist to regulate a non-existent right. The subsection could only have meaning if there was a substantive right, in this case the common law right to terminate employment on notice, to which it pertained. This is especially so when one considers that all that s 12(4) does is to facilitate the exercise of an existent common law right.

Editor's note: s 12 of the Act was amended by Act 5 of 2015 (which came into effect on 26 August 2015, but with retrospective effect to 17 July 2015, the date of this judgment) to state that no employer shall terminate a contract of employment on notice except where (a) the termination is in terms of an employment code; or (b) both parties mutually agree; or (c) the contract is for a fixed duration or for the performance of some specific service; or (d) pursuant to retrenchment. An urgent application by the employees to appeal to the Constitutional Court was dismissed on 1 August on the grounds of lack of urgency and because there was no right to appeal from a decision of the Supreme Court, no constitutional issues having been placed before that court. See Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2), below in this volume.