How Unlawful Dismissal is Cured in Zimbabwe

Authored by Urayayi Chikwetu

Introduction

Have you ever thought about the remedies for unlawful termination of employment?  If you are like most people, you probably scoffed at this question by stating that you are not in that situation yet, why bother yourself. Getting acquainted with the remedies for unlawful termination before you experience it keeps you ahead of the game. A good general does not train his or her troops how to fight when in battle, training is done in time of peace. Here is what you are going to learn when you go through the whole article: a comprehensive explanation of the remedies of unlawful termination of employment namely reinstatement, re-employment and damages. Let the rubber hit the road as I comprehensively unpack each remedy one by one starting with reinstatement.

1.   Reinstatement

It is important at the outset to state that the remedy of reinstatement under Zimbabwean labour law is available in terms of common law and statutory law.

1.1 Reinstatement in terms of common law

When it comes to reinstatement under common law the first thing to remember is that reinstatement is available at the discretion of the court . For this reason , it become imperative to set out the two main justifications that  have  frequently been given for  outright denial of reinstatement and discretionary granting of reinstatement .Specifically  ,courts have often raised the point that it was inadvisable to force a person to employ another whom he or she does not trust in a position which imports close relationship and absence of mutuality , meaning the court can not force an employee to perform his or her duty faithfully and diligently . On the negative side, it has been observed that whether one takes the outright denial of reinstatement or granting discretionary reinstatement approach , the remedy of reinstatement has remained largely unavailable under common law . Notably , the courts have cited mutual incompatibility or disappearance of trust that is expected to exist between two parties . Where does this leave the remedy of reinstatement under common law, is it still relevant in the Zimbabwean jurisdiction? Zimbabwe’s accomplished legal scholar Professor Lovemore Madhuku has rightly stated that it is not the rule of law that reinstatement is not available in employment contracts(2015:231-234). The courts have discretion and in the exercise of the discretion reinstatement will not normally be granted. In short, common-law position is still relevant since not every employment relationship is regulated by legislation. Most employment relationships not regulated by the Labour Act are governed by the common law position on reinstatement. This now leads me to turn my focus on reinstatement in terms of statutory law .

1.2    Reinstatement in terms of statutory law

In terms section  89(2)(c)(iii) of the Labour Act , where an order of reinstatement is sought as a cause of action, it can not be granted alone, there must always be an alternative for tha employer to pay  damages . An order of reinstatement must always be accompanied by an option to pay damages . Thus the Labour Court in an application and as an appeal court  is required to grant an order of reinstatement with an alternative for the employer to pay damages. Similarly , an arbitrator is expected to give an arbitration award of reinstatement that gives an employer an option to pay damages  . To cut the long story short an order of reinstatement in terms of the Labour Act require that the appellant or claimant be reinstated to his or her former position with full salary or other benefits with effect from the date of unlawful dismissal ,and where such reinstatement is no longer possible, the appellant or claimant be paid such damages as an alternative to reinstatement as may be agreed upon between the parties or failing as may be determined by the court or tribunal upon application.

Before i deal with the next remedy there are at least six  issues I want to deal with which are pertinent to reinstatement . Firstly I want to deal with the meaning of reinstatement. Ideally , reinstatement must mean putting the employee  back  in the position as though the alleged misconduct and other proceedings had not occurred . It is to restore the status quo ante the dismissal .Be that as it may ,the law on this in Zimbabwe is regulated by the Supreme Court decision  in Chegutu Municipality v Manyora which states that reinstatement is not necessarily retrospective . To be retrospective, the court order must specifically state so.

Secondly , I need to shed some light on whether reinstatement is automatic. Given that an order of reinstatement must always be accompanied by an alternative for an employer to pay damages, it is inescapable to conclude that an order of reinstatement does not entail automatic reinstatement in every case of unlawful dismissal. In cases where reinstatement is inappropriate , the court must not grant it. The employer has the onus to prove on a balance of probabilities that reinstatement is inappropriate. For example , the employer may allege that it inappropriate to reinstate the employee due to breakdown of relationship .It is imperative for the employer  to lead evidence which show breakdown of the relationship as opposed to just offering bald assertions.

Thirdly , it is a necessity for me to  answer whether reinstatement entails an obligation on the employer to provide reinstated employee with work. The answer  is a resounding no. It is a well known general rule that reinstatement does not require the employer to provide an employee with the work to do. Reinstatement entitles an employee to his or her salary upon tendering services .There is an exception to this general rule ,particularly in cases of employment contracts whose nature require the employer to provide work to an employee for such an employee to derive benefits envisaged by the employment relationship.

Fourthly , I find it consequential to provide answers to the question on whether an employee can decline reinstatement and elect to be paid damages instead. The supreme court , in BHP Minerals Zimbabwe (Pvt) Ltd answered this question correctly by stating that an employee can not choose , without reason , to refuse reinstatement and ask for damages. It is crucial for the employee to have good reasons for refusing reinstatement .Where an employee refuses genuine offer of reinstatement , he or he abandons his or her claim for damages in respect of the period after the reinstatement was supposed to start. It is vital to note that this position is correct only in cases where an employee who initially asked for reinstatement , changes his or her mind after an order of reinstatement or damages has been granted and the employer has already opted for reinstatement .However , this does not prevent an employee to opt for damages at any stage during the proceedings before a final determination has been made. This is in tandem with the common law rule that an innocent party in an action for breach of contract have the right to choose the remedy of his or he choice. The Labour Act has not changed this rule.   

Fifthly , I must answer whether civil servants are entitled to reinstatement. The Labour Act does not apply to  public service employees, thus reinstatement in terms of the statutory law as discussed above does not apply. It is clear that the position of civil servants is dealt with using common law. Reinstatement is available but subject to the discretion of the court.

Sixthly,  I find it foundational to answer whether the question on whether reinstatement as is provided for in terms of the Labour Act , that is , statutory reinstatement, pass the constitutional test. Currently , there is no case law in Zimbabwe addressing this question . However, Professor Lovemore Madhuku has opined that to the extent that the Labour Act ‘s approach to reinstatement prevents a court from ordering reinstatement as the only remedy in appropriate cases, it is liable to challenge under the Constitution(2015:248). The challenge will most likely allege the violation of section 65(1) of the Constitution  which provide for right to fair labour practice . Fairness demands that both the employee and employer be afforded the right to elect to take reinstatement or damages where the court has ordered reinstatement or damages . It will not be fair labour practice not to afford an employee the right to choose one of these options. Furthermore, fairness also demands that the court retains the discretion to order reinstatement as the only remedy  in cases of unfair dismissal.

1.3    Conclusion

Before I deal with the next remedy, I just want to sum up remedy of reinstatement . I have indicated that reinstatement is available in terms of common law and statutory law. Under common law reinstatement is allowed subject to the discretion of the court. On the other hand , under statutory law reinstatement is available but the court or tribunal is required to grant an order of reinstatement that is accompanied by an option for an employer to pay damages . Also related to reinstatement , I have discussed that reinstatement was not automatic, an employee can not elect to be paid damages where this has been ordered together with reinstatement , civil servants may be granted reinstatement under common law, employer has no duty to provide work for reinstated employee and that the Labour Act approach which does not permit the court to grant order of reinstatement as the only remedy in cases of unlawful termination of employment was susceptible to constitutional challenge. I now turn to the discussion of damages as a remedy for unlawful dismissal.

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2.   Damages

Damages in lieu of reinstatement is a remedy offered to an employee whose employer does not want to reinstate the unfairly dismissed employee. According to the Labour Act , the employer must prove that reinstatement is no longer tenable hence payment of damages. It is invaluable to observe that the quantum of damages to be paid will take into account the issue of mitigation of losses .  The duty to mitigate losses was emphasized by the Supreme Court in the case of Ambali v Bata Shoe Co. Ltd. The court stated that an employee who has been dismissed whether rightly or wrongly is not entitled to sit around and do nothing. The employee is expected to look for alternative employment, failure of which his damages will be reduced, meaning he or she will be compensated for the period between his wrongful dismissal and the date he could reasonably have been expected to find alternative employment. Thus the quantum of damages will be calculated on the basis of length of time from the date of dismissal, which it would reasonably take the dismissed employee to find similar job. The evidence showing the results of an employee’s search for employment may help the court to determine what is reasonable in the circumstances. I end here on the damages as remedy for unlawful dismissal and I now turn to re-employment which is one of the remedies for unlawful dismissal .

3.   Re-employment

If you closely read section 89(2)(c)(iii) of the Labour Act , two  distinguishable remedies are evident namely reinstatement and employment . Unfortunately the Act is silent as `to the meaning of the term “employment. According to Madhuku, employment includes what in other jurisdictions called re-employment or re-engagement . The South African Labour Relations Act in section 193 clearly distinguishes between reinstatement and re-employment by stating among other things  that if the Labour Court or arbitrator finds the dismissal unfair, the court or the arbitrator may

(i)             order the employer to reinstate the employee from any date not earlier than the dismissal date , 

(ii)            order the employer to re-employ the employ, either in the work the employee was employed before the dismissal or in other reasonably suitable work on any terms from any date to earlier than the date of dismissal .

What is clear from the provision of the South African Labour Relations Act is that a new employment relationship is imposed . The employee may be given his old job on new terms or may be given a job that differs from the old one.

The British labour law remedy is referred to as re-engagement. This resembles reinstatement ,but the employee does not necessarily return to the old job .However , the job have to be comparable and suitable . It is clear from the above discussion that the remedy of reemployment in Zimbabwe is largely unexplored. Madhuku’s(2015:234) advice on this matter is that development in this area would obviously draw good lessons from the South and British labour law.

4.    Conclusion

Before I give a general conclusion I just want to say that the seed of intellectual debates and discussions like the one we are engaged in needs certain nutritional components to grow. In the platform like the one we are on , the nutritional components that assist the growth of the intellectual seed are the like, share , comment and subscribe buttons . These buttons are they way, you the consumer ,pay  the creator of the content. Just take some few seconds to like, comment, share and subscribe to the newsletter, it is for free. You can also suggest topics for discussions in the comments section.Back to the conclusion to our meat of the discussion .From the discussion it is clear that unlawful dismissal is cured through reinstatement , damages and re-employment in Zimbabwe .

Urayayi Chikwetu is a registered Legal Practitioner and can be contacted on 0713 569 986

Disclaimer :The content of this article is intended to provide a general guide to the subject matter. This is not legal advice. Specialist legal  advice should be sought about your specific circumstances.