Judgment No. SC 26/18 8
Civil Appeal No. SC 164/16
“I agree with the arbitrator that failure to appraise employees of putting such a system in
place and go on and base the salaries on the system is unfair and unjust and not in keeping
with the Labour Act. Section 5 of the Labour Act prohibits discrimination on any other
matter related to employment and in any matter relating to wages and benefits. The
employer has an obligation to advise the employee in writing of the remuneration and how
it shall be arrived at.”
It is evident from the remarks above that the court a quo upheld the Arbitrator’s
decision that declared the bonus illegal on the premise that the respondents were not informed
about the scheme prior to it being implemented. It is my view that the finding by the court a quo
cannot be assailed because employees have a right to be informed about decisions pertaining to
their employment conditions of service even if the decisions are made in the exercise of an
employer’s discretion. The appellant as the employer had a duty to notify all employees about its
decision to start a performance-based bonus scheme before implementing it.
However, that said, the court a quo erred in upholding the order awarding the
respondents back-pay. As correctly argued by the appellant, once the court a quo found that the
performance-based bonus scheme was illegal, it should not have upheld an order awarding backpay based on an illegal scheme. A finding that an arrangement is turpious is incompatible with an
order enforcing the same as was done in casu by requiring that the employees be paid in terms of
an allegedly unlawful arrangement. This is what is referred to as the ex turpi causa principle. The
order of the arbitrator and that of the court a quo upholding the former, contravenes this principle,
and as a consequence, the principle is offended by an order enforcing what has been held to be
illegal. In addition a court cannot lend itself to an illegality. See Dube v Khumalo 1986(2) ZLR
103; Foroma v Min of Public Construction & Anor 1997(1) ZLR 447(H).