'Tin Tin was unlawfully dismissed over adult video'

Former ZiFM Breakfast Show hostess Tinopona Katsande was unlawfully dismissed from employment for misconduct allegedly arising from her leaked p*rnographic video, an arbitrator has ruled.

Katsande who is known to her legion of fans as "Tin Tin" was fired last year over her leaked adult video .

Through her lawyer Nunudzai Mitchel Masunda of Scanlen and Holderness, Katsande challenged ZiFM's decision to fire her over a p*rnographic video that was shot before her employment.

Ms Masunda argued that Katsande was unfairly dismissed because at law the employer cannot terminate her on notice, which was not expressly provided for in the contract itself.

Arbitrator and labour law expert Mr Rodgers Matsikidze accepted arguments by Katsande's lawyer and ruled in her favour. He ordered the parties' to negotiate the damages and back pays if reinstatement was incompatible.

"The claimant is and hereby found to have been unlawfully and unfairly dismissed," ruled Mr Matsikidze.

"The parties are and hereby ordered to negotiate the back pays and damages due within 14 days of award, failure of which either party can apply for quantification."

Mr Matsikidze ruled that in the absence of a clause in the employment contract that allow termination on notice by both parties, "one cannot terminate as such . . . on that basis the termination is unlawful and unfair."

In his judgment, Mr Matsikidze did not specify the period of back pays as he felt there were factors the parties should consider in negotiating their damages and back pays.

This means in the event of disagreement the parties will again appear before the arbitrator for him to deal with the issue of quantum of damages.

Issues raised for determination in the dispute were whether or not Katsande was unfairly dismissed, whether or not the termination of the contract was in accordance with the terms of contract and the arbitrator to decide on the appropriate remedy to the dispute.

In his ruling, Mr Matsikidze noted that Katsande's case was unique in that the leaked p*rnographic material was from a period prior to employment. As such the clause in the contract of employment did not apply with retrospectivity. He said it was unavoidable that the leaked p*rnographic material made headlines and as such an employer would be worried by such a situation.

"It is the claimant who created the unenviable position of creating that video, for whatever reason, she did create it, I do not know but the bottom line is it puts the employer in a difficult position," said Mr Matsikidze.

Although Mr Matsikidze agrees that Katsande's conduct was morally wrong, he said the law seemed to have a lacuna on issues that later surface in one's employment.

ZiFM lawyer Mr Tichaona Muhonde told the tribunal that he advised his clients that they had adopted a wrong procedure and as such the dismissal was unlawful.

After ZiFM was advised by its lawyer that they could not fire her, Katsande was then reinstated without loss of any benefits and she was given three months notice until December 14, 2013.

Before the pictures of the adult video were published by H-Metro, the radio hostess raised alarm and apologised to Zimbabwe. The pictures published by H-Metro showed Katsande in different intimate and compromising positions with her unidentified partner.