Benard W Bare and Nyaradzo Matindike v Fidelity Life Assurance of Zimbabwe (Pvt) Ltd

The applicants were senior management employees of the respondent - the first applicant was General Manager – Finance and Administration and the second applicant was General Manager – Life & Health. Both were separately charged with multiple counts of misconduct under the employer's registered Employment Code of Conduct. The first applicant faced 7 charges (including fraud and unsatisfactory work performance), was found guilty on 5 counts and dismissed. The second applicant faced 5 charges (including fraud, conflict of interest violations, and causing prejudice in property purchase), was found guilty on 3 counts and dismissed. Both lodged appeals in July 2018 to the Managing Director as provided in the Code of Conduct. The appeals were never determined. The applicants requested the record of proceedings and referred the matter to a Labour Officer in September 2018, but the respondent failed to provide the record and did not attend hearings set for 31 October and 7 November 2018. The Labour Officer could not determine the matter without the record and in the respondent's absence. Close to a year later, the appeals remained unresolved, prompting this application for a mandatory interdict.

• Whether the applicants have a clear right to have their appeals determined by the respondent in terms of the Employment Code of Conduct
• Whether the respondent's failure to determine the appeals within a reasonable time constitutes an infringement of the applicants' rights
• Whether the applicants have adequate alternative remedies that would defeat the application for a mandatory interdict
• How to interpret the Code of Conduct where the Managing Director (designated as appeals authority) is conflicted by being the complainant in the disciplinary proceedings
• Whether the court should grant a mandatory interdict compelling the respondent to determine the appeals and provide records of proceedings

The court ordered: (1) The respondent must hand down a determination on both appeals within 7 days of service of the order; (2) The respondent must compile complete records of the disciplinary hearings and deliver them to the applicants within 7 days of service; (3) The respondent shall bear costs on a legal practitioner and client scale.

Where an employer's Employment Code of Conduct provides for an appeals procedure, employees have a clear and enforceable right to have their appeals determined within a reasonable time. Where the designated appeals authority (Managing Director) is conflicted by being the complainant, the employer must still facilitate the appeal by constituting an alternative appellate tribunal of similar stature, such as the Human Resources Committee of the Board. A deficient code of conduct must be interpreted sensibly and flexibly to achieve its purpose of according employees their right of appeal. An employer cannot avoid its obligation to determine appeals by claiming conflict of interest while simultaneously refusing to provide alternative mechanisms or cooperate with external processes. For an alternative remedy to defeat an application for mandatory interdict, it must be adequate in the circumstances, ordinary and reasonable, be a legal remedy, and grant similar protection - mere theoretical availability is insufficient if the employer's conduct renders it ineffective.

The court made strong observations about the respondent's conduct, stating it sensed "a deliberate and concerted effort on the part of the employer to frustrate the appeals" and "a discernible element of arrogance" in the employer's steadfast refusal to accord employees their rights. Mathonsi J endorsed with approval the remarks of Ntsebeza AJ in Khoza v Sasol Ltd about employers who "flaunt their financial muscle in what appears to be an obscene game of cat and mouse" to wear down employees through delay, denying justice by delaying it. The court also observed that it is "naïve to say that the decision to dismiss is unassailable and the matter must end there without exhausting the internal remedies available." These comments reflect judicial concern about power imbalances in employment relationships and employers using procedural obstacles to avoid accountability.

This case is significant in Zimbabwean labour law for establishing that: (1) employers cannot frustrate internal appeal processes by claiming conflicts of interest without providing alternative mechanisms; (2) deficient employment codes must be interpreted flexibly and sensibly to give effect to employees' appeal rights; (3) courts will grant mandatory interdicts to compel employers to determine appeals where domestic remedies are deliberately obstructed; (4) suggested alternative remedies must be adequate, ordinary, reasonable and provide similar protection to defeat a mandatory interdict application; (5) employers who use delay tactics and financial muscle to wear down employees will face punitive costs orders. The judgment reinforces the principle that employees must be allowed to exhaust internal remedies before seeking external resolution, but that employers cannot abdicate their responsibility to facilitate those internal processes. It also demonstrates judicial willingness to intervene against employers who show callous disregard for procedural fairness.