Suspension may be of two kinds; it may be imposed either as a precautionary measure to enable the employer to carry out investigations pertaining to a suspected misconduct pending disciplinary action or as a form of disciplinary penalty. In both instances, it is imperative that the letter of suspension specify the reasons for the suspension, terms of suspension (whether it is with pay or without pay and benefits) and the duration of the suspension.

Under common law, unilateral suspension of either type does not relieve the employer of the duty to pay the employer. However, through legislative intervention, mostmodern-day codes of conduct provide for suspension from employment without pay or benefits. The Labour (National Employment Code of Conduct) Regulations,2006. (S.I 15 of 2006) which is the model code provides as follows in Section 6(1) as part of the disciplinary procedure;

“Where an employer has good cause to believe that an employee has committed a misconduct mentioned in Section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension”

Similarly, the Public Service Regulations (S.I 1 of 2000) which covers members of the civil service in Section 48(1) provides as follows;

“A disciplinary authority may at any time, by written notice, suspend from service a member who is suspected of misconduct or is subject to criminal investigation or prosecution if his continued attendance at work or continued performance of his duties or service, as the case may be, would be conducive to unbecoming or indecorous behaviour or further instances of misconduct…”

An employee who is on suspension is under a legal obligation to avail himself for duty to his employer during the period of suspension and that if such employee takes employment during the period of suspension, he repudiates his contract of employment.   See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S) In that case GUBBAY JA (as he then was) said at p 150:

“The effect of informing an employee that he is suspended was considered by FEETHAM J in Gladstone v Thornton’s Garage, supra at 119.   This is what was said:

 ‘When an employee is “suspended” it appears to me that apart from any express instructions he must hold himself available to perform his duties if called upon; though for the time being he is debarred from doing his work.   It appears to me that that is distinct from dismissal – the use of the term “suspended” is an indication that, while he is not to perform his duties, he must still remain bound to his employer under his contract of service.’

 In Tel One (Pvt) Ltd v Kumuyani Zulu SC 110/04 it was underscored that the obligation of an employee who is placed under suspension to hold himself available to performing his duties if called upon to do so, is one which arises by operation of law.   It is of no consequence therefore that no provision in that regard is contained in the contract of employment; and it is not necessary for the employer at the time of suspension to so inform the employee of that obligation.

The principle that emerges from the above authorities is that an employee who is on suspension has a legal obligation to be available for employment by his employer.   He cannot take up employment while on suspension as that has the effect of terminating his previous employment by way of repudiation.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2022

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It must be stated that the Labour Act (Chapter 28:01) does not specifically deal with a situation where an a employee fails to tender services because of a vis major, simply put an act of God which is beyond anyone’s control like in the case the coronavirus.

Usually under common law the “no work, no pay” principle applies where an employee is absent from work other than on public holidays or lawful leave. This means that an employee who does not render any service to the employer is not entitled to receive any remuneration for the respective period of absence. See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S). It submitted that the “no work no pay principle” does not apply in the coronavirus induced absence because the failure to render services is not the employee’s fault. To hold otherwise would be contrary to the objectives of the Labour Act which is to advance social justice and democracy in the workplace by the promotion of fair labour standards. (Section 2A (d).)

Most employers, as a cost cutting measure, have resorted to sending their employees on forced unpaid leave. Regrettably our law does not recognize forced unpaid leave at the instance of the employer. In terms of Section 14A(5) of the Labour Act the employer may grant vacation leave without pay where an employee has no vacation leave accrued but wants to go on leave. Hence unpaid leave can only be granted at the instance of the employee not vice versa.

As a lawful measure to cut costs, the employer can ask employees who have accrued vacation leave days to proceed on leave and exhaust leave days as provided in terms of Section 14A(2) of the Labour Act. It must be emphasized that the employer has discretion to determine when the employee shall proceed on vacation leave hence, it is submitted that employees have no legal basis to resist an order that they proceed on vacation leave during the COVID-19 lockdown. In this instance the employee on vacation leave will be entitled to receive their remuneration in full.

In the instance where the employer cannot afford to pay its wage bill due to the COVID-19 induced effects, the employer can make use of Part X of the Labour Act which deals with Collective Bargaining Agreements (CBAs) negotiated by and between employers and employees. Collective Bargaining Agreement (CBA) refers to a written contract negotiated through collective bargaining for employees by one or more trade unions or workers’ committee with the management of a company or employers organization in a particular industry, that regulates the terms and conditions of employees at work. A CBA may  lawfully make provision for the affordable rates of remuneration during the lockdown period. They may agree to forego certain benefits or agree to defer payments until production resumesn. It should be stated that this route may not be easy to follow due to bickering between parties because of competing interests and they may be need for a neutral arbiter which brings us to the next option.

Another viable option is for the employer to apply for an exemption (total or partial) from paying wages for a particular period. The application is addressed to the National Employment Council (NEC) in the industry’s respective sector. The NECs are established in terms of Part VIII of the Labour Act. In terms of Section 62(1) (a) of the Labour Act, an employment council is charged with the duty to assist its members in the conclusion of CBAs or prevent disputes from arising and to settle disputes that may have arisen between employers or employers’ organizations on the one hand and employees, workers committee or trade unions on the other hand.

It is submitted that works councils and the national employment councils (NEC) remain effective engagement platforms for workers and employers to engage and agree on measures that take into consideration respective peculiarities of establishments to craft workplace measures to mitigate the effects of COVID-19.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

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