Ngaatendwe Takawira v University of Zimbabwe

The applicant was Deputy Registrar (Academic) at the University of Zimbabwe. Following an incident at the October 2015 graduation ceremony where three replacement academic caps ordered for the Chancellor were all too big (causing a 45-minute delay), the Vice Chancellor suspended the applicant on 7 October 2015 with pay pending investigations. The applicant objected to the composition of the Disciplinary Committee on grounds of bias and filed a review application in the Labour Court (LC/H/REV/116/15) and a further High Court application (HC10478/15) seeking a stay of disciplinary proceedings. Following the filing of the review, the Vice Chancellor wrote to the applicant on 29 October 2015 changing the suspension terms to suspension without pay effective 1 November 2015. The applicant brought this urgent application seeking reinstatement of her salary and benefits, challenging the variation of the suspension terms.

• Whether an employer can unilaterally vary the terms of an employee's suspension from 'with pay' to 'without pay' after the initial election has been made and communicated
• Whether the principle of election binds an employer to the suspension terms originally communicated to an employee
• Whether an employee can be penalized for exercising their right to seek judicial review by having suspension terms altered
• The requirements for granting interim relief in the form of an interim interdict

Interim relief granted ordering the respondent to immediately reinstate the applicant's salary and benefits pending determination of the matter on the return date. The court issued a rule nisi calling on the respondent to show cause why: (1) the variation of suspension terms communicated on 29 October 2015 should not be declared unlawful; (2) the status quo of suspension with pay as per the 7 October 2015 letter should not be maintained; and (3) the respondent should not pay costs on an attorney and client scale.

Once an employer elects to suspend an employee on specific terms (with or without pay) and communicates that decision to the employee, the employer is bound by that election and cannot unilaterally vary the terms of suspension. The election must be made at the time of suspension. An employee cannot be penalized for exercising their lawful right to seek judicial review or other legal remedies by having the terms of their suspension altered to their detriment. Sections 6(1)(e) and 7(b) of the Labour Act protect employees from being hindered, obstructed, or penalized for seeking access to lawful proceedings to advance or protect their rights.

The court made observations questioning why the applicant needed to be investigated and suspended in the first place when she was neither responsible for taking the Chancellor's head measurements nor manufacturing the caps herself, and appeared to have exercised abundance of caution in ordering caps based on information provided to her. The court also observed that the respondent could recoup any payments made during suspension from the applicant's terminal benefits if ultimately successful, minimizing prejudice to the respondent. The court noted that the fact that proceedings may be prolonged by an employee's legitimate complaints is neither here nor there and cannot be used to justify varying suspension terms.

This case establishes important principles in Zimbabwean labour law regarding employer discretion in varying suspension terms. It reinforces the binding nature of an employer's election to suspend with or without pay, protecting employees from arbitrary changes to suspension conditions after the fact. The judgment also protects employees' rights to pursue judicial remedies without fear of retaliation through adverse variation of employment terms. The case clarifies the application of the Labour Act provisions protecting employees from being penalized for exercising their legal rights.