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