BY JAMES MUTASA

An independent arbitrator Joseph Masango recently ordered that Afrochine Smelting Private Limited should reinstate its former employee Marble Masunda to her position with full salary and benefits, adding that if reinstatement is no longer possible, the parties were to agree on payment of damages in lieu of reinstatement within 30 days.

Masunda who was represented by the Deputy General Secretary of National Union of Metal and Allied Industries in Zimbabwe (NUMAIZ), James Nesvinga; had claimed unfair termination of her contract of employment, referred the matter for compulsory arbitration after conciliation which was held before Caith Kurehwa the designated Agent for the Ferro Alloy Industry, failed to yield a fruitful result.

Nesvinga argued that Masunda was employed by Afrochine Smelting as a cleaner in October 2018, under a fixed term contract and she continued in employment until January 2026 when her services were terminated. But, Statutory instrument 88 of 2017, states that an employee who is engaged on affixed term contract for duration of three years’ continuous service shall be deemed to be on a contract without limit of time upon completion of the prescribed period of three years. The cited S. I. 88 of 2017 came into operation in November 2019.

‘By allowing her contract to continue us it did, Respondent thereby turned her contract of employment to be a contract without limit of time and this is in terms 12(3) of the Act. In that regard termination of the employment contract was done without following the proper procedures. The industry’s collective bargaining agreement provides a Disciplinary Code which regulates termination of employment,’ argued Nesvinga who went on to claim for either reinstatement with full benefits or a separation package.

Nevertheless, Gilbert Kwaramba, the Human Recourse Manager of Afrochine opposed the claim of unfair dismissal, quarrelling that Masunda was employed by the Respondent as a Cleaner at the Chinese Canteen located at the Respondents premises at Plot 18 Selous Farm.

During the course of her employment, she was assigned cleaning duties at the Chinese Canteen where food supplies were stored. As such she had access to the storeroom where items such as rice and cooking oil were kept. Respondent discovered that various food items including rice and cooking oil had been unlawfully removed from the storeroom without authorization and internal investigation implicated Masunda who had access to the Storeroom.

“Trust relationship between the parties had irretrievably broken down. In cases involving dishonesty dismissal is appropriate and justified. Evidence gathered during the investigation showed that goods were removed from the storeroom and transferred outside the premises.

Accordingly, her contract of employment was terminated following a process in which she was found guilty in the theft of property. Thus the claim of unfair dismissal should be dismissed with costs, Kwaramba told the Arbitrator.

In his award Masango pointed out that the fact that the Code is included in the Statutory Instrument which binds both parties means that Respondent required to follow its provisions without failure.

“For the foregoing reasons, I find that the dismissal was unfair. Respondent must reinstate Applicant. Should reinstatement no longer possible, the parties should agree on an appropriate amount for damages. Should they fail to reach an agreement, either party may approach the Tribunal for quantification of the damages.”

Masango went on, “there is no basis for Claimant to claim a payment which applies in retrenchment situations, as it is not applicable, given the circumstances surrounding the termination as outlined by the parties.”