Edmore Chinowaita and Tariro Patsikadova v Air Zimbabwe (Private) Limited

The applicants were employees of the respondent (Air Zimbabwe (Pvt) Ltd), one as a cargo checker and the other as a cargo officer. While on leave, they flew to Mauritius for a wedding, each taking a bag containing cigarettes as part of their baggage. Upon arrival in Mauritius, their bags were seized by customs officials for containing "excess cigarettes" which had not been declared. The allegation was that they were attempting to smuggle cigarettes. Upon return from holiday, both applicants were charged with misconduct under the Code of Conduct being used by the respondent: (1) acting in a manner likely to bring disrepute on the Corporation's image, and (2) abuse of staff travel cargo carriage concessions. After appearing before the Departmental Hearing Committee, their cases were referred to the Disciplinary Committee, which found the initial findings incomplete. The Disciplinary Committee questioned the applicants directly and found they were not on duty, were unaware carrying cigarettes to Mauritius was prohibited, went through legal processes, and were remorseful. Despite these findings, the Chairman used a casting vote to dismiss both applicants.

• Whether the Code of Conduct registered for Air Zimbabwe Corporation legally applied to employees of Air Zimbabwe (Private) Limited, the successor company
• Whether the Code of Conduct used by the respondent was properly registered in terms of the Labour Relations (Employment Codes of Conduct) Regulations, 1990
• Whether the Disciplinary Committee usurped the functions of the hearing committee by conducting its own inquiry
• Whether the hearing committee was properly constituted
• Whether the charges were properly formulated and whether the decision was based on the allegations and evidence
• Whether smuggling while off duty constituted misconduct under the Code of Conduct
• Whether termination without ministerial approval under S I 371 of 1985 was lawful

The court ordered: (1) The discharge of the applicants is set aside; (2) The respondent reinstate the applicants without loss of benefits and pay them their full salary and benefits from the date of their discharge; (3) The respondent pay the applicants' costs.

A Code of Conduct registered in terms of the Labour Relations (Employment Codes of Conduct) Regulations, 1990 for one employer (Air Zimbabwe Corporation) does not automatically apply to a successor company (Air Zimbabwe (Private) Limited) and its employees, even where the successor company takes over the business as a going concern and re-employs former employees of the predecessor. The provisions of section 16 of the Labour Relations Act concerning transfer of undertakings cannot be interpreted as transferring an employment code of conduct. Where no registered employment code of conduct applies to employees, termination of employment requires prior written approval of the Minister of Labour in terms of S I 371 of 1985. For conduct to constitute misconduct under a code of conduct, it must fall within the specific provisions of the code charged; a finding of fact (smuggling) is insufficient without a finding that the conduct satisfies the legal elements of the misconduct provision (bringing disrepute or abuse of concessions).

The court observed that it would be anomalous to hold that a group of employees absorbed by another undertaking would continue to be bound by the code of conduct registered for their former employer, while other employees would be bound by a different code. The court noted the example of National Handling Services (Pvt) Ltd taking over the Cargo Services Department and questioned whether it could be argued that the Corporation's code would apply to that company and its employees. The court also commented that the Air Zimbabwe Corporation still existed as a body corporate despite having no assets, liabilities or employees, and could only be dissolved by Presidential statutory instrument under section 11 of the Air Zimbabwe Corporation Act when satisfied that all transfers were complete. On the procedural issues, the court observed that according to the Code of Conduct, smuggling goods while on duty is defined as misconduct, but the qualification that the employee must be on duty means that smuggling when off duty is not ipso facto an act of misconduct.

This case is significant in Zimbabwean labour law for establishing important principles regarding the application of employment codes of conduct when undertakings are transferred or succeeded by new corporate entities. It clarifies that codes of conduct registered for one employer cannot automatically transfer to a successor company, even when the successor takes over the business as a going concern and re-employs the same workers. The case reinforces the requirement for proper registration of employment codes of conduct under the Labour Relations (Employment Codes of Conduct) Regulations, 1990, and emphasizes that ministerial directives cannot override statutory requirements. It also demonstrates the courts' willingness to scrutinize disciplinary procedures to ensure that findings of misconduct are properly based on the specific conduct alleged in the charges, not merely on factual findings that do not correspond to the misconduct provisions invoked.