GUVAVA JA:
This is an appeal against a decision of the Labour Court dated 1 December 2011.
The background to this matter may be summarized as follows:
The respondent
was employed by the appellant as a Health Education Officer. In August 2007 the
respondent approached her supervisor, a Mrs Chimhamhiwa, and advised her that
they were overwhelmed at the clinic because of the growth of the group. During
this period the respondent was granted permission to attend a training course
in December 2007 until the end of the month at the Red Cross. In January 2008,
on completion of the training respondent went on leave which was approved by
the employer. Upon her return from leave
the respondent wrote an email to Mrs Chimhamhiwa indicating that she required
the assistance of a Clerk to clear, for reimbursement, all medical aid forms which
had accumulated. In spite of the request no additional personnel was appointed
to the office of the respondent to assist with filing of the medical aid forms.
The respondent did not indicate to her superior that the medical aid forms for
reimbursement had not been filed as is required in terms of their laid down
procedure. She merely indicated that there was pressure in her department and
they were lagging behind.
A new manager was appointed in June 2008. She noticed
that the medical aid forms had not been filed. She made a report and the
respondent was charged with misconduct. She was charged with contravening s 10
(2) of the Code of Conduct for the Banking Undertaking Statutory Instrument 273
of 2000 for 'negligence causing substantial loss to the bank' and in the
alternative, 'failure to comply with standing instructions or follow
established procedure resulting in substantial loss to the Bank.' In terms of
that code this offence was a category C offence which did not warrant a penalty
of dismissal. At the end of the disciplinary hearing the respondent was found
guilty of 'gross negligence' by not submitting CIMAS claims totaling ZW$623
trillion over the period December 2007 to May 2008. In terms of the Code of
Conduct, this offence was a category D offence which warranted a penalty of
dismissal.
The respondent
noted an appeal against this decision to the National Employment Council
Appeals Board. The Board found that she had been wrongfully dismissed and
ordered her reinstatement without loss of salary and benefits from the date of
wrongful dismissal. In making the award, the board noted that the bank had
showed no evidence of having taken any disciplinary measures against the
employee before taking the drastic measure to dismiss her. It also observed
that the bank went on to employ two people to cover the employee's duties after
dismissing her, which proved that the job was demanding as had been reported by
the employee and also that it 'doubted' the correctness of the charge of
negligence on the grounds that the issue complained of was a one off incident.
The appellant
noted an appeal against that decision to the Labour Court. That court dismissed
the appeal. The appellant now appeals against that decision to this court on
the following grounds:
“1. The
learned president fell into error when she grossly misdirected herself on a
point of fact when she found that the respondent's failure to submit claims
forms was in fact caused by the applicant who did not respond to the increased
volumes of work.
2. The
learned president misdirected herself that negligence had not been proved when
in fact the respondent did not deny that negligence had been proved. Further
and in any event, in her capacity as a Health Education Officer, failure to
submit claims forms to CIMAS weekly was total disregard of her duty.
3. The
learned president erred on a point of law by failing to pay due regard to the
fact that the evidence presented proved the charge of gross negligence and
accordingly the respondent was correctly found guilty of that charge.
4.
The learned president also fell into error
by failing to order payment of damages as an alternative to reinstatement as
she was legally bound to.“
The relief sought by the appellant was that the
respondent be dismissed from employment with effect from 13 July 2008
and that respondent pays the costs of the appeal.
The appellant indicated in its heads of argument and
in submissions to this court that the main issues to be determined are whether
the respondent was negligent and if she was negligent, whether the appellant
properly took a serious view of her negligence.
As is apparent from
the facts placed before this court the respondent was charged with 'negligence
causing substantial loss to the bank' and in the alternative, 'failure to
comply with standing instructions or follow established procedures resulting in
substantial loss to the Bank' in terms of the Code of Conduct for the Banking
Undertaking Statutory Instrument 273 of 2000. This offence is a category C
offence which does not warrant a penalty of dismissal. However, the hearing
officer found her guilty of 'gross negligence' which is a category D offence
resulting in her dismissal. The National Employment Council Appeals Board
ordered the reinstatement of the respondent but did not make a finding on this
aspect regarding the decision that was being appealed against. The court a quo made mention of this in its
judgment. On page 2 of the judgment of the court a quo noted that:
“The
charge that had been preferred against the respondent was a category C offence.
In terms of the code of conduct category C offences attracted a warning if one
was found guilty. The hearing officer however found her guilty of a Category D
offence i.e. gross negligence when the allegations that had been preferred
against her were lesser charges. In this regard the hearing officer misdirected
himself.”
The court a quo
went on to consider other issues and made a finding that the respondent had
continued to take the initiative to highlight and bring it to the employer's
attention that her department was overwhelmed with increased volumes of work as
a result the merger. The reasoning of the court a quo was that the disciplinary committee was bound to impose the
penalty indicated for that breach regardless of the seriousness with which the
employer viewed the offence.
The argument which was accepted by the court a quo was that the respondent ought to
have been found guilty of the offence that she had been charged with, a lesser
offence or a competent offence flowing from the one charged. Instead, the
hearing officer found her guilty of gross negligence which is a more serious
offence than the one with which she had been charged.
Although the respondent was charged with 'mere
negligence', it cannot be denied that what the respondent did was a serious act
of misconduct when one has regard to all the factors in this case. In my view,
the hearing officer cannot be impugned for having arrived at this conclusion
after hearing all the evidence against the respondent. It should be noted that
disciplinary proceedings , not being courts of law, are not bound by strict
rules of procedure and it was quite
proper for him to find her guilty of gross negligence where the evidence
disclosed such an offence. In any event there is no doubt that the respondent
was still found guilty of negligence though it was of a more serious nature.
At common law an
employer has the power to dismiss an employee where the employee is found
guilty of misconduct that goes to the root of the employment contract. See Toyota Zimbabwe v Posi SC-55-07. In
essence, where the employer takes a serious view of the misconduct he
can dismiss an employee even if in terms of the code of conduct the offence
would have attracted a lesser penalty. This
position was set out in Zimplats (Pvt)
Ltd v Godide SC 2/16 where
GOWORA JA noted that:
“At
common law an employer has the discretion on what penalty can be imposed upon
an employee who has been found guilty of an act of misconduct which is
inconsistent with the fulfillment of the expressed or implied terms of his or
her contract of employment and where such misconduct goes to the root of his or
her employment contract. [2] It is also settled that an appeal court cannot
interfere with the exercise of this discretion by the employer unless there has
been misdirection in the exercise of such discretion”
GOWORA JA further
noted that:
“The
court ought to have asked itself whether the employer had properly taken a
serious view of the matter and whether there was sufficient evidence to support
the conviction on the preferred charges. Unfortunately the court a quo did not ask itself these pertinent
questions and proceeded to determine the matter on an issue which was not even
premised on the grounds of appeal before it. The law is clear that once an
employer takes a serious view of the matter and the aggravated nature of the
misconduct, it is irrelevant that the code does not provide for dismissal as a
penalty. In Circle Cement v Nyawasha
SC 60/03, this court held:
“Once
the employer had taken a serious view of the act of misconduct committed by the
employee to the extent that it considered it to be a repudiation of contract
which it accepted by dismissing her from employment the question of a penalty
less severe being available for consideration would not arise unless it was
established that the employer acted unreasonably in having a serious view of
the offence committed by the employee.””
I associate myself
fully with the above remarks. The issue to be determined by this court is
whether the employer took a serious view of the matter and made a finding that the
misconduct was of an aggravated nature based on the evidence. It is also
important to establish whether the respondent was guilty of an offence which
went to the root of the employment contract. It is clear from the record that
the disciplinary hearing was conducted in a fair manner and the respondent had
the chance to advance evidence in the claim made against her. It is apparent
from a reading of the record that the hearing officer, Mr I. Nyakonda,
was cognizant of all the factors that were presented before him. In determining
the penalty to be imposed he stated the following:
“I
have weighed the facts presented by both parties. I do understand that there
was an increase in work because of the merger. However, Mrs Masunda did not
understand the value attached to CIMAS claim forms, though she outlined that
she was working under pressure. I saw an email here dated 25 April 2008 from Mrs
Massunda to Mrs Chimhamhiwa advising her of the pressures that the clinic was
facing. The challenge is the value of these claims, one, the face value and two,
time value considering inflation. At the moment the bank had to fund the
claims. The claims submitted so far amounted to +/- ZW$ 620 trillion. Mrs Massunda
indicated that CIMAS might pay three quarters of the amount under normal
circumstances. The focus is now on the monetary value of the offence at hand
and the period that was taken by the respondent to take this issue seriously. According
to the code of conduct I would refer this as gross negligence causing serious
loss to the bank and this falls under category D and the penalty that goes with
this is dismissal.”
There is no doubt that the hearing officer took a
serious view of the misconduct of the respondent in making a determination of
the penalty. The fact that the respondent did not report that the medical aid
forms were not being filed as is required shows that she did not really
appreciate the gravity of the offence. The financial loss to the appellant, as
a result of respondent's negligence, was extremely high. The respondent did not
dispute this during the hearing. She also did not dispute the fact that she
only made a report that there was a need to employ another person but did not
explain that the work overload had resulted in the failure to file the medical
aid claim forms for a long period. Had she reported this fact to her supervisor
the employer might have ensured that another person was employed to assist in
doing the outstanding filing work. Her negligence resulted in the company
losing ZW$ 623 trillion.
It is clear
that the filing of the medical aid claims was an integral part of the
respondent's duties as an employee of the appellant. Where an employee fails to further the
interests of the employer by omitting or refusing to do the work he is employed
to do such failure amounts to a serious misconduct that goes to the root of the
employment contract. There can be no doubt on the facts of this case that the
respondent failed to execute her duties as was expected.
The Code of
Conduct for the Banking Undertaking Statutory Instrument 273 of 2000 s 4(2) (f)
provides that:
“(f)
Having examined all the facts, the hearing officer shall determine the
disciplinary action to be taken, having taken note of comments by the workers''
representative.”
The
hearing officer, having considered all the circumstances, took a serious view
of the matter and this resulted in the
respondent being found guilty of gross misconduct and dismissed from
employment.
That decision, in my view, was not unreasonable. The loss suffered by the appellant was high. That
loss could have been avoided had the respondent made a complaint earlier. I
find no impropriety in the manner in which the hearing officer exercised his
discretion in this regard.
It is a trite principle of our law that an appellate
court should not interfere with an exercise of discretion by a lower court or
tribunal unless there has been a clear misdirection on the part of the lower
court. In other words, the decision must have been irrational, in the sense of
being so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who applied his mind to the question could have arrived
at such a conclusion. See Hama v National Railways of Zimbabwe
1996 (1) ZLR 664.
The only basis upon which the court a quo could have made a finding for the
respondent is by investigating whether the decision of the hearing officer was
irrational in the above sense and it is upon making such a finding that the
court could have set aside the decision of the disciplinary tribunal in the
absence of a finding of a misdirection by that tribunal. The court a quo therefore misdirected itself by
interfering with the finding of the lower tribunal.
In any event
the order of the court a quo was
incompetent as it sought to order the National Employment Council to reinstate
the respondent without making a corresponding order for damages in the event
that reinstatement was no longer possible. This order did not comply with the
law. In terms of s 89 (2) (c) (iii) of the Labour Act [Chapter 28:01] an order for reinstatement must have a corresponding
order for damages in the event that reinstatement is no longer possible. This position has been set out in a number of
decisions. (See Mandiringa & Ors v National
Social Security Authority 2005 (2) ZLR 329 (S).
In the circumstances, the court is satisfied that the
appeal ought to succeed.
Accordingly, it is ordered as follows:
1.
The appeal succeeds with
costs.
2.
The order of the Labour
Court is set aside and substituted with the following:
“The appeal is allowed with costs”.
ZIYAMBI
JA: I
Agree
GOWORA
JA: I agree
Gill, Godlonton &
Gerrans, appellant's Legal Practitioners
Matsikidze & Mucheche, respondent's Legal
Practitioners
