Happison Muchechetere v Zimbabwe Broadcasting Corporation (Private) Limited & Others

The appellant was employed as CEO of the first respondent (Zimbabwe Broadcasting Corporation) from 2009 until the dissolution of its Board in 2013, on a contractual basis with the last contract renewed in May 2011. On 14 November 2013, he was placed on paid leave pending an audit. On 30 January 2014, he was notified of misconduct allegations discovered during the audit and his paid leave was changed to unpaid leave. On 18 November 2014, he was served with a notice to attend a disciplinary hearing before the second respondent (a retired judge) on 32 charges, which were later reduced to 11. The disciplinary hearing found him guilty on 7 of 11 charges on 22 April 2015. The appellant filed submissions in mitigation on 8 May 2015. However, on 19 May 2015, the first respondent's Board itself considered the mitigation submissions and resolved to dismiss him, communicating this on 21 July 2015. The appellant challenged the disciplinary proceedings and dismissal on review in the Labour Court, which dismissed his application on 10 March 2017.

• Whether an employee can be charged with misconduct committed during the currency of an expired fixed-term contract of employment when a new contract has been entered into with the same employer
• Whether sections 4 and 6 of SI 15/2006 (Labour National Employment Code of Conduct Regulations) permit disciplinary proceedings for misconduct committed under a previous contract where there is continuous employment
• Whether it was competent for the employer (first respondent's Board) to determine and impose the penalty of dismissal after the disciplinary authority had pronounced the guilty verdict but before completing the sentencing phase of the proceedings
• Whether the employer's assumption of the sentencing function constituted a gross irregularity vitiated the disciplinary proceedings

The appeal succeeded in part, with each party bearing its own costs. The judgment of the Labour Court was set aside and substituted with an order: (a) dismissing the first, second and third grounds for review; (b) upholding the fourth ground for review; (c) remitting the matter to the disciplinary authority to consider the parties' submissions in mitigation and aggravation and thereafter pronounce the appropriate penalty; and (d) each party to bear its own costs.

Where an employee's fixed-term contract of employment is renewed immediately upon expiry without interruption to the employment relationship, the employment is continuous and the employee can properly be charged with misconduct committed during the previous contract(s). Sections 4 and 6 of SI 15/2006 (Labour National Employment Code of Conduct Regulations) must be interpreted purposively to avoid the absurdity that would result if employees could escape accountability for misconduct committed under a previous contract merely because it has expired and been replaced. Where an employer appoints an independent disciplinary authority to conduct proceedings, that authority must complete the entire process including the sentencing phase (consideration of mitigation and aggravation and imposition of penalty). It is grossly irregular and violates natural justice and the constitutional right to a fair hearing for the employer to assume the sentencing function after the disciplinary authority has pronounced a guilty verdict but before completing the proceedings. Such irregularity renders the sentencing phase a nullity.

The Court noted there appears to be a lacuna in the law regarding whether parties can be dismissed for acts of misconduct committed under prior employment contracts, and suggested it may be salutary to have a statutory provision addressing this issue. The Court observed that contracts of employment, once concluded, create an employment relationship that is regulated by statute beyond the contractual terms, and the contract may be regarded as merely the founding act of a relationship whose content and duration is regulated by statute, regulation or collective agreement. The Court emphasized the constitutional guarantee in section 69 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 to a fair hearing before an independent and impartial court or tribunal. The Court invoked the principle that 'justice must not only be done, but must be seen to be done' in rejecting circumstances where the employer acts as both prosecutor and judge. The Court also noted the principle that the Legislature is presumed not to intend absurdity in statutory interpretation, and that interpretation must consider not only what a provision says but also what it does not say.

This case establishes important principles in South African and Zimbabwean labour law regarding: (1) the concept of continuous employment and the employer's right to charge employees with misconduct committed during previous fixed-term contracts where the employment relationship continues uninterrupted; (2) the proper procedure for disciplinary hearings, particularly that the same disciplinary authority that hears the case and pronounces the verdict must also conduct the sentencing phase including consideration of mitigation and aggravation; and (3) that an employer cannot usurp the role of an independent disciplinary authority midstream in proceedings, as this violates principles of natural justice and the constitutional right to a fair hearing before an independent and impartial tribunal. The case also addresses a lacuna in the law regarding whether employees can be charged for misconduct under expired contracts.