Section 12B(2)(a) and(b) of the Labour Act Chapter 28:01 provides that an employee is unfairly dismissed if the employer fails to show that it 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 section 101(9).” (Underlining is for emphasis).
The Labour (National Employment Code of Conduct) Regulations S.I 15 of 2006 is the model code envisaged in s 12B(2)(b) above. It is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the workplace.
In Chikomba Rural District Council v Pasipanodya 2012 (1) ZLR 577 (SC) the Supreme Court had this to say about applicability of the model code;
“There can be no doubt, regard being had to the provisions in the Act and the Regulations to which reference has been made, that the submission by the appellant that it was entitled to use either the Act or the Regulations or both is not tenable. Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations 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.
The submission that the appellant was entitled to use the National Employment Code of Conduct because the parties had agreed that the code could be used is equally without merit. Clearly any agreement entered into between the parties had to comply with the specific provisions of both the Act and Regulations. Any agreement to the contrary would be against the law and a termination of employment based on such agreement would be null and void. That statutory provisions override the common law goes without saying”
The Supreme Court as per Chikomba Rural District Council v Pasipanodya cited above adopted a restrictive and straight jacket approach and held that the model code could only be invoked where there is no registered code and that even an agreement to resort to the model code was a nullity at law. In the result it set aside proceedings which had been carried out by the employer in terms of the model code where there was a domestic code.
The paradigm shifted in City of Harare v Masinire SC 56/18 where the Supreme Court adopted a more liberal approach. It stated that;
“According to Professor Lovemore Madhuku both section 12B (2) of the Labour Act and section 5 (b) of SI 15 of 2006 compel the use of SI 15 of 2006 in the absence of a registered code of conduct. The expression, ‘in the absence of’ must be interpreted purposefully. The mere existence of a registered code of conduct is not sufficient to oust resort to SI 15 of 2006. There must be a registered code of conduct applicable to the case in question. Where there is a registered code of conduct which is inapplicable to the circumstances of the case, there is, ‘the absence of an employment code’ for purposes of section 12B of the Labour Act and section 5 (b) of SI 15 of 2006… One cannot apply a metal straight jacket and conclude that in every situation where an employment code of conduct exists, it automatically follows that such a code of conduct should solely be used to the exclusion of the National code of conduct. This is the sort of case which the learned author had in mind when he made the above remarks. The domestic code of conduct being inapplicable to the case at hand, ways had to be found of resolving the labour dispute confronting the parties.”
The court went further and held that;
“I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.”
It is submitted that the approach adopted by the Supreme Court in City of Gweru v Masinire, which is more purposeful than restrictive is progressive and accords with the intention of the legislature in formulating S.I 15 of 2006.Going by this latest judgment, the applicability of S.I 15 of 2006 is not limited to scenarios where the employer has no domestic code, but even where the domestic code is available but cannot for justifiable reasons apply to a particular case. Without being exhaustive, justifiable reasons may include where the employer is unable to constitute a quorum at law in terms of the domestic code. The jury remains out as regards what constitute justifiable reasons for resorting to the model code where there is a domestic code of conduct in place.
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