WHAT DO YOU DO IF AN EMPLOYEE IS DISMISSED AND THEN THEY ARE CLEARED BY THE COURTS ON A SIMILAR OFFENSE? THE IMPLICATIONS FOR EMPLOYEE CONTRACTS
It is important to note that the employer has the right to discipline an employee who has committed an act of misconduct. The decision of whether or not to dismiss the employee is in the discretion of the employer. An employee will be dismissed from employment if the employer considers the act of misconduct to be of a serious nature going to the root of the employment contract.
Acquittal is strictly based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant’s guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty((Taurai Musakaruka, People’s Issues, Handling Misconduct at the workplace, https://www.herald.co.zw/handling-criminal-misconduct/ ))
. The position at law as settled in this jurisdiction is that the standard of proof in
disciplinary proceedings is on a balance of probabilities, even if the act of misconduct is of a criminal nature((Zesa v Maposa 1992 (2) ZLR 452 (S) )).
In the case of ZESA v Dera((1998 (1) ZLR 500 (S),)). the respondent was an employee of the appellant. He was charged with dishonesty, in contravention of the appellant’s code of conduct.
The committee found him guilty as charged and imposed a penalty of dismissal. An appeals committee dismissed the respondent’s appeal. The then Labour Relations Tribunal overturned the appeals committee’s decision on appeal on the grounds that the appellant had to prove the respondent’s guilt beyond reasonable doubt, not merely on a balance of probabilities((Ibid)).
In allowing the appeal against the Labour Relations Tribunal’s decision, the Supreme Court rejected the position taken by the Labour Relations Tribunal that in disciplinary proceedings, the accused’s guilt must be proven beyond reasonable doubt. At 503E-504D, the Supreme Court remarked that;
“It is a startling, and in my view, an entirely novel proposition, that in a civil case the
standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt
is required, is that the loss of a criminal case can result in death by hanging, incarceration,
or at the least, the branding of a person as a criminal or convict.
One needs to then understand the nexus between a criminal trial and civil trial which invokes the dismissal of an employee. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual((Hoffmann & Zeffertt SA Law of Evidence 4 ed at p 528)). Thus a person convicted of a crime is marked as one whose conduct stands condemned by society. A civil case, on the other hand, is merely a dispute between individuals((“The Guide to Administrative and Local Government Law in Zimbabwe”)).
The loss of such a
case, however ruinous in terms of money or property, loss of employment or loss of face,
is not a judgment by society as a whole, but simply a resolution of the dispute between the
parties. Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief((Reiterated in the case of Zimbabwe Sun Hotels (pvt) ltd v Lawn 1988 (1) ZLR 143(S))).
In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft. So in a criminal case one is primarily concerned with doing justice to the accused.In a civil
case one is concerned to do justice to each party. Each party has a right to justice, and so
the test for that justice has to balance their competing claims.
This explains the “balance of probability” test. In ZESA v Dera, the employer has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law now seeks to strike a balance between these competing interests.
“There are no exceptions to the rule that all issues in a civil action are decided upon a
preponderance of probabilities.” A dismissal occurs when the prosecutor decides to dismiss the criminal charge against the defendant and not proceed further with prosecution of the case.
If a defendant is acquitted of a crime, of course, it does not mean that the defendant is in fact innocent. The defendant might in fact be innocent, but it is also possible that the prosecution simply could not prove the guilt of the defendant beyond a reasonable doubt, even though the defendant did, in fact, commit the crime.
Prosecutors sometimes charge defendants with more than one crime in order to increase the likelihood of getting a guilty verdict. If a defendant has been charged with committing more than one crime, and a verdict of not guilty is delivered with respect to each, the defendant has been completely acquitted. If the verdict is not guilty for one or more of the crimes charged, but guilty for one or more of the other offenses, the verdict is only a partial acquittal.
But the essential thing about an acquittal is that it means the defendant is cleared and cannot be prosecuted again for the crime. The defendant is not guilty of the particular crime charged, and the prosecution cannot change that with future actions.
The reason for this is the double jeopardy clause of the Fifth Amendment of the U.S. Constitution. It states that a criminal defendant cannot be tried twice for the same offense. If a judge or jury has acquitted a defendant of an offense, they cannot be tried by the same court for that particular offense at a later date.
In Astra industries Limited v Peter Chamburuka((SC12/2012)) wherein the Court held that;
“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this Court((Ibid)). In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E-G:
“The general principle governing the determination of the incidence of the onus is the one stated in the Corpus luris simper necessitas probandiincumbitilli qui agit. In other words, he who seeks a remedy must prove the grounds therefore.”
In issues relating to criminal misconduct at the workplace, on discovering that an employee has been convicted of criminal conduct, many employers assume that they have an automatic justification for dismissal, with the most common rationale being that they can treat the relationship of trust with the employee as having broken down((Taurai Musakaruka, People’s Issues, Handling Misconduct at the workplace, https://www.herald.co.zw/handling-criminal-misconduct/)). However, in practice there is no legal stance for such a notion.
In clear recognition of the idea that, in order to be fair, an employer must treat a potential criminal misconduct dismissal in the same way as any other dismissal, the Tribunal’s decision that the dismissal in the Moore case was unfair hinged, to a significant extent, on the failure of the employer to consider alternative sanctions in light of the employee’s long-standing unblemished disciplinary record.
Clearly, in some cases, all the unblemished service in the world wouldn’t be enough to justify an employee remaining in their role. But as is so often the case in employment law, protection comes from being able to demonstrate that it was a factor that was at least considered. Where an employee has been arrested for, or has been charged or convicted with a criminal offence, an important issue is whether the alleged offence/conviction directly affects their work((Ibid)). If it does, employers need to consider whether they genuinely and reasonably believed that the individual was in fact guilty of the offence in question before deciding whether or not to dismiss((Ibid)).
Importantly, a criminal charge or conviction does not, in itself, usually justify unfair dismissal – or even disciplinary action itself. It must affect the employee’s ability to perform their work(( Mugwebi v Seed co ltd & anor 2000(1)ZLR 93(S) – suspension was held to be a nullity where the employee was suspended without appropriate investigation.)).
Whether dismissal because of a criminal conviction will be regarded as justified depends on the nature of the offence and the job with which the individual is tasked with doing((Taurai Musakaruka, People’s Issues, Handling Misconduct at the workplace, https://www.herald.co.zw/handling-criminal-misconduct/)). For example, if the individual works in a job involving contact with children and they have been charged with, or convicted of a sexual offence in relation to children, then dismissal would most likely be fair and justified((Ibid)).
When an employee has been dismissed for misconduct of a criminal nature, the dismissal will not necessarily be harsh, unjust or unreasonable simply because the charges against the former employee were not proven in a hearing((Ibid)). This is because in termination of employment proceedings the hearing authority is only required to determine whether on the balance of probabilities that the conduct in question did in fact occur((Zesa v Maposa 1992 (2) ZLR 452 (S) )).
While the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules including these concepts((Zesa v Maposa 1992 (2) ZLR 452 (S) )). Civil rules evidence have been adopted because workplace investigation findings usually form the basis of subsequent employer decisions concerning the employee(s) under investigation such as terminating his or her employment contract or issuing a reprimand or warning((Zesa v Maposa 1992 (2) ZLR 452 (S) )).
Burden of proof refers to the threshold of evidence which is required to prove a case in legal proceedings((Zesa v Maposa 1992 (2) ZLR 452 (S) )). The burden of proof in criminal proceedings and civil proceedings is different. The standard of proof required in disciplinary civil cases is called proof on a balance of probabilities. Balance of probabilities means that on the basis of evidence submitted, it is more likely than not that a case has been proved((Zesa v Maposa 1992 (2) ZLR 452 (S) )). This does not necessarily mean proof beyond reasonable doubt; rather it is a matter of probabilities. The scales of justice in this case maybe tilted in favour of one party to the proceedings by probabilities((Zesa v Maposa 1992 (2) ZLR 452 (S) )).
This explains a situation where an employee charged for a criminal offence under a certain set of facts can be acquitted in criminal proceedings say for theft but would be found guilty of a competent charge in subsequent or parallel disciplinary proceedings before the employer because the employer can easily discharge its onus by proving an act of misconduct on a balance of probabilities((Zesa v Maposa 1992 (2) ZLR 452 (S) )).That does not however mean that a party proving a case in civil proceedings can easily get away without producing sufficient evidence simply because the burden of proof is on a balance of probabilities((Zesa v Maposa 1992 (2) ZLR 452 (S) )). Our courts have stated that the onus to prove lies on the party alleging or seeking a remedy((Zesa v Maposa 1992 (2) ZLR 452 (S) )).
The effect of a criminal misconduct, either on conviction of acquittal depends on the relationship of trust that exists between the employer and employee to the extent whether the effect of the mistrust goes to the root of the contract. In Standard Chartered Bank Zimbabwe Limited v Michael Chapuka((2005 (1) ZLR 52 (S) at 57 C)) it is stated:
“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter.”
In Toyota Zimbabwe v Posi((2008 (1) ZLR 173 (S))) at 179F the Court held that the Labour Act [Cap. 28:08] contains no provision which either expressly or by necessary implication purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship. Once it was accepted that the misconduct the appellant was found guilty of went to the root of the contract of employment, dismissal was the appropriate penalty.
Mr Zhuwarara sought to argue that there are different levels of trust in an employment relationship. The argument was that a person employed in a substantive position is under a higher degree of trust than one employed in an acting position. The contention was that since the appellant was in an acting position of a Human Resources Manager he was not subject to the same degree of trust by his employer as he would have been if he was a substantive Human Resources Manager.
Mr Zhuwarara overlooked the fact that the trust the employer reposes in an employee relates to the expectation that the employee will diligently and honestly perform the duties of the office he or she occupies whether in a substantive or acting capacity. The duties of an office are no less important in the business of an employer because they are performed by an employee in an acting capacity.
From the above discussion it is clear that a criminal matter has to be proved beyond a reasonable doubt whilst a charge in disciplinary proceedings have to be proved on a balance of probabilities. If an employee is dismissed the fact that they are cleared by the courts is neither here nor there as the onus of proof is different. The employer should only be satisfied that the decision to dismiss the employee is procedurally and substantively fair. An employer cannot be forced to reinstate an employee if trust has been lost or the act of misconduct borders on dishonest. One has to understand the context within which the employee has been cleared of the charges. If the employee has been cleared by a criminal court then the dismissal in terms of the Labour laws stands unless the decision to dismiss by the employer is set aside by the Supreme court of Zimbabwe.
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