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Taurai Musakaruka People Issues
Readers of this column have recently raised questions relating to employment relations. Below are some responses to some of the questions which are just illustrative and not exhaustive.

Question: Is one compelled to pay retrenchment package if an employee is dismissed for misconduct in terms of the registered Code of Conduct?

Answer: Reading Section 12C (2) together with 12(4a) of the Labour Amendment Act, 2015, it is clear that even if one is dismissed, he shall be deemed to have been retrenched. Whether this will be called dismissal or retrenchment it’s anyone’s guess. A dismissed employee can still argue that he was not dismissed but retrenched as confirmed by the retrenchment package he would have received. The Act states that:

“Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called . . . the minimum retrenchment package”) of not less than one month’s salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to Section 12(4a) (a), (b) or (c)), no later than date when the notice of termination of employment takes effect.”

Below is an import from the Labour Amendment Act, 2015:

12(4a) (4a) “No employer shall terminate a contract of employment on notice unless—

(a) The termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under Section 101(9); “

(b) The employer and employee mutually agree in writing to the termination of the contract or

(c) The employee was engaged for a period of fixed duration or for the performance of some specific service.

Q: The clause that is contained in most Job descriptions “. . . and any duties assigned by the supervisor. . .” seem to be unfair. Is it legal and fair in the eyes of the law?

A: Having a clause for extra duties is not that bad and is a common practice in most organisations. However, the instruction must not relate to an activity external or foreign to the type of duties the employee is employed to perform.

With reference to Zupco v Mabhande and Anor 1998(2) ZLR 150, the drivers in the employ of the appellant (Zupco) embarked on a period of go-slow.

While the industrial action was still in progress, the respondents (Mabhande and another) who were employed by the appellant as drivers’ instructors were ordered to drive passengers for hire. Both declined to comply with the order.

Letters of suspension were served upon them three days later and the appellant applied to the Ministry of Labour for permission to terminate the respondents’ contracts of employment on the ground that they had will-fully disobeyed a lawful order in contravention of Section 3(1) of the Labour Relations (General Conditions of employment)-Termination of Employment Regulations SI 371 of 1985.

The court held that driving of buses for conveyance of fare-paying passengers was an activity foreign to the type of duties the respondents were employed to perform which was to train new employees to drive buses. When they were promoted to become instructors the capacity in which they were employed was changed. It mattered not that they retained the ability and skill to drive buses.

The appellant also failed on its second ground of appeal that the go-slow engaged by its drivers justified the respondents to “perform this emergency work” of driving fare paying passengers. In other words they could not be required to perform work which fell outside the scope of their contracts of employment.

Q: What constitutes theft at workplace (Biting the hand that feeds)?

A: The definitional elements of this crime include:

(a) An act of appropriation;

(b) In respect of a certain type of property (or thing);

(c) Which takes place unlawfully and

(d) intentionally.

Theft (furtum) is legally defined as unlawful, intentional appropriation of movable, corporeal property which:

(a) Belongs to, and is in the possession of, another

(b) Belongs to another but is in the perpetrator’s own possession, or

(c) Belongs to the perpetrator but is in another’s possession and such other person has a right to possess it which legally prevails against the perpetrator’s own right of possession provided that the intention to appropriate the property includes an intention permanently to deprive the person entitled to the possession of the property, of such property.

A person commits an act of appropriation if she commits an act whereby she deprives the lawful owner or possessor of her property and she herself exercises the rights of an owner in respect of the property.

Theft takes three forms namely: The removal of property. Here the person removes property belonging to somebody else from that person’s possession and appropriates it.

This is the most common form of theft. An employee takes either property belonging to the employer or fellow employee and appropriates it. The second form is embezzlement.

Here one appropriates another’s property which she already has in her possession. It is also called theft by conversion. The third form is called arrogation of possession.

Here one removes her own property which is in the lawful possession of another and appropriates it. In this case, the owner steals her own thing by removing it from the possession of a person who has a right to possess it which legally prevails over the owner’s own right of possession. X wishes to borrow money from Y. Y is only prepared to lend X the money if X gives her (Y) her (X’s) watch as security for the repayment of the debt. X gives Y her watch and Y lends X the money. In terms of the agreement, X will get her watch back only after she has repaid Y the amount of money owing.

However, before she has paid Y the money, X takes the watch into her own possession without Y’s consent. This constitutes theft in the form of the arrogation of possession, (University of South Africa).

This is rare at workplace but usually happens between employees themselves.

Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice and these views are personal.

• Taurai Musakaruka is a Human Resources Practitioner and for feedback e-mail: [email protected] or [email protected]