FIRING HUMAN RESOURCES BOSS
By Dickson Jere
The Director of Human Resources and Administration was fired. He was accused of, among other reasons, giving himself leave days which he was not entitled and gross misconduct. The company summarily dismissed him without subjecting him to a disciplinary hearing because – it was argued – there was no such procedure in its Code for disciplining top executives.
The fired Director sued in the High Court arguing that his dismissal was unlawful and wrongful as he was not given an opportunity to be heard contrary to the provisions of the Employment Code Act.
Simply, he denied the charges of gross misconduct, dishonest and abuse of office over his leave days. He explained that the leave days were in fact approved by the CEO.
But the High Court threw out his case saying he was rightly fired even though the procedures were not followed. The High Court Judge found that the Director was rightly fired because the offence of abuse of office and misconduct were punishable by instant dismissal at his institution.
Dissatisfied with the outcome, he launched an appeal before the Court of Appeal where three Judges analyzed his case and found that the High Court Judge badly erred in the manner he handled the case.
“In the absence of a disciplinary committee, the learned Judge constituted himself as one when it was not his role to do so,” the Court of Appeal observed.
“The findings that the appellant abused his office and was dishonest were findings that ought to have been made by a disciplinary tribunal and not the court.”
Having found that the Director was wrongly and unlawfully fired, the Court of Appeal felt that it would be unwise to reinstate him in the position because it may create a hostile atmosphere.
“…we hold that the appellant is entitled to damages for wrongful and unlawful termination,” the three-man panel ruled.
He was then awarded twenty-four (24) months’ salary as damages for wrongful dismissal and twelve (12) months as compensation for unlawful dismissal.
“We also award the appellant interest on these monetary awards…” the Court ordered.
Case citation – Maxwell Zeffinati Phiri v Rural Electrification Authority (Appeal No. 108/2021) judgement delivered last week on 6th April 2023.
This is an important case for Human Resources practitioners as well lawyers doing employment law. The gist of this judgment is that employees must be subjected to a disciplinary process before being fired.
Note – this is not legal opinion on the subject matter but a brief summary on the case.