Labour Forum July 2017

LABOUR FORUM ISSUE 2 July 2017 www.nsclabour.co.zw

04NEWS

@nsclabour on Facebook and Twitter

10PROFILE 05

LAW

HOW TO WIN AGAINST CLAIMS OF CONSTRUCTIVE DISMISSAL

July 2017. LABOUR FORUM. Page 2

EDITORIAL DEBUT ISSUE: JUNE 2017 CONTENTS

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Editorial ....................... Page 2

A note from Gladys

e hit the ground running on the 8th June 2017 when our debut newsletter came out.

Feedback from our client readers shows that the newsletter was well received. Check out on PULSE column to read what some of you said.

News ............................ Page 4 Trending Issue ............ Page 5 Labour Law ............... Page 7 Policy ............................ Page 8

We are moving into full stride and working across a range of labour matters to give you our valued clients just the information you require. If you have any special topics you want us to address, do not hesitate to contact us.

Events ....................... Page 9 FAQ’s .......................... Page 11 The Pulse .................. Page 12

We reaffirm our commitment to give the best service and are trusting that you are poised to gain valuable knowledge.

PUBLISHERS NCS LABOUR & TRAINING CONSULTANTS +263 71 261 7383 / +263 712 717 708 Unit 8 Aida Court, Windsor Park, Famona, Bulawayo. @ncslive (Facebook, Twitter, Wordpress)

We promise to continue sharing information to develop our clients

Labour Forum is NCS’s first electronic newsletter. The goal of our newsletter is to provide our established and prospective clients with news and info about human resources programs and events.

The newsletter is a free service emailed on a monthly basis with special editions throughout the year. The purpose of this newsletter is to provide our valued clients with a better understanding of the issues that have an impact on employers and employees alike.

Congratulations Makorokoto. Thank you for your debut Newsletter. Well written and laid out. - Dr & Mrs Battey Congrats Gladys and team- very well presented and informative.- Anne Middleton -ER York.

Brilliant first newsletter Gladys.

Congratulations. - Andrew ConollyAntelope Park.

Gladys Mpemba.

Editor

Very insightful. Thank you!

- Blessing V Munasti - JBC Thank you so much for the seminar (Labour Indaba), it has helped me understand a lot more. -Michelle Albasini- JBC. Editor Gladys Mpemba Non-Executive Directors Shepherd Mpemba Chido Mpemba Contributor Peter Ngorima Administrator Lucia Murumbi Design & Layout Tam’sanqa Mhepoh (+1-402-304-6540 / +263-71-292-3105) mhepoh@gmail.com Images and Illustrations Tamsanqa Mhepoh

ON THE COVER: JULIET SAMEKE DIRECTOR: JUTHEE CREATIONS

Thank you for an enlightening workshop.

Please include me in your mailing list for magazines and updates. - Tobias Moyo CIFOZ Matabeleland.

GET YOURSELF AHEAD

WITH NCS LABOUR RELATIONS PUBLICATIONS

Disciplinary Procedures & DIY – Guiding Court Contracts of employment.

Cases.

(Standard Proce- (Drafting of dures Applicable contract documents and job to All Codes) descriptions) $30.00. $30.00.

ONUS – He who Labour Act alleges must (Chapter 28:01). prove.

Updated to incorporate all (A guide to proving 26 serious amendments as offences) at 2nd March $30.00.

2007. $25.00.

Interested? Contact Gladys or Lucia on 0712 617 383 or 0712 717 708 e- mail: ncslabour@gmail.com

Retrenchment Procedures Handbook.

(A practical guide) $45.00.

NCS Labour Relations Consultants Unit 8 Aida Court, Windsor Park, 16th Ave, Famona, P.O. Box 215, BULAWAYO.

Page 3. LABOUR FORUM. July 2017

ABOUT NCS

Background NCS Labour and Training Consultants is a leading consultancy in Zimbabwe providing advice and training in Labour Relations. We form partnerships with clients and assist in diagnosis of labour problems. We have the expertise to help clients get to understand labour issues.

Gladys Mpemba (Principal Consultant)

We have developed a Unique Service Practice over the years through - Availability - Professionalism -Location -Reliance - Accuracy - Ability

Our Services Policy Training

drafting

Arbitration

18 Years in Operation

260

Labour cases, Consultation meetings, Trainings & Disciplinary hearings per year

10

The number of provinces where our clients are based in Zimbabwe

July 2017. LABOUR FORUM. Page 4

NEWS FARM WORKERS GET $3 WAGE INCREASE.

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he National Employment Council (NEC) for the Agriculture Industry of Zimbabwe awarded a four percent (4%) wage increase effective from 1 June 2017.

The new wage structure will see the lowest paid worker receiving $75.00 from $72.00 while the highest paid employee will get $150.00 from $144.00.

The Council has advised that those employers unable to pay the new wages can apply for total or partial exemption stating the reasons why their application should be considered.

Union leaders are said not to be happy with the increase citing that the 4% increase is a mockery and will not improve the plight of the workers.

LABOUR FORUM ISSUE 2 July 2017 www.nsclabour.co.zw

04NEWS

@nsclabour on Facebook and Twitter

10PROFILE 05

LAW

HOW TO WIN AGAINST CLAIMS OF CONSTRUCTIVE DISMISAL

DISCLAIMER Labour Forum is not meant to be an exhaustive legal reference or a substitute of the statutes .It is among he agreement on fixed term others, an explanatory guide to those parts contracts and gratuities was ga- of labour relations and human resources that zetted as S.I. 52/2017 and was directly affect the employment relationship. supplement to the Zimbabwe Govern- The information, opinions and views set out in ment gazette dated 14th April 2017. this publication are those of the author(s) and do not necessarily reflect the official opinion of NCS, executive members nor any of their partners.Neither NCS Labour Consultants nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. Rights to the photographs and articles remain with the photographers and with the authors respectively. Contact NCS Labour for Disabled/aged minder with Red Cross Certif- reproduction. While all care has been taken icate or similar qualification (With or without during editing, errors and omissions may slip through and we sincerely apologise for these grade 1, 2 or 3 duties) $100.00(monthly), $23.10(weekly) $4.20 MEET OUR TEAM (daily)$0.53 (hourly) SECOND SCHEDULE MONTHLY MINIMUM ALLOWANCES If a domestic worker is not granted accommodation, the following allowances become Shepherd and Chido Mpemba payable.

(Non Executive Directors) Accommodation 50.00 Transport 2 6.00 Lights 5.00 Fuel 5.00 Water 5.00 Gladys Mpemba THIRD SCHEDULE (Principal Consultant) GRATUITIES The following percentage monthly wage on termination of employment apply for an employee who has served 5 or more years: Lucia Murumbi (Administrator) Length of Service

NEC ENGINEERING, IRON AND STEEL INDUSTRY

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(Domestic Workers) Employment Regulations

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he above regulations SI 377 of 1992 are still applicable to domestic workers in a household. There are changes that were effected in the Labour Act like vacation leave, sick leave, maternity leave and special leave which now also apply to the domestic workers from when these changes were put in place e.g. a domestic worker also accrues 30 days in a year.

There are 4 grades of employees as shown below: FIRST SCHEDULE GRADING AND MINIMUM WAGES Grade 1:Yard/Garden Worker $85.00 (monthly),$19.60 (weekly), $3.60 (daily), $0.45 (hourly) Grade 2 Cook/Housekeeper (With or without grade 1 duties) $90.00(monthly), $20.79 (weekly), $3.80(daily),$0.48 (hourly) Grade 3 Child-minder or disabled/aged minder (With or without grade 1 or 2 duties) $95.00(monthly), $21.94 (weekly),$4.00 (daily)$0.50 (hourly) Grade 4

5 – 10 11 – 20 21 – 30 31 – 40 41 – 50 and above

- 15% - 20% - 25% - 30% - 35%

Godfrey Makasva (Office Assistant)

Page 5. LABOUR FORUM. July 2017

T R E N DING IS SU E EMPLOYER’S DISCRETION TO DISMISS FOR MISCONDUCT SHOULD NOT BE LIGHTLY SUBSTITUTED

By Peter Ngorima

Cases: NEC Catering Industry v Richard Kundeya and 3 Others SC-35-2016 Zimplats (Pvt )Ltd v Godide SC-02-16 See also: Muleya William v Fortwell Wholesalers LC/MT/37/17

Under what circumstances can an employer’s decision to dismiss an employee on charges of misconduct be set aside on appeal? This is the question that most employers have asked after having their dismissal decisions set aside by Labour Officers, Designated Agents, and even at the appeal courts (Labour Court and Supreme Court).

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here is a principle that superior courts will not interfere with decisions of a lower court unless such decision is irrational or in defiance of logic. This principle extends to findings made by disciplinary authorities. The reason being that, faced with a similar case and similar evidence, the court may well come to a different reasonable finding. The fact that an appeal authority disagrees with the lower court’s decision does not on its own warrant a substitution of the lower court’s decision. The test is whether the lower court’s decision was so unreasonable and so irrational that no reasonable person applying his/her mind would have arrived at the same decision.

In the matter Zimplats (Pvt) Ltd v Godide SC 2/16 the court noted that: “At common law an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfillment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. [2] It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion” In the NEC Catering case, Bhunu JA had occasion to consider whether the employer‘s decision to dismiss the employees for disobedience of a lawful order in terms of S.I 15of 2006 could

“...An employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct...” be substituted on appeal. The judge noted that: “Section 4 of the National Code of Conduct classifies both offences as serious and warranting dismissal. Where however, an employee commits a dismissible act of misconduct dismissal is not mandatory but discretionary on the part of the employer in terms of s 7 (3) of the code which provides thus: “The dismissal penalty to be imposed for an offence in section 4 is not obligatory but is meant as a guide to employers and an employer may, at his or her discretion apply a lesser penalty for example, a written warning.” (My emphasis) “It is important to note right from the outset, that where an employee commits a dismissible act of misconduct under the law vests the discretion whether or not to dismiss the offending employee on the employer alone and no one else.”

Having found that the misconduct complained of went to the root of the employment contract the judge went to hold that by substituting

the employer’s decision to dismiss, both the Arbitrator and the Labour Court were arrogating to themselves a discretion which they did not have thereby usurping the discretion of the employer under section 4 of the National Employment Code of Conduct.” The learned judge further emphasised the point that “once an employer has established that an employee committed a dismissible act of misconduct as happened in this case, the discretion whether or not to dismiss lies solely with the employer. Generally speaking, it is not for the appellate court, arbitrator or tribunal to substitute its own discretion for that of the employer.”

The above reasoning accords with earlier Supreme Court judgements to the same effect. What is important is that the employer should show the following in arriving at the decision to dismiss: • That the misconduct complained of went to the root of employment contract; • That the misconduct complained of was proved on a balance of probabilities; and/ or • That the trust reposed on the employee had been lost; and • That the employer-employee relationship had broken down.

July 2017. LABOUR FORUM. Page 6

FEATURE

BREACH OF CONFIDENTIALITY GROUNDS FOR DISMISSAL Chidembo v Bindura Nickel Corp Ltd S-35-15.

by Gladys Mpemba

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he appellant was employed by the respondent and was chairman of a workers committee. He was dismissed from employment for disclosing confidential information during conciliation proceedings. The code of conduct provided that “Information with respect to any confidential product, plan or business transaction of the group, or personal information regarding employees, including their salaries, or any business information must not be disclosed by any employee unless and until proper authorization for such disclosure has been obtained.” In the course of the conciliation proceedings, which were attended by both employer and employee representatives, a request was made to the appellant who was present as the workers committee chairman, for a list, except that it showed employees’ salaries, in addition to their names. His defence was that the information was disclosed

during a lawful conciliation hearing and in the appellant’s capacity as a worker representative, not as an employee. This was done as a bonafide step to prove the workers case. It was not an act done in the normal course and scope of the contract of employment of the appellant. Since the disclosure of the list was clearly done in the pursuit of the employee’s interest, it was lawful.

Held: The distinction between confidential information required by an individual worker and that required by a workers representative is a useful and indeed critical one, but it was questionable whether divulging of such information would nevertheless be lawful, even if it is one in blatant violation of an express provision of the code of conduct.

In spite of his position as chairman of the workers committee, the appellant was an em-

ployee of the respondent, to whom at all times, he bore the duty of trust and loyalty. His conduct in relation to the respondent was regulated and governed by the code of conduct.

An act of misconduct committed by a worker outside the workplace and in his (also work related) capacity as a workers committee member would be unlawful as long as it impacted directly on the employer’s private interests and, in addition, constituted a violation of the employer’s code of conduct.

A worker’s status as a workers committee member would not clothe him with a cloak of immunity against misconduct charges.

The appellant’s status as a workers committee chairman did not turn what was unlawful into a lawful act. His conduct became unlawful the moment he disclosed the information without the authority of the respondent.

Page 7. LABOUR FORUM. July 2017

L A B OU R L AW

HOW TO WIN AGAINST CLAIMS OF CONSTRUCTIVE DISMISSAL

by Gladys Mpemba

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he respondent was “head hunted” by the appellant and appointed as general manager of the appellant’s leading hotel in Harare. He was initially appointed, at the beginning of 2011, for a three month probationary period; the letter of appointment stated that he would be on a 5 year “executive employment “contract, which was to be negotiated. In the event, this contract was never negotiated and the respondent became an employee on a contract without limit of time. Within the first year of his employment, an audit team reported violations of the respondent’s motor vehicle loan scheme and other irregularities.

When tasked with these, the respondent did not reply directly, but complained about his conditions of service. Nonetheless, he continued in service but in August 2012, the appellant expressed its dissatisfaction with the respondent’s performance as the hotel was running at a loss instead of the expected profit.

Despite the concerns expressed, the situation did not change and the appellant told the respondent in late November 2012 that it proposed to transfer him to a hotel in Victoria Falls, at the same salary and remuneration, to expose him to the operations of a resort hotel.

The following day, the respondent’s legal practitioners wrote to the appellant, saying that the respondent had been specifically appointed as a general manager of the hotel in Harare and that no provision was made therein to transfer within the group. In addition, the appellant, it was alleged, was aware that the respondent’s wife required specialist medical care and facilities which were not available in Victoria Falls. Accordingly, the respondent could not accept the transfer. The appellant replied that its assessment of the business was such that there was need for the transfer and that the respondent would be required to transfer on 1 January 2013. Reference was made to the respondent’s conditions of employment which it was said were contained in a booklet referred to the respondent’s letter of appointment.

The respondent lodged a claim of constructive dismissal with a Labour Officer and the matter was referred to arbitration. He did not report for duty on 1 January 2013 and the appellant notified the respondent of a disciplinary hearing for being absent for 5 days or more. His legal practitioners said that he had ceased to be

an employee because he was constructively dismissed, and the respondent did not attend the hearing. At the hearing, the respondent was found guilty of misconduct and invited to tender submissions in mitigation. The arbitration hearing took place subsequently, and the arbitrator ordered the respondent’s reinstatement.

The Labour Court upheld the arbitrator’s award.

The main issue of appeal to the Supreme Court was whether the respondent was constructively dismissed in terms of section 12B (3) of the Labour Act (Chapter 28:01), on the basis that the appellant deliberately made continued employment intolerable for the respondent. The appellant took the stance that the respondent had remained in employment and had drawn a salary up to the end of January 2013, and that like all other executive employees, was bound by the transferability clause in the code of conduct governing the appellant and its employees. The respondent contended that because he was not given the booklet referred to in the letter of appointment, he was not bound by its terms and was not transferable.

Held (1) the letter of transfer stated in clear terms why the respondent was being transferred. In view of the respondent’s failings, the appellant might have been justified in terminating the employment contract on notice, but chose transfer instead. There being no reduction of benefits, there was nothing to make respondent’s continued employment intolerable.

Since the respondent’s employment contract had become one without limit of time, he was bound by the general rules of transferability in the organization. Since no further contract was negotiated. There could not be read into that contract an appointment to a specific post, for a specific period and at a specific place only.

(2) The right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown.

(3) The respondent was the general manager of the Harare hotel and it was childish to submit that he was ignorant of the code because it was not given to him. In his position, he would have

been responsible for drawing the attention of subordinate employees to the code of conduct.

It would be an affront to intelligence to say that he remained, and was content to remain, blissfully unaware of its contents throughout the period of his employment with the appellant which spanned two years. The same would apply to any code applicable to executives if that were applicable to the respondent.

(4) There was nothing in the record, either of the respondent’s recruitment or in his employment with the appellant, to suggest that the respondent’s wife was an invalid, and still less, that the appellant was aware of it. In any event, unless his contract specifically provided (which it did not) for his employment in Harare and nowhere else, because of his wife’s medical condition, that condition could not restrict the appellant in the exercise of its right to transfer the respondent as it deemed fit. The respondent, as an employee was bound by the transferability clause in the appellant’s code of conduct. Any difficulties which he had with the transfer should have been discussed with the appellant when he was given an opportunity to do so. Instead, when asked for his views, he chose to correspond through legal practitioners. The respondent had not discharged the onus of showing that the appellant’s conduct was such that it made his employment with the appellant intolerable.

(5) Where an employee commits a breach which goes to the root of the employment contract the employee is entitled to treat himself as discharged from further performance. He is constructively dismissed. However, he must act promptly. If he continued for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. The respondent did not leave at the instant nor did he give notice and say he would be leaving at the end of the notice. He continued to attend work and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right up to the end of January 2013. His was not the conduct of one constructively dismissed. He was properly dismissed for absenteeism. The appeal was allowed.

July 2017. LABOUR FORUM. Page 8

POLICY CONTRACTUAL OBLIGATIONS TO EXPECT FROM YOUR EMPLOYEES

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by Gladys Mpemba

he employment relationship is reciprocal. When parties conclude an employment contract they each incur certain rights and obligations.

The contract of employment bears both express and a heavy load of implied terms. These implied terms impose duties on the parties which much be discharged even if they have not expressly agreed to them. Failure by either party to discharge these duties has always been regarded as a breach of the employment contract, justifying termination by the innocent party and a claim for damages or an order compelling the guilty party to comply with the contract.

the tasks they agree to perform and that they will carry them out with reasonable efficiency. Where a person is employed on the basis of accolades in a testimonial or reference submitted in confidence to an employer, the employer’s remedy, if any, lies against the referee.

The main obligation of employees under the contract of employment is to place their personal services at the disposal of their employer.

The tender of service is a pre-requisite to the employee’s right to claim wages. Under both the common law and statute, an employee who does not tender service is not entitled to receive wages. Conversely, an employee who does tender service but is prevented by the employer from working is entitled to wages/salary.

Failure to tender service may take many forms ranging from desertion through absenteeism to unpunctuality.

Employees are obliged to devote their energies and skills to furthering their employer’s business interests. They must devote all their normal working hours to the employer’s business and may not without the employer’s permission simultaneously work for another employer during the hours they are contractually obliged to devote to their employer’s needs.

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TO ENTER AND REMAIN IN SERVICE.

The following factors must be considered when determining whether an employee’s absence constitutes a breach of a vital term of the contract.

•The nature of the employee’s work (the more strategically important, the more justified the dismissal).

•Whether the employee’s absence disrupted the normal course of the employer’s business.

•The length of the employee’s service with the employer.

•The reason for the employee’s absence (wilful absence is more serious than absence caused by circumstances beyond the employee’s control).

•The duration and frequency of absences.

•The provisions of any applicable disciplinary code.

2.TO MAINTAIN REASONABLE EFFICIENCY.

Employees are deemed by law to impliedly guarantee that they are capable of performing

Since the purpose of discipline in the employment context is corrective and not punitive, an employer must give an employee who proves incompetent in some respect an opportunity to correct the deficiency unless the circumstances indicate that to do so would be unreasonable to the employer.

3.TO FURTHER THE EMPLOYER’S BUSINESS

Employees may not work for another if the other’s business interests are in conflict with those of the principal employer nor may employees enter into any arrangement which creates a conflict between their own interest and those of their employers. It may, for example constitute a breach if an employee were to engage in undisclosed dealings with a business owned by his wife or her husband.

Employees are obliged to disclose such arrangements to their employers before accepting employment. Employees who secretly compete with their employer’s business for their own account breach their fiduciary duty.

The right of former employees to compete with their former employer’s business after they have left may be governed by a “restraint of trade” clause in the contract of employment.

4.TO BE RESPECTFUL AND OBEDIENT

Respect and obedience are regarded as an implied duty of every employee because absence of the former renders the interpersonal relationship between employer and employee intolerable and a denial of

the latter undermines the employer’s right to decide how its employees will work.

5.TO REFRAIN FROM MISCONDUCT GENERALLY

Any misconduct that renders the continuation of the employment relationship intolerable or unworkable or that undermines trust and confidence between employer and employee is regarded as sufficient to justify dismissal, provided it is serious enough to offset the importance which the courts and arbitrators otherwise attach to the work security of employees.

It is impossible to exhaustively enumerate the various forms of misconduct which the courts have held to justify termination of the contract, and they include or overlap with breaches of the duties already discussed. Insubordination involves a breach of the employee’s obligation to obey their employers. So, too theft may be regarded as a breach by employees of their duty to act in good faith towards their employers.

With regard to misconduct committed before the formation of the contract – for example the commission of a serious crime – the general principle is that there is no duty on prospective employees to disclose prejudicial information from their past to their future employers unless they are specifically asked to do so. A duty to disclose may, however, arise where non-disclosure is fraudulent where the past misconduct would render the prospective employee unfit for the employment offered or perhaps, where the employer can prove that, but for the employee’s failure to disclose, another applicant would have been employed.

In principle, labour courts accept as valid grounds for dismissal the forms of misconduct enumerated above with the provisions that: •The dismissal must be proceeded by a fair hearing to enable the employees to defend themselves; •The employer must prove that the employee concerned in fact committed the misconduct alleged; •The misconduct must be such as to render the continuation of the employment relationship impossible or intolerable.

•The employer must consider the possibility of a penalty less drastic than dismissal.

Page 9. LABOUR FORUM. July 2017

EVENTS EVENTS TO LOOK FORWARD TO THIS WINTER 1. IODZ PROFESSIONAL DIRECTOR DEVELOPMENT WORKSHOP ON BUSINESS ETHICS Challenges of chairing boards in the prevailing environment an din particular, key issues concerning the implementation of the National code on corporate governance On Friday 28 July 2017 @Manna Resorts – Harare Time: 9.00- 14.00hrs Investment: Members- US$150 / Non-members - US$170 Bookings - email: admin@iodz.co.zw Telephone: + 263 4 332442 Directions to the venue on the map below.

# Q u o t e s 4 S u c c c e s s Once you choose hope, anything’s possible.

- Christopher Reeve A good leader must be able to understand how people feel (show empathy) without caring what people think (show courage).

-Alan Panken.

It is never too late to be what you might have been. - George Eliot.

You can, you should and if you are brave enough to start, you will.

- Stephen King.

Ambition is the path to success. Persistence is the vehicle you arrive in.

- Bill Bradley.

2. 201 7 MINE ENTRA

3. IPMZ ANNUAL CONVENTION AND EXHIBITION Theme: HR WINNING THE RACE ON THE MARKET. On 26 -29 July 2017 @Elephant Hills Hotel – Vic Falls Bookings - email: information @ipmz.co.zw Telephone: + 263 4 700712/20.

Directions to the venue on the map below.

Register and pay to attend upcoming events from the comfort of your office or mobile phone.

Simply visit the NCS Events page online. www.ncslabour.wordpress.com

July 2017. LABOUR FORUM. Page 10

PROFILE

Chris accepting trophy for best exhibitor at the 2016 ZITF show sale from guest of honour and Togolese president Faure Gnassingbe.

When integrity meets business acumen the result is an employer-par excellence.

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by Tam’sanqa Mhepoh

eads and Hooves is a household name in Bulawayo.

For almost two decades now Heads and Hooves butchery has positioned itself as a supplier of top quality matured pen fed beef and show beef.

The number of accolades Heads and Hooves receives, year in – year out, is testimony of a company whose foundation is anchored on excellence or perhaps, evidence that it is run by the best in the game. Christopher Androliakos is the man at the helm of Heads and Hooves, the quality of its products and the market share it commands in Matabeleland.

But in a feat of modesty, Androliakos attributes

the kingdom of God known to other people.”

However, after a conversation with Androliakos, I was convinced that he is a very principled man.

He strives to be a fair and reasonable business person.

He prides himself in the quality of work that he produces and also prioritises “quality over quantity” in all of his business operations at Heads and Hooves.

A farmer by profession, Androliakos obtained his national diploma in Animal husbandry, Field husbandry, Agricultural engineering and farm management with first class distinctions in 1986.

He worked at Marcerdale Farm, an enterprise

“...Androliakos’ compliance with labour laws compliments his experience in the trade and that adds up to his success.” the excellence to his employees and his family.

“I cannot have got to where I am today if it was not for the people that worked for me and supported me,” said Androliakos. You can’t build anything on your own, you need employees to also buy into your company to succeed.”

He also acknowledged his wife Angelique and mentioned that strong business are supported by solid wives that understand the stress and long hours involved in running a company.

I wasn’t surprised by Androliakos’ modesty at all.

Quite typical of a butcher man who is heavily built yet soft spoken.

Quite typical again, of a businessman who has achieved so much and remains very humble.

Androliakos derives this humble disposition from his faith.

“I try to walk by I what I believe in,” he said.

“My purpose in life is to use my skills to make

run together with his siblings Cal, Mark, Wessel and their spouses, throughout the 90’s, solely growing maize, sunflower and breeding cattle.

The idea of a butchery was prompted by the infamous drought of 1991.

Cattle ranching ceased to be profitable.

Therefore, as a way of adding value to stock, Androliakos and family renovated a disused building at Marcedale farm and opened a small butchery.

Little did he know that this survival measure was in fact a launchpad to a successful career as a beef supplier.

“When I look back at the time when we opened a small butchery, I see that it was God preparing us for us what would come in the future. We had to move away from the farm when the land reform program came and that was the stepping stone for us to come to

Corporate social responsibilty : Chris donates a bull towards ZRP Mat South Cattle Branding Model Vilage launch in Dombodema, 2014.

Bulawayo and become Heads and Hooves.”

As manager at Heads and Hooves, Androliakos has been a client of NCS Labour Relations Consultants for 11 years. His labour disputes have been purely circumstantial, inextricably tied to the country’s economic meltdown.

Gladys Mpemba, principal consultant at NCS said that in her own view, Androliakos’ compliance with labour laws compliments his experience in the trade and that adds up to his success.

“Chris Androliakos is a good employer,” Gladys said. “ He always goes an extra-mile to give an employee what they deserve, whether they are leaving his company on a good note or otherwise.”

Chris in the press: A local daily covers the sucess of Heads and Hooves at the 2016 Bulawayo Agricultural Show after purchasing 28 steers.

Chris pictured with his family surrounded by trophies and shields won by their Marcerdale Devondale Ranch in 2014.

Page 11. LABOUR FORUM. July 2017

FAQ S

Welcome to the Frequently Asked Questions section or FAQ! In this section we hope to post brief Articles describing many of the issues that most frequently affect NCS clients. We will also include full manuals and information on trainings that we can provide on an as-needed basis.We have done our best to provide detailed information that you will likely need to use in your endeavour to achieve good relations with employees in your organisation. However, contact us for assistance in implementing the recommendations in this section. We will continue to develop this section as new questions and/or solutions arise. You may want to bookmark this page and check back whenever you run into problems.

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f an employee does not disclose certain information a t interview and the employer gets to know about it later, can the contract be terminated?

The Courts hold that it is permissible to seek discharge of the employee on the basis of non– disclosure. This would be considered an act inconsistent with an implied condition of his contract of employment. There is need for properly recorded selection procedures from the time of a written application to the interview up to the time of engagement so that if something material is not disclosed, it can be proved.

Also, fraud committed in order to secure employment may render the employment contract invalid in which case an employee who has been dismissed will have no basis for any complaint against the employer.The effect of a misrepresentation, whether innocent or fraudulent, may be to induce in the mind of the innocent party a mistake of so fundamental a nature that his apparent assent to the contract is in truth not assent at all. In such a case, for lack of assent there is no agreement and therefore no contract Refer: Mirirai Zata and Others vs. Harare City Council SC 74/99

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hat does the law say about serving out notice periods?

Employers usually face an uphill battle when it comes to employees who abscond or refuse to serve their notice periods.Employees are obliged to work their notice period unless the employer exempts them from this obligation.

If the employer does not require an employee to work during his notice period but the employee makes himself available, the employer is required to pay the employee his notice pay.

If an employee refuses to work his notice period, he is in breach of his employment contract. An employer can sue an employee who reneges on his obligations for damages or losses incurred during the notice period and pending the appointment of a suitable candidate.For example, if an employer’s switch board operator leaves without serving her notice period, forcing the employer to contract a temporary replacement, then there is no reason why the employer can not sue her for the cost of contracting a temporary replacement.

In addition, an employer does not have to pay the employee any notice pay if he does not serve his notice period.In practice very few employers actually take legal action against employees in these circumstances.

This is because it is often difficult to compute the damages incurred.Furthermore, there is a perception that an employer who takes such action is throwing good money after bad and that even if the employer obtains a judgement in his favour, the former employee may not be in a position to pay damages.

Accordingly, employers must weigh up the costs of litigation against the harm caused in deciding whether or not to pursue the employee for damages.

Refer: First National Bank of South Africa vs.

Budree 1996 (1) S.A 971 (N).

C

an a fixed term contract be terminated on notice before its expiry?

At the close of a fixed term contract, no notice is required. Where an employer wishes to terminate the fixed term contract before its expiry, the employer may give notice in accordance to the notice periods stipulated in Section 12 (4) of the Labour Act. What is paid is an

amount equivalent to the notice period and not for the remaining period of the contract.

Where contracts have been rolled over, the employer does not give greater notice periods against the total period of contractual employment because each contract states the appropriate notice period for that contract. The notice periods are not cumulative Refer: Lever Brothers vs. Marapuza & Others SC 23/1997.

Peterhouse School vs. Judah Jameson Chinyemba Labour Court Judgement No. LC/H/222/2003 Case No. LC/H/415/2001.

W

hat are the legal requirements on transfer of a business?

Section 16 of the Labour Act is very clear that unless employees’ services are lawfully terminated when a business is alienated or transferred in any way, the services of the employees shall be deemed transferred to the new owner.

If negotiations about terminating the services of the employees have not been finalized at the time the sale agreement is finalized, then the employees shall be automatically transferred to the new owner.

On transfer to a new owner, the employees should not be given a new contract of employment but rather written communication about the transfer and any additional benefits or variations agreed to by the employer and the affected employees.

The unfinished business in a transfer in relation to the employees is transferred along with the business to the new owner.

Refer: Agnes Nkomo & 8 Others vs. Rubber & Allied and Retrenchment Committee SC 14/2002.

You can ask NCS Labour Consultants a question using the contact form on the home page of our website.

Alternatively, head to our Facebook / Twitter account and send us a message directly. Better yet, you can ask your question using the form on this newsletter We will treat all issues and your identity with due confidence.

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July 2017. LABOUR FORUM. Page 12

THE PULSE

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