HomeOpinion & AnalysisColumnistsLabour Perspectives: Can a suspended employee take up a new job?

Labour Perspectives: Can a suspended employee take up a new job?

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Most employment codes allow employees to be placed on suspension with or without pay in cases of serious misconduct when the employer needs to conduct investigations before a disciplinary hearing.

The employer may feel that the suspected employee will interfere with witnesses or information and therefore it will be prudent to have the employee off-site while the matter is being investigated.

This is not a punitive measure; neither is it an unfair labour practice, as long as the code allows the employer to suspend.

Suspension means the obligation to work is temporarily suspended, but not terminated.

According to Dr J Grogan in Workplace Law, an employee, while lawfully suspended, remains under the authority of the employer.

The employee may therefore be required to report to the workplace at specific times during the period of suspension.

Suspended employees are therefore not permitted to engage in alternative employment without their employer’s consent, otherwise such action could be deemed to constitute a resignation.

The Supreme Court case of TelOne (Private) Limited vs Zulu (Judgment No SC 110/04) illustrates this principle more vigorously.

A brief background to the case could assist us to appreciate the views of the court on this important aspect.

Zulu was an employee of TelOne at the time in question. The company suspended him on allegations of misconduct on February 21 1996.

The period of suspension was without pay or any other benefits and the onus was placed on Zulu to meet his financial obligations, including medical aid and pension contributions. On September 1 1997, Zulu found a job at Zimnat and was employed there for a period of approximately four-and-a-half months.

He left and joined Buchwa Iron Mining Company. The case spilled into the courts and was dealt with by the Labour Relations Tribunal (now Labour Court), and later by the Supreme Court.

TelOne argued that Zulu repudiated his contract of employment with the company when he took up employment with Zimnat on September 1 1997.

The Supreme Court agreed with this view.

Justice Chidyausiku who presided over the matter attacked the Tribunal (Labour Court) for failing to appreciate the distinction between an employee who is on suspension and an employee who has been dismissed, and the different legal obligations pertaining to each.

He pointed out that an employee who is on suspension is under a legal obligation to avail himself for duty to his employer during the period of suspension and that if the employee takes up employment during that period, he repudiates his contract of employment.

Justice Chidyausiku quoted an earlier Supreme Court case of Zimbabwe Sun Hotels (Pvt) Ltd vs Lawn (1988) in which Justice Gubbay (as he then was) said: “The effect of informing an employee that he is suspended was considered by Feetham J in Gladstone v Thornton’s Garage, supra at 119.

This is what was said: “When an employee is ‘suspended’, it appears to me that apart from any express instructions he must hold himself available to perform his duties if called upon; though for the time being he is debarred from doing his work.

It appears to me that that is distinct from dismissal. The use of the term ‘suspended’ is an indication that, while he is not to perform his duties, he must still remain bound to his employer under his contract of service.”

It is clear from the above authority that an employee who is placed under suspension should hold himself available to perform his duties when called upon to do so.

On the other hand, the court noted that an employee who has been dismissed, whether lawfully or unlawfully, is under a different legal obligation from an employee who has been suspended.

A dismissed employee is required to alleviate his damages as quickly as possible and failure to do so might cause him to be denied damages.

To illustrate this point, Justice Chidyausiku cited another case of Ambali vs Bata Shoe Company Ltd which was handled by the Supreme Court in 1999.

In this regard, Justice McNally (as he then was) had this to say: “There are also those, and Ambali is one of them, who seem to believe that they must on no account look for alternative employment; that so long as their case is pending they must preserve their unemployed status; that if they look for and find a job in the meanwhile they will destroy their claim.

It cannot be emphasised too strongly that this is wrong if an employee is wrongfully dismissed, his duty to mitigate his loss arises immediately. If he is offered a good job the day after he is dismissed he must take it or forfeit any claim for damages.”

In its ruling, the Supreme Court decided that by taking up employment with Zimnat on September 1 1997, Zulu repudiated his contract of employment with TelOne on that day.

The act of accepting employment with Zimnat is what terminated Zulu’s previous employment.

Zulu was therefore only entitled to arrears of salary and benefits from February 21 1996, the date of his suspension up to 1 September, 1997, the date he took up employment with Zimnat.

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