The Sunday Mail
Legal Matters with Arthur Marara
(Unpacking SI 15 of 2006 – Continued)
This will be the final instalment on Statutory Instrument (SI) 15 of 2006. It will require a book or me to exhaust the entire SI as there are a number of issues that arise from it.
I will cover the remaining parts in the near future, as I want to move on to cover other key aspects of the law in other branches.
I will be running a free masterclass on how to conduct a disciplinary hearing under SI 15 of 2006.
This week, I want to deal with an act of misconduct that is contained in Section 4(f) of SI 15 of 2006, which provides for an act of misconduct called “gross incompetency or inefficiency in the performance of his or her work…”
The employee has a common law duty to be reasonably efficient and competent at the commencement of the contract and throughout its duration.
In other words, not to be negligent.
The worker is presumed to have given an implied warranty that s/he has the necessary qualifications or experience required in a job — Total Zimbabwe (Pvt) Ltd v Moyana S-127-04.
The common law duty is codified in S4 (f) (g) (h) of SI 15 of 2006.
The two main components of the duty of competence were summarised in Quest Motor Corporation (Pvt) Ltd v Nyamakura 2000 (2) ZLR 84 (H).
That the worker undertakes that s/he is suited for the job and has the necessary qualifications and experience required in the job — see S4 (h) SI 16 of 2005.
There is often abuse of the words “grossly” incompetent and inefficiency by most employers describing their employees.
It is also common to encounter these words being thrown all over by people who sometimes even are speaking with confidence. The question is what do these terms actually mean?
Section 4(f) of SI 15 of 2006 provides for “gross incompetency or inefficiency in the performance of his or her work…”
The use of the word “or” means either of the two but the requirement is that it be gross of either incompetence or inefficiency.
What this means is that for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient.
A distinction at law between the two is found in the fact that it can be either of the two.
The literal meanings of the two words can be of assistance in establishing a distinction between them.
Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done.”
Inefficient is defined as “not doing a job well and not making the best use of time, money, energy, etc” (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760 and 766).
An incompetent employee lacks the knowledge of what to do and how to do it, while an inefficient employee knows what to do and how to do it, but simply fails to exact himself in doing what he knows.
There is, therefore, a difference between the two.
Thus, an inefficient employee may be competent in so far as having the necessary skill or ability to do his work but does not do it efficiently due to dereliction of duty, laziness, carelessness, negligence, lack of zeal, lack of personal drive, not being thorough, procrastination of performance of duties or some other personal traits which hinders him from doing his job efficiently and make use of resources optimally. (Frayser Muyaka v Bak Logistics (Private) Limited SC39/2017).
Incompetence, in simple terms, therefore, refers to lack of a skill or ability to perform a job.
In ZBC v Jones S-63-82 a white news reader was accused of incompetence for mispronouncing the names of African leaders despite training.
Inefficiency is whereby the worker has the ability to do the job but does not perform to the usual or normal standard expected of her/him.
Negligence refers to a situation whereby the employee is aware of her/his duties and is capable of performing them but for no good reason s/he does not or does them in an incorrect way because of lack of application or concentration.
In Zimbabwe Mining and Smelting Co. Ltd v Mafuku S-246-92, the court upheld the dismissal of a human resources manager who was unable to perform the basic duties of personnel management, despite being given a number of chances.
In Gemsbock Construction Ltd v Prowse 1950 (1) PH A 52 (SR), it was held that the worker is bound by any representations made concerning her competency including information in testimonials and references — Also PTC v Mhaka HH-127-03. Such misrepresentation or falsification of qualifications may also amount to fraud.
In Makina v S 1983 (1) ZLR 202, the court upheld the conviction for fraud of an employee who had used another person’s qualification to get a job. This duty means that once on the job, the worker will exercise reasonable skill, diligence and care and perform his/her duties competently.
In other words s/he must not be guilty of negligence, incompetence, inefficiency or wilful destruction of the employer’s property — see S4 (c) (f) (g) of SI 15 of 2006.
In Matarimanja v Gauntlet Security (Pvt) Ltd LC/H/32/05, a guard left duty before it was time and the premises were broken into and some goods stolen. The court upheld his dismissal for negligence.
The general principles regarding incompetence were set out in Kwangwari v Commercial Bank of Zimbabwe HH 79-03 as that
the employee must be timeously informed of his/her deficiencies; be told how to rectify it; and be given a reasonable opportunity to improve.
The principles had been considered earlier in the case of Quest Motor Corporation (Pvt) Ltd v Nyamukura and the position was held that the employer has a duty to provide all necessary assistance to an employee before dismissal for incompetence.
Gross incompetence and inefficiency are considered serious acts of misconduct under SI 15 of 2006 and warrant termination of the contract of employment after due process if the employer takes the view that the conduct of the employee goes to the root of the contract of employment.
It is trite that penalty is in the discretion of the employer.
See Malimanjani v CABS 2007 (2) ZLR 77 (S), Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S).
The employers’ discretion can only be challenged where its exercise was grossly unreasonable, capricious or mala fide. See the case of ZFC v Geza 1998 (1) ZLR 137 (S).
The Supreme Court in Mashonaland Turf Club v Mutangadura SC 5/12 held that: “In the exercise of their powers in terms of S12B (4) of the Labour Act, the Labour Court and arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”
We once dealt with the issue of termination in the past articles. You can get all of these from The Sunday Mail website. I trust this series has given you some enlightenment.
Take time as well to re-read the instrument.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation.
No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial and family law, and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
