Acts of misconduct under SI 15 of 2006

THE question of who is going to preside over a disciplinary hearing, was settled last week when we discussed this issue. This week, I want us to look at the acts of misconduct in terms of SI 15 of 2006. The offences are provided in terms of Section 4 of the Code. The law makers indicate that if an employee commits a serious misconduct if he or she commits any of the offences listed in that section. This also means that an employer is not at large to create offences that are not provided for in terms of the SI. There are instances some employers out of excitement create their own offences. This usually leads to serious challenges along the way.

Acts of conduct presuppose a breach of a duty which is provided for in terms of either the common law or statute. The duties will be covered in detail in future articles as well. Whenever you see act of misconduct described under Section 4 always bear in mind that the employer is complaining about a certain breach of a fundamental duty of an employee. We are now going to have an overview into the offences provided for under section 4 of the Code. Please note that I will not be exhaustive as this will require a stand-alone book on its own.

Charging can be in the alternative What happens if an employee’s conduct constitutes more than one offence. There is a remedy in terms of the law, the employee can be charged in the alternative. The law is settled that the employer can charge an employee for various acts of misconduct in the alternative. This legal proposition appears in various legal authorities, and one common one is Fraser Muyaka v Bak Logistics (Pvt) Ltd SC39/2017 where the employee had also been charged in the alternative. There is also need for greater care in drafting the charges so that you cover all possible avenues of escape from liability as long as the act complained of falls within the remit of the act of misconduct.

The Supreme Court has stated the position on the importance of particularity, and clarity in terms of the charges. In DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) v ONISMO RUTSITO SC42/13

“. . . Where such particulars are not set out, the defendant is embarrassed in his defence as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence. It is now well established that a defendant is entitled to know the outline of the case that a plaintiff will try to make against him. Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H), p 139 D-E. Also Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404, 407 A-B” (Counsel’s underlining for emphasis)

(a) any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; or

◆ In terms of the common law an employee has the duty to work in and advance the interests of the employer and not against its interests. The duty imposes an obligation on an employee to refrain from misconduct or anything which makes “the continuation of the employment relationship intolerable or unworkable or which undermines trust and confidence employer and employee” Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR (S). This is known as the duty of good faith. This is the duty that is codified in terms of s 4 (a) of S.I. 15 of 2006. An employee under this duty shall not engage in “any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his employment.”

◆ It is important at this stage without going into much detail it is important to dissect the charge so that we know what the employer has to prove in order for it to secure a conviction of the employee. The purpose of this is to help practitioners to have an appreciation of the essential composition of the charge, and create a basis upon which the charge can be adjudged against the essential elements.

◆ Conveniently all the words in the charge are to be broken down below and analysed individually just to demonstrate the importance of being clear, and the importance of ensuring that every material allegations laid in a charge has to be proved.

“ANY ACT,

This is a positive act which has a bearing on the contractual obligations of an employee. This act has to be clearly spelt out and proved. An employer cannot prove an act which is not contained in terms of the charge. Everything has to be laid out. There are several cases to prove this principle.

“CONDUCT OR

This is more or less the same with an act; it refers to a particular behavior which violated contractual obligations of an employee. As highlighted above, this conduct has to be clearly spelt out and proved. An employer cannot prove a conduct which is not contained in terms of the charge. Everything has to be laid out.

Omission

The word omission is very clear on its meaning; it simply refers to something which was supposed to be done by the employee which (s)he failed to do. The facts of the charge do not demonstrate whether the Complainant is pleading, an act, conduct, or omission or it’s pleading everything. The omissions again have to be clearly spelt out and proved. An employer cannot prove an omission which is not contained in terms of the charge. .

Inconsistent

The term inconsistent, implies existence of a consistent way of doing things or a standard by which a particular conduct is measured against. Inconsistency is not measured by common sense, dictionary, experience or Google. There has to be a set standard recognised in the contract of employment which is used to measure a particular, act, conduct or omission. The employer has to specify in the charge how the act, conduct or omission is said to be against a set standard. It is not enough to allege that an act, conduct or omission is inconsistent with the fulfillment of the express or implied conditions of a contract of employment. This is has to be specifically pleaded.

Fulfillment

The desired goal in terms of the standard or contract of employment.

Express or

This simply means that the conditions are written in terms of the contract of employment. These again have to be specifically pleaded in terms of the charge presented against the employee. The mere mention of the word “express” does not alter the case of the employer, an employer has to layout everything.

Implied conditions

This is the opposite of express, and this simply means that the conditions are being read from somewhere into the contract of employment. What are these implied conditions. There is no room for hiding, all the facts have to be placed before the Hearing and before the employee so that she can respond and address them. It is important to note that if the Disciplinary Authority or Committee is going to find the employee GUILTY of violating an IMPLIED condition or term, these conditions need to be set out and demonstrated in terms of the judgment and in terms of the Complainant’s case.

. . . of his/her contract of employement This is the document which governs the relationship of the Employer and the Employee, and its violation would give rise to either party to take action on it. For unaccounted reasons, many employers do not tender a copy of the Contract of employment, but they will be praying and moving for the conviction of the employee on the basis of a contract which the DO has not seen. If the employer cannot prove the term which has been violated and how it has been violated, there is clearly no legal and factual basis for holding on and continuing with this hearing.

Quite evidently, I will not be able to finish all the acts of misconduct in this instatement as I had to explain in detail what is meant by the first charge in terms of S4 of S1 15 of 2006. Next week, I will cover on the other acts of misconduct.

◆ To be Continued Arthur Marara is a corporate law attorney practicing in Harare, Zimbabwe. He is also a notary public and conveyancer. He is passionate about labour law, commercial and family law, and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com.