The
background to this matter is as follows.
The
respondent was employed by the appellant as its Chief Executive Officer. In
terms of the contract of employment signed by the two parties, the respondent's
conduct at the workplace was to be “regulated through the Staff Code of Conduct
and the Labour Relations Act [Cap. 28:01] as well as other related Statutory
Instruments.” It was further agreed that all disciplinary and appeals
procedures were to “be handled in conformity with S.I.371 of 1985 and/or
according to the Code of Conduct of the organisation.”
In
December 2006, the respondent was suspended from employment without benefits in
terms of section 4 of the Labour (National Employment Code of Conduct)
Regulations, Statutory Instrument 15 of 2006 (“the National Employment Code of
Conduct”) and also in terms of the Labour Relations (Employment Codes of
Conduct) Regulations S.I.379 of 1990, and, further, in terms of the Chikomba
Rural District Council Code of Conduct. In due course, the respondent appeared
before a Disciplinary Committee facing eight (8) charges of misconduct as
defined in section 4 of the Labour (National Employment Code of Conduct)
Regulations, S.I.15 of 2006. He was found guilty of six of the eight charges
and was dismissed from employment. Dissatisfied, the respondent lodged an
application for review in the Labour Court. Essentially, he sought an order
setting aside the decision of the Disciplinary Committee on the basis that the
appellant should have conducted the disciplinary proceedings in terms of its Code
of Conduct and not the National Employment Code of Conduct.
The
Labour Court accepted this submission and consequently made the order that is
the subject of this appeal.
The
appellant, in its grounds of appeal, has attacked the decision of the Labour
Court on several bases. These are:
1.
That the court erred at law in concluding that the appellant's use of the
procedure provided for in the National Employment Code of Conduct was fatal to the
disciplinary proceedings conducted against the respondent.
2.
That the court misdirected itself in failing to appreciate that the contract of
employment signed by the appellant and the respondent allowed the appellant to
use either its Code of Conduct or the National Employment Code of Conduct in
conducting disciplinary proceedings against the respondent.
3.
That the court erred in disregarding the provisions of the contract of
employment signed by the parties in terms of which both parties expressly agreed
that the appellant's Code of Conduct, the Labour Relations Act [Chapter 28:01]
and other related statutory instruments, were to govern labour disputes between
the parties.
4.
That the court adopted an over-fastidious approach in interpreting the National
Employment Code of Conduct and in the process resolved a labour dispute on the
basis of a legal technicality despite the overwhelming evidence which pointed
to the respondent's guilt.
The
above grounds raise one issue only and that is whether, at law, the appellant,
which had a registered Code of Conduct, was entitled to discipline the
respondent using the National Employment Code of Conduct.
The
starting point is section 12B of the Labour Act [Chapter 28:01]. That section
provides, in relevant part, as follows:
“12. An
employee is unfairly dismissed –
(a)
If, subject to subsection (3), the employer fails to show that he dismissed the
employee in terms of an employment code; or
(b) In
the absence of an employment code, the employer shall comply with the model
code made in terms of section 101(9).”…,.
The
Labour (National Employment Code of Conduct) Regulations, 2006 were made in
terms of section 101(9) of the Labour Act [Chapter 28:01]. Those Regulations
also provide, in section 5, as follows:
“5. Termination of contract of employment
No
employer shall terminate a contract of employment with an employee unless -
(a) The
termination is done in terms of an employment code which is registered in terms
of section 101(1) of the Act; or
(b) In
the absence of the registered code of conduct mentioned in (a), the termination
in terms of the National Employment Code of Conduct provided for under these
regulations; or
(c) …,.
(d) …,.” …,.
Section
101 of the Labour Act [Chapter 28:01] provides that a registered employment
code shall be binding in respect of the industry, undertaking or workplace to
which it relates.
It
is the appellant's contention before this court, as it was in the court a quo,
that the appellant was entitled to use either the Labour (National Employment
Code of Conduct) Regulations, 2006 made under the Labour Act [Chapter 28:01],
or its Code of Conduct, or both, as this was specifically agreed upon in the
contract of employment signed by both parties.
There
can be no doubt, regard being had to the provisions in the Labour Act [Chapter
28:01] and the Labour (National Employment Code of Conduct) Regulations, 2006,
to which reference has been made, that the submission by the appellant that it
was entitled to use either its employment code, or the Labour (National
Employment Code of Conduct) Regulations, 2006, or both, is not tenable. Both
the Labour Act [Chapter 28:01] and the Labour (National Employment Code of
Conduct) Regulations, 2006 are clear that the National Employment Code of Conduct
contained in the Labour (National Employment Code of Conduct) Regulations, 2006
can only be invoked where there is no registered Code of Conduct. Since it is
common cause that the appellant does have a registered Code of Conduct, the
termination of a contract of employment of any of its employees had to be in
terms of its Code of Conduct and not the National Employment Code of
Conduct.
The
appellant therefore erred in terminating the respondent's employment in terms of
the National Employment Code of Conduct….,.
I
am satisfied that the court a quo was correct in coming to the conclusion that
the suspension and dismissal of the respondent by the appellant was null and
void. The appeal must therefore fail.
The
appeal is accordingly dismissed with costs.
