DISCIPLINING AN EMPLOYEE FOR MISCONDUCT COMMITTED DURING  TERMINATED CONTRACT:

LEGAL NUGGETS FROM THE SUPREME COURT OF ZIMBABWE

 

By C. Mavhondo

 

 

 Mhishi Nkomo Legal Practice, Harare

 

 Date: 10/10/24

 

 

 

 

 

 

 

 

 

 

During an employment relationship,  an employer is allowed to  discipline his  or her employee for  misconduct. This article seeks to demystify  the circumstances under which an employer may or may not ,   during a subsequent  employment relationship,  discipline an employee for misconduct committed during a previously terminated contract.  

 

When  the employment relationship has  terminated for any reason, the former employer  cannot  discipline the former employee because there will be no more employer and employee relationship. In some cases, the employee is re-engaged in one way or the other after  the termination of the relationship.

 

In circumstances where a fixed term contract  expires but is immediately renewed,  the issue  that may arise is;  whether or not the employer can discipline the employee for misconduct  which  was allegedly committed  during the expired contract but discovered during the renewed contract?  The current position of the law as confirmed by the Supreme Court of Zimbabwe in the case of Muchechetere v ZBC P/L and Others  SC 143/21  is that the employer is allowed to carry out the  disciplinary action against the employee in such circumstances.  The  basis of this position is that there is no break of the legal relationship since the expired contract would have been renewed. This means any  misconduct  committed during the expired contract is not wiped  away.      

 

The same issue may arise in a situation where an employee who  has been re-engaged after termination of his previous fixed term or permanent contract,   is   alleged to have  committed a misconduct during the previous  fixed term  or  permanent contract.   The current position of the law as confirmed by the Supreme Court in the case of Mutasa v ZESA Enterprises PL SC 88/24  is that in such circumstances, the employer is not allowed to take disciplinary action against the employee. The basis of this position is that the previous termination created a break of the legal relationship which wiped away the basis for  any allegation of misconduct connected to the previous relationship.

 

In conclusion,  whether or not, during  a re-engagement period,  the employer will be allowed to discipline an employee for misconduct committed during the expired or terminated contract depends on whether or not the  termination created a complete break of the legal relationship  between the parties . If there was a complete break of the legal relationship , the employer cannot discipline the employee during the re-engagement period. The reverse  is true.

 

Disclaimer

The contents and suggestions contained in this article are for information purposes only and are not for the purposes of providing any legal advice. For any feedback,  feel free to get in touch on  Cell 0772 456 954,    Tel: + 263-242- 703664/6, 701622, Email: cmavhondo@mhishilaw.co.zw,  Website: www.mhishilaw.com

 

 

 

THE EMPLOYEE'S RIGHT TO DISCONNECT IN ZIMBABWE

 The expansion of global digitalization is gradually diminishing the distinction between work and personal life. Employees are utilizing devices such as smartphones  to remain 'connected' to their jobs outside of standard working hours. The issue  that this article seeks to answer is  whether or not an employee in the Zimbabwean context has a right to  disconnect during  non-working hours.

 

The right to disconnect is believed to have been first established in  France in 2016. To date, several countries including Spain,  Belgium, Argentina and Chile have adopted similar measures. This right was   more recently  recognized in Australia  through a law which was passed in early 2024 but became effective  on 26^th August 2024.  The right to disconnect is intended to reduce the prevalence of unpaid work hours and address mental health issues in the workplace. Furthermore, it seeks to eliminate the culture of overwork, thereby promoting work-life balance. At the end of the day, it preserves the employee’s right to a period of rest, holiday  and personal time.

 

The right to disconnect  in  Australia is  to the effect that an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer or  a third party ( for example employer’s  clients)  if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable. Therefore, the  right to disconnect in the Australia context does not prohibit employers or third parties  from contacting  employees; however, employees have the right not to respond outside of working hours unless such refusal is deemed unreasonable.

 

 

In the Zimbabwean context, the right to disconnect is  implied in certain provisions of  the law. The Labour Act (Chapter 28:01) ( herein after called “the Act”) does not expressly  provide for the right to disconnect. In terms of  common law, an employee has a duty to provide service to the employer in terms of the employment contract and within the agreed time. This common law duty is modified by statutory law. Section 14 C of the Act provides that every employee shall be entitled to not less than 24 continuous  hours of rest each week, either on the same day  of every week  or a day agreed by the employer and the employee. Further modification is in terms of Section 6(1)(b) of the  Act which specifies that no employer shall require any employee to work more than the maximum hours permitted by law or by agreement. In addition, Section 4A ( 1) of the same Act in line with section 55 of the Constitution of Zimbabwe  provides that no person shall be required to perform  forced labour.  Section 51 of the Constitution provides that every person has a right to human  dignity in their private and public life. Section 65 of the Constitution  entrenches  labour rights including the right to safe labour practices. It is  worth noting that Zimbabwe also ratified  the International Labour Organization Conventions which are against  forced labour.

 

In light of the above legal position , if an employer or  an employee is bound by an employment contract or a collective bargaining agreement or any law in respect to working hours, the employer cannot require the employee  to work ( that is perform  his duty to provide service ) for more than the  hours prescribed in such an employment  contract or collective bargaining agreement  or law. In other words,  the employee is not  required to respond to emails, WhatsApp messages  or text messages that the employer sends after  agreed or prescribed working hours. This confirms that the right to disconnect as implied in our law,  is subject to what the law says and what the  employer and the employee would have agreed in terms of the employment contract.

 

The employee is therefore  entitled to enjoy his  or  her break time and  lunch time as long as the same is prescribed by law and agreement. This  position  can be used to justify  the employee’s  right to disconnect during any leave of absence ( vacation leave or public holidays , sick leave or casual leave).  The critical point is that the employer and the employee should agree on the boundaries of the right to disconnect.  The employment terms and conditions in respect to the right to disconnect may differ from one employment to the other and from one industry to the other given  different circumstances for each matter. A number of factors may  have to be considered for example the nature of the job, the circumstances of the employee. In a case where the job in question requires the employee to render service on urgent basis or emergency basis, the right to disconnect may not be an absolute one. It may be limited . 

 

In conclusion,  though the right to disconnect is becoming a popular employee right due to global digitalization,  it is not expressly stated as a right in the Act.  It is only implied from certain provisions of the Act and common law but  subject to what the employer and the employee would have agreed in terms of the employment contract.