SANDURA
JA:
This
is an appeal against a judgment of the Labour Court which dismissed
an appeal by the appellant (“Murawo”) against the termination of
his contract of employment by the respondent (“the GMB”).
The
background facts are as follows.
Murawo
was employed by the GMB as a safety, health and environment officer.
Between 4 March and 7 March 2004 the G.M.B. held a strategic planning
workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those
eligible to attend the workshop were divisional heads and
departmental heads. Officers below departmental heads could also
attend the workshop if invited.
Murawo
was neither a divisional head nor a departmental head.
On
5 March 2004 Murawo attended the workshop and presented his paper.
However, it later turned out that Murawo's attendance at the
workshop had not been authorised by the G.M.B. directorate. He was,
therefore, asked to leave the workshop.
On
6 March 2004 Murawo left the workshop and checked out of the hotel,
but remained within the hotel premises because he had a cheque to
give to Mrs Zemura (“Zemura”), the G.M.B.'s public relations
manager, who was participating in the workshop.
However,
Murawo's continued presence at the hotel offended the G.M.B.
directorate.
Consequently,
the directorate called upon Mhonde, Murawo's head of department, to
ensure that Murawo left the hotel premises. Subsequently, Murawo left
Troutbeck Inn after giving Zemura the cheque that he was supposed to
give her.
Thereafter,
on 8 March 2004, Murawo was suspended without pay and benefits on the
ground that he had committed two acts of misconduct in terms of the
G.M.B. Code of Conduct (“the Code”). In relevant part, the letter
of suspension written by Mhonde reads as follows:
“On
Wednesday the 3rd of March 2004 you communicated to me that the
Marketing Director had invited you to the Strategic Planning
Workshop. This, however, turned out to be untrue. On Saturday morning
at about 08.30am on the 6th March 2004, I told you to leave the
Troutbeck Inn immediately as you were not invited to the meeting.
However, up to lunchtime you were still at the premises and now
purporting to have been tasked by the A/CEO to discuss issues related
to workers with the Union representatives, Mr Munodawafa and Mr
Mhunza, and present them in the Seminar. This also turned out to be
untrue. Given the scenario explained above, Management has decided
that you be suspended without pay and benefits with immediate effect,
and you are being charged in line with the G.M.B. Code of Conduct as
follows:
1.
Category I section 1: 'Insubordination – wilful and unreasonable
disobedience of a lawful order from a superior'.
2.
Category I section 5: '… activities inconsistent with the express
or implied condition of his contract of employment.' …
In
keeping with the provisions of our Code of Conduct you are required
to reply in writing answering to the above charges… Your reply must
of necessity cover the following aspects:
(a)
Admit or deny the charges.
(b)
Facts to be taken into account if you admit the charges.
(c)
If you deny the charges, offer an explanation of the basis of your
defence…”.
On
9 March 2004 Murawo replied to the letter of suspension. His letter,
in relevant part, reads as follows:
“I
confirm that I did not receive a written invitation to present a
paper at the Troutbeck Retreat. I, however, thought in good faith
that since this was an important strategic planning session of the
organisation our department could take advantage of the gathering of
eminent people in the organisation to market the Health and Safety
portfolio, which was launched some eight months ago. I prepared a
document for presentation. Initially, the presentation was short and
just a small section of the presentation of the Engineering
Department. I, however, developed a longer presentation which I
thought could be incorporated in the Engineering Report. I thought I
was contributing to the organisation's cause. I did not know that
in doing so I was contravening any section of the G.M.B. Code of
Conduct. Therefore if at all I contravened category I section 1 and 5
of the Code, the contravention was not wilful.
When
I was excused from the activities of the 6th of March 2004, I checked
out of the hotel. I, however, realised that I had forgotten to give a
cheque I had been asked to bring to Mrs Zemura. As the morning
session had already started, I thought it was not wise to disturb the
session. I waited for an opportune moment to give the cheque to Mrs
Zemura. That moment presented itself at lunchtime and I duly handed
over the cheque to Mrs Zemura. At the same time some apples and
potatoes I had ordered away from the hotel after checking out were
only delivered to me around the same time. I then left for Harare …”.
On
18 March 2004 Murawo appeared before a disciplinary hearing committee
which found him guilty on both counts, and recommended his dismissal.
He was subsequently dismissed with effect from the date of his
suspension, i.e. 8 March 2004.
Thereafter,
on 3 May 2004 Murawo appealed to the acting chief executive officer
(“Muvuti”) against the dismissal. In that appeal he alleged that
he had attended the workshop because Mhonde had indicated to him that
he (Mhonde) would be comfortable if he (i.e. Murawo) attended the
workshop and presented his own paper as an addendum to his (i.e.
Mhonde's) report. He also denied being ordered by Mhonde to leave
Troutbeck Inn.
Nevertheless,
on 30 May 2004 Muvuti dismissed the appeal.
Aggrieved
by that decision, Murawo appealed to the Labour Court. After hearing
evidence and considering written submissions filed on behalf of the
parties, the Labour Court allowed the appeal in respect of the first
count, i.e. the count alleging “wilful and unreasonable
disobedience of a lawful order from a superior”, but dismissed the
appeal in respect of the second count, i.e. the count alleging that
Murawo committed “activities inconsistent with the express or
implied condition of his contract of employment”.
Dissatisfied
with that result, Murawo appealed to this Court.
The
first issue for consideration is whether this appeal raises any
question of law.
The
issue is important because in terms of section 92F(1) of the Labour
Act [Cap 28:01] (“the Act”) the only appeal against a decision of
the Labour Court which lies to the Supreme Court is an appeal on a
question of law.
What
is a question of law was considered by this Court in Muzuva v United
Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220 D-F GUBBAY CJ said
the following:
“The
twin concepts, questions of law and questions of fact, were
considered in depth by E.M. GROSSKOPF JA in Media Workers'
Association of South Africa and Ors v Press Corporation of South
Africa Ltd (Perskor) 1992 (4) SA 791 (A).
Approving
the discussion of the topic in Salmond on Jurisprudence 12ed at
65-75, the learned JUDGE OF APPEAL pointed out at 795 D-G that the
term 'question of law' is used in three distinct though related
senses.
First,
it means 'a question which the law itself has authoritatively
answered to the exclusion of the right of the court to answer the
question as it thinks fit in accordance with what it considered to be
the truth and justice of the matter';
Second,
it means 'a question as to what the law is. Thus, an appeal on a
question of law means an appeal in which the question for argument
and determination is what the true rule of law is on a certain
matter'; and
Third,
any question which is within the province of the judge instead of the
jury is called a question of law.
This
division of judicial function arises in this country in a criminal
trial presided over by a judge and assessors.”
Applying
those principles to the facts of the present case, I have no doubt
that the appeal raises a question of law. I say so because one of the
issues for determination in this appeal is whether the eiusdem
generis rule of statutory interpretation applies to the
interpretation of the act of misconduct specified in section 5 of
category I offences, the act of misconduct which Murawo was found
guilty of.
That,
in my view, is a question of law within the second sense of the term
“question of law” set out above.
As
the appeal raises a question of law, the matter is properly before
this Court.
The
main issue in this appeal is whether Murawo was properly found guilty
of “activities inconsistent with the express or implied condition
of his contract of employment”.
However,
before dealing with that issue, I would like to consider a submission
by Murawo's counsel in his heads of argument.
The
submission was that the Labour Court erred in its interpretation of
the act of misconduct specified in section 5 of category I offences,
and that in terms of the eiusdem generis rule of statutory
interpretation the conduct complained of by the G.M.B. does not
constitute the act of misconduct specified in section 5.
The
act of misconduct specified in section 5 reads as follows:
“Incitement,
intimidation, indulging in disorderly behaviour or activities
inconsistent with the express or implied condition of his contract of
employment.”
As
already indicated, Murawo was charged with “activities inconsistent
with the express or implied condition of his contract of employment”.
The
submission by Murawo's counsel was that the activities inconsistent
with the express or implied condition of an employee's contract of
employment envisaged in section 5 must be activities in the same
genus or class as incitement, intimidation and indulging in
disorderly behaviour.
The
learned author, Gail-Maryse Cockram, states the eiusdem generis rule
as follows at p153 of her work, The Interpretation of Statutes 3ed:
“Where
a list of items which form a genus or class is followed by a general
expression, the general expression is, in the absence of a contrary
intention in the statute, construed eiusdem generis to include only
other things of the same class as the particular words.”
I
should now determine whether the eiusdem generis rule applies to the
interpretation of Employment Codes of Conduct.
I
do not think it does.
I
say so because, in general, Employment Codes of Conduct are not
drafted with the same expertise and precision required for the
drafting of statutes. Almost invariably Employment Codes of Conduct
are drafted by laymen with little or no knowledge of law.
However,
even if the eiusdem generis rule applied to Employment Codes of
Conduct, I am of the view that the rule should have no application in
the present case because it would lead to an absurdity. It would mean
that “activities inconsistent with the express or implied condition
of his contract of employment” which are in the same genus or class
as “incitement, intimidation (and) indulging in disorderly
behaviour” would constitute acts of misconduct, whilst other
“activities inconsistent with the express or implied condition of
his contract of employment”, which are not in the same genus or
class as “incitement, intimidation (and) indulging in disorderly
behaviour”, which could be more serious activities, would not
constitute acts of misconduct.
In
any event, the eiusdem generis rule is not a rule of general
application, and has to be applied with caution.
This
point was made by SOLOMON CJ in Rex v Nolte 1928 AD 377 at 382, where
the learned CHIEF JUSTICE said:
“Moreover,
the rule itself is one that has to be applied with caution, and is
not of general application. Thus LORD ESHER, in Anderson v Anderson
(1895, 1 QB 752) in commenting upon the rule, said:
'I
am not surprised to find that the modern tendency of the Courts has
been to construe general words in their ordinary sense'…”.
Similar
views were expressed by BARON JA in S v Makandigona 1981 (4) SA 439
(Z AD) at 443H-444A as follows:
“It
must be remembered that the eiusdem generis rule is only one of many
rules of construction; it is not to be invoked automatically whenever
general words follow particular words. Thus Craies on Statute Law 7ed
says at 181:
'The
eiusdem generis rule is one to be applied with caution and not pushed
too far, as in the case of many decisions, which treat it as
automatically applicable, and not as being what it is, a mere
presumption, in the absence of other indications of the intention of
the legislature.'”
In
the circumstances, I am satisfied that the Labour Court did not err
in its interpretation of the act of misconduct specified in section 5
of category I offences. I am also satisfied that the conduct
complained of by the G.M.B. constitutes the act of misconduct
specified in section 5.
I
now wish to determine whether Murawo was properly found guilty of the
act of misconduct specified in section 5.
I
have no doubt in my mind that he was.
In
the Labour Court four people gave evidence and were cross-examined.
These were Murawo, the G.M.B. marketing director (“Makwenda”),
Mhonde and Zemura.
Murawo
alleged that he attended the workshop at Troutbeck Inn because he had
been invited to do so by Mhonde. That allegation was denied by
Mhonde, who said that Murawo had told him that he had been invited to
the workshop to present his report by Makwenda. On the understanding
that Makwenda had invited Murawo to attend the workshop, Mhonde
authorised Murawo's travel arrangements. Makwenda denied that he
had invited Murawo to the workshop.
Zemura
said that although initially Murawo was not part of the group of
people going to attend the workshop he subsequently told her that he
had been asked to attend the workshop by Mhonde, and present his
report. Acting on that information, she booked him into the hotel.
In
his judgment the Senior President of the Labour Court said the
following at pp 24-25 of the cyclostyled judgment (judgment no.
LC/H/51/2006):
“On
the issue of inconsistent conduct, I am persuaded to agree with the
respondent's submissions that the appellant lied and conducted
himself in a manner not befitting an officer of his status.
The
first lie relates to the issue of who actually invited the appellant
to the workshop. I do not believe that Mr Mhonde ever invited the
appellant. The appellant would have said so in his response to the
allegations contained in the letter of suspension. Instead the
appellant told the truth by stating the following:
'I
confirm that I did not receive a written invitation to present a
paper at the Troutbeck Retreat. I, however, thought in good faith
that since this was an important strategic planning session of the
organisation our department could take advantage of the gathering of
eminent people in the organisation to market the Health and Safety
portfolio, which was launched some eight months ago. I prepared a
document for presentation. …'
The
above constitutes the truth on the issue of invitation. Any departure
from the above cannot be true.
If
that were not the case I would have expected the appellant to go
further and say: 'You verbally invited me to present my ten page
report as an addendum to yours'.
The
appellant does not say so because he knows that he had told his boss
that Mr Makwenda had invited him. That was a lie.”
And
at p26 the Senior President continued as follows:
“All
arrangements for the appellant's attendance at the workshop were
based on lies from himself.
The
lie to Mrs Zemura was that the technical manager (Mhonde) had
authorised him to attend, and the lie to Mr Mhonde was that Mr
Makwenda had invited him to present a detailed paper on the Safety,
Health and Environment Programme. Both officers had then in good
faith proceeded to facilitate the appellant's attendance at the
workshop.…
My
finding therefore is that the appellant attended the workshop without
authority and that he lied about his invitation. Such conduct was
therefore inconsistent with the express and implied conditions of his
contract of employment i.e. a violation of the expected degree of
honesty and integrity.”
It
is clear, therefore, that the learned Senior President made specific
findings of fact on the credibility of the four people who testified
before him. He found that Murawo had lied, and that the witnesses who
testified on behalf of the G.M.B. had told the truth.
As
stated by Herbstein and van Winsen The Civil Practice of the Supreme
Court of South Africa 4ed at 916:
“It
has repeatedly been laid down that in view of the advantages enjoyed
by the trial court in seeing and hearing the witnesses and in being
steeped in the atmosphere of the trial, an Appeal Court is in general
reluctant to disturb the findings of a trial court on questions of
fact.”
In
the present case, I can find no reason for disturbing the findings of
fact made by the Labour Court. In my view, the conclusions reached by
the Senior President cannot be described as being so outrageous in
their defiance of logic that no sensible person applying his mind to
the questions to be decided could have arrived at such conclusions.
Finally,
I wish to deal with the submission made by Murawo's counsel that a
penalty less than dismissal ought to have been imposed.
The
issue of the appropriate penalty for misconduct inconsistent with the
fulfilment of the express or implied conditions of a contract of
employment was considered by this Court in Tobacco Sales Floors Ltd v
Chimwala 1987 (2) ZLR 210 (SC). At 218D-219A McNALLY JA said:
“In
Halsbury's Laws of England 4ed Vol 16 para 642 it is said:
'Misconduct
inconsistent with an employee's proper discharge of the duties for
which he was engaged is good cause for his dismissal, but there is no
fixed rule of law defining the degree of misconduct which will
justify dismissal.'
That
passage is based on a dictum by LORD JAMES OF HEREFORD in Clouston &
Co Ltd v Corry [1906] AC 122 at 129 (PC), cited with approval in Laws
v London Chronicle (Indicator Newspapers Ltd) Ltd [1959] 2 All ER 285
(CA) at 287H as follows:
'Now
the sufficiency of the justification depended upon the extent of
misconduct. There is no fixed rule of law defining the degree of
misconduct which will justify dismissal. Of course there may be
conduct in a servant which will not justify the determination of the
contract of service by one of the parties to it against the will of
the other. On the other hand misconduct inconsistent with the
fulfilment of the express or implied conditions of service will
justify dismissal.'
I
consider that the seriousness of the misconduct is to be measured by
whether it is 'inconsistent with the fulfilment of the express or
implied conditions of his contract'. If it is, then it is serious
enough prima facie to warrant summary dismissal.… Then it is up to
the employee to show that his misconduct though technically
inconsistent with the fulfilment of the conditions of his contract,
was so trivial, so inadvertent, so aberrant or otherwise so
excusable, that the remedy of summary dismissal was not warranted.”
In
the present case, Murawo's misconduct can hardly be described as
“so trivial, so inadvertent, so aberrant or otherwise so excusable,
that the remedy of summary dismissal was not warranted”. On the
contrary, the misconduct was serious and premeditated, and called for
the penalty of dismissal.
In
the circumstances, the appeal is devoid of merit and is, therefore,
dismissed with costs.
CHEDA
JA: I agree
GWAUNZA
JA: I agree
Mbidzo,
Muchadehama & Makoni, appellant's legal practitioners
Kantor
& Immerman, respondent's legal practitioners
