Allfix Security (Private) Limited v Charles Ncube

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/451/13
HELD ON 27TH JULY 2013 &
CASE NO LC/H/562/12
27TH SEPTEMBER 2013
JUDGMENT NO LC/451/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/451/13

HELD ON 27TH JULY 2013 &				CASE NO LC/H/562/12

27TH SEPTEMBER 2013

In the matter between

ALLFIX SECURITY (PRIVATE) LIMITED		Appellant

Versus

CHARLES NCUBE						Respondent

Before the Honourable Hove J	:		Judge

HOVE J:

The appellant employed the respondent as an assistant operations manager.

Sometime in October 2010 the respondent’s contract of employment was terminated by the giving of notice

The employer submitted that it faced financial problems when its contract with a third party was terminated. It therefore gave notice to all its employees to the effect that their contracts of employment would be terminated and proceeded to terminate the contracts of employment. Included in the list of those terminated was the respondent.

The respondent was dissatisfied by the manner in which his contract of employment was terminated and complained to a Labour officer. The matter eventually appeared before an arbitrator.

Pages 12 to 14 of the record clearly sets out the issues that the arbitrator had to deal with and also the facts which led to the dispute.

The arbitrator in analysing the issues before him had this to say:

“The respondent (employer) defended himself citing that the termination was according to s 12 (4) (a) of the Labour Act. However by terminating a contract of employment basing on that clause alone, the respondent erred. Section 12 B(2) provides that:

‘An employee is unfairly dismissed if, the employer fails to show that he dismissed the employee in terms of an employment code, or in the absence of an employment code, the employer shall comply with the model code made in terms of s 101 (9.’

The respondent truthfully indicated that he only terminated the employment on notice but not in terms of an employment code of conduct therefore the termination was unlawful.”

The analysis by the arbitrator clearly sets out the legal position, it can not be faulted.

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JUDGMENT NO LC/451/13

The law does provide, as set out by the arbitrator, in s 12B of the Labour Act [Cap 28:01] (“the Act”) that:

“A person is unfairly dismissed if it cannot be shown that they have been dismissed in terms of a relevant code of conduct.”

One cannot argue with such a clear provision of law. The appellant has not shown that the respondent was dismissed in terms of a Code of Conduct.

This does not bar parties from agreeing to terminate their relationship. The law only requires that it be shown that the termination was by mutual consent. The appellant could have sought the respondent’s consent.

The law has also provided another way of terminating employment contracts. An employer can retrench if an employer chooses to retrench, then they must follow certain laid down procedures.

So the law did not leave someone who finds themselves in the appellant’s position without a way of terminating employment contracts. They must just follow lawful procedures.

The mere giving of notice under s 4 of the act does not mean that the provisions of s 12B can be dispensed with. Where an employer is to lawfully terminate, they can give the required notice period or cash in lieu of notice.

Section 12 B(i) creates the right not to be unfairly dismissed. Unfair dismissal under s 12 B(2) includes a dismissal other than in terms of a Code of Conduct.

A reading of the provisions of this section 12 B shows that the appellant unfairly dismissed the respondent.

In the result, the appeal lacks merit and must be dismissed. I therefore order as follows:

The appeal be and is hereby dismissed with costs.

HOVE J

JUDGE – LABOUR COURT

Masawi & Partners, appellant’s legal practitioners

James Makiya Lawyers, respondent’s legal practitioners

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