Misconduct in terms of the National Employment Code of Conduct in Zimbabwe

In the absence of a registered Code of Conduct in Zimbabwe, the Labour (National Employment Code of Conduct) Regulations, 2006 serves as a default Code of Conduct. The purpose of the Labour (National Employment Code of Conduct) in Zimbabwe is to create certainty by spelling out what constitutes an act of misconduct in a given work place in Zimbabwe and the penalty to be imposed against such an employee for the commission or omission of such an offence.

In terms of section 4 of the Labour (National Employment Code of Conduct) in Zimbabwe, the following constitute acts of misconduct in Zimbabwe:

• (a) any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract;
• (b) wilful disobedience to a lawful order; or
• (c) wilful and unlawful destruction of the employer's property; or
• (d) theft or fraud; or
• (e) absence from work for a period of five or more working days without leave or reasonable cause in a year; or
• (f) gross incompetency or inefficiency in the performance of his or her work; or
• (g) habitual and substantial neglect of his or her duties; or
• (h) lack of a skill which the employee expressly or implied held himself or herself out to possess.

In DHL International (Pvt) Ltd v Tinofireyi 2014 (2) ZLR 546 (S) it was held that not all acts of misconduct that are inconsistent with the express or implied conditions of one’s employment warrant the penalty of dismissal.

Resultantly, where an employee commits a section 4 i.e., dismissible act of misconduct in terms of section 4 of the Labour (National Employment Code of Conduct) in Zimbabwe, dismissal is not mandatory, but discretionary on the part of the employer in terms of section 7(3) of the National Code of Conduct in Zimbabwe which provides as follows:

“The dismissal penalty to be imposed for an offence in section 4 is not obligatory but is meant as a guide to employers and an employer may, at his or her discretion apply a lesser penalty for example, a written warning.”

Once an employer has established that an employee has committed a dismissible act of misconduct in terms of section 4 of the National Code of Conduct in Zimbabwe, the discretion whether or not to dismiss the employee lies solely with the employer alone, and no one else including a conciliator, arbitrator or appellate court.

Put differently, the question of an appropriate penalty to pass once an employee has been found guilty of misconduct is within the discretion of the employer. It is an established principle of law in Zimbabwe, that an appellate court, arbitrator or tribunal cannot substitute its own discretion for that of an employee. For an appellate court to interfere with a penalty imposed by an employer in Zimbabwe in the exercise of its discretion, there is need to adduce proof that the exercise of the discretion was impeachable. see Innscor Africa (Pvt) Ltd v Chimoto SC 64-12 and National Employment Council for the Catering Industry v Kundeya & Others SC 35-16.