CIMAS Medical Aid Society v Tapiwa Nyandoro

The respondent was employed by the appellant as Managing Director for the Health Care Division. On 23 July 2008, he was suspended from duty on allegations of misconduct for contravention of provisions of the Labour (National Employment Code of Conduct) Regulations S.I. 15/2006. The hearing officer appointed by the appellant found the respondent not guilty of the charges. After acquittal, the respondent wrote to the appellant requesting payment of money which he said would form part of an exit package to be agreed upon, rather than insisting on being taken back to work. The appellant deposited the money into the respondent's bank account but did not respond to the letter or make a counter-offer on the exit package. While on suspension, the respondent was doing work for Graniteside Chemicals (Pvt) Ltd. The appellant did not serve a notice in writing removing the suspension and reinstating the respondent as contemplated by s 6(2)(b) of the Code. The respondent then approached a Labour Officer alleging unfair labour practice for failure to reinstate him. The matter was referred to compulsory arbitration.

• Whether the employer committed acts of unfair labour practice by not reinstating the employee after he was found not guilty of misconduct charges
• Whether an employer is under an obligation to serve a notice of removal of suspension under s 6(2)(b) of the Labour (National Employment Code of Conduct) Regulations after an employee is acquitted of misconduct charges
• Whether an order of reinstatement with damages in lieu of reinstatement is competent in circumstances where there has been no dismissal but only suspension
• Whether the matter was prescribed
• The appropriate remedy where an employee on suspension is found not guilty of misconduct charges

The appeal was allowed with costs. The order of the Labour Court was set aside and substituted with an order allowing the appeal with costs and setting aside the arbitral award, substituting it with a finding that the appellant was not guilty of unfair labour practice as claimed. The cross-appeal was dismissed with costs.

An employer is not under an absolute obligation to serve a notice of removal of suspension under s 6(2)(b) of the Labour (National Employment Code of Conduct) Regulations after an employee is found not guilty of misconduct charges. Whether to serve such notice depends on the circumstances of the case and the exercise of the employer's discretion. Failure to serve a notice of removal of suspension is not necessarily unfair conduct - it depends on the circumstances. An employer may be entitled not to serve the notice if the employee's behaviour satisfies any reasonable employer that the employee regards the employment relationship as having broken down and no longer wants to work for the employer. The word 'reinstatement' in s 6(2)(b) of the Code has a limited meaning (removal of suspension to resume work) and does not have the same meaning as reinstatement following unfair dismissal (restoration to former job with no loss of salary and benefits, with back-pay). An order of reinstatement coupled with damages in lieu of reinstatement is only competent where there has been a finding of unfair dismissal, not in cases of mere suspension. A suspended employee does not lose employee status and remains employed unless and until dismissed.

The court made general observations about the concept of back-pay, noting it is associated with reinstatement following unfair dismissal and forms a major element of damages payable in lieu of reinstatement. The court noted that an employee who considers himself unjustly dismissed must look for alternative employment and cannot sit around and do nothing, otherwise damages will be reduced. The court also observed that reinstatement in its ordinary meaning suggests that the period of service between dismissal and resumption of service is deemed unbroken. The court referenced Irish and South African authorities on the meaning of reinstatement to support its reasoning, though these were not binding on the Zimbabwean court.

This case is significant in Zimbabwean labour law for clarifying the distinction between suspension and dismissal, and the different meanings and remedies associated with 'reinstatement' in each context. It establishes that an employer's obligation under s 6(2)(b) of the Labour (National Employment Code of Conduct) Regulations to reinstate an employee found not guilty of misconduct is discretionary and depends on the circumstances of the case, including the employee's conduct. The judgment clarifies that orders for reinstatement with damages in lieu are only appropriate in unfair dismissal cases, not in cases involving mere suspension. It provides guidance on when an employer may legitimately refuse to lift a suspension based on the employee's conduct indicating they no longer wish to continue the employment relationship.