Pioneer Transport (Private) Limited v Elizabeth Ana da Silva

The respondent was employed as Finance Director by the appellant on a 3-year renewable contract commencing 1 April 2013. After successful completion of probation, she was confirmed on 2 August 2013. On 12 February 2014, the managing director wrote expressing displeasure at her alleged incompetent performance and warned that the next three months would be decisive. On 18 July 2014, the managing director terminated her contract with effect from 31 August 2014, referring to discussions on 30 June 2014 regarding her performance and company restructuring. The respondent disputed the lawfulness of the termination, claiming due process was not followed. The matter proceeded to arbitration, where the appellant claimed the termination was by mutual agreement reached on 30 June 2014. The arbitrator found the termination was neither mutual nor lawful and ordered reinstatement or damages. The Labour Court dismissed the appellant's appeal. The appellant then appealed to the Supreme Court, shifting its argument to claim it had a common law right to terminate on notice under section 12(4) of the Labour Act.

• Whether the employment contract was terminated by mutual agreement between the parties
• Whether the employer could unilaterally terminate the employment contract on notice under section 12(4) of the Labour Act in circumstances where the termination was linked to performance issues and restructuring
• Whether the arbitrator misdirected himself in finding the termination unlawful
• Whether the Labour Court erred in upholding the arbitral award
• Whether an employer must follow disciplinary procedures when terminating employment ostensibly on notice but where the underlying reason relates to poor performance

The appeal was dismissed with costs.

Where an employer purports to terminate an employment contract on notice but the termination is inextricably linked to the employee's performance or conduct issues, the employer cannot rely on the general right to terminate on notice under section 12(4) of the Labour Act to bypass the specific procedural requirements for dismissal based on performance or misconduct. An employer who shifts its legal basis for termination at different stages of proceedings - from mutual agreement to termination on notice - cannot thereafter rely on grounds not properly pleaded or argued before the tribunal of first instance. Where mutual termination is alleged, it must be proved and should be in writing; in the absence of proof of mutual agreement, a termination letter referring to performance issues renders the termination unlawful if proper disciplinary procedures were not followed.

The Court noted that the appellant appeared to be attempting to rely belatedly on the judgment in Don Nyamande v Zuva Petroleum (Private) Ltd SC 43/15, wrongly believing it could terminate on notice despite the underlying reason relating to poor work performance. Garwe JA observed that the appellant's shifting defenses belied its belated attempt to rely purely on common law rights to terminate on notice, questioning why the appellant would need to call evidence to prove a unilateral decision to terminate on notice if that had truly been its position from the outset. The Court also remarked on the internal inconsistency in the appellant's pleadings, where it simultaneously claimed termination by mutual agreement and termination by notice, which are fundamentally different legal concepts.

This case is significant in Zimbabwean labour law for establishing that an employer cannot use termination on notice as a means to circumvent proper disciplinary procedures when the underlying reason for termination relates to employee performance or misconduct. The case demonstrates the importance of consistency in legal pleadings and that courts will scrutinize shifting defenses, particularly where an employer changes its basis for termination at different stages of proceedings. It reinforces that where termination is linked to performance issues or restructuring, employers must either institute proper disciplinary proceedings or negotiate a mutual termination agreement in writing. The judgment also clarifies the distinction between mutual termination, unilateral termination on notice, and dismissal for cause, and that these different forms of termination cannot be conflated or used interchangeably to avoid procedural requirements.