MALABA DCJ: This is an appeal
against the whole judgment of the Labour Court given on 3 September 2012. At the end of hearing argument from both
parties, the Court dismissed the appeal with costs for lack of merit and
indicated that reasons for the decision would follow in due course. These are
they.
The appellant was employed by the respondent as an acting Human
Resources Manager. As such he had under his custody exclusive control of all confidential
personal files of employees of the respondent including his own. That
contractual duty imposed on him the need to act in accordance with trust placed
on him to keep documents safe. When a new General Manager came into office, he
asked for the personal files of all employees. Documents relating to the
disciplinary record of the appellant for the entire period, of seventeen years
he was employed by the respondent were missing from his personal file. Initially the appellant alleged that his “lawyers”
had the documents. The appellant had
removed from his personal file all documents on his disciplinary record to create
an impression that he had a blameless employment record. He was charged with contravening
ss 4(a) and (g) of the National Employment Code of Conduct Regulations S.I
15/2006. The first charge preferred against the appellant was to the effect that:
i.
Being the custodian of personal files of all
employees, the appellant had failed to give a reasonable and satisfactory
explanation for the missing and confidential company documentation from his personal
file.
The second charge was that:
ii.
The appellant had intimidated a newly
appointed Human Resources Manager so that he did not take up the job with the
company.
The facts giving rise to the second charge were that the
appellant got to know that a new Human Resources Manager had been appointed. He had visited the company on a
familiarisation tour. The appellant went to the office of security guards at
the entrance of the company premises where he opened the visitors book. He extracted from the book the personal
details of the new Human Resources Manager including his residential address. In a
desperate bid to intimidate the new Human Resources Manager so that he did not
take up the job with the respondent, the appellant wrote an anonymous letter
threatening him with bodily harm if he took up the job. In the anonymous letter,
the appellant alleged that the Human Resources Manager would not be welcome at
the company because he belonged to a different tribe and region. These
sentiments were contrary to the company policy which discouraged discrimination
on tribal and regional grounds in the recruitment of staff.
The third charge preferred against the appellant was that:
iii.
He had failed to obey a lawful instruction to
discipline an employee as requested by the General Manager.
The Disciplinary Committee found the appellant guilty
of the first two charges. It acquitted
him of the third charge. The appellant
was dismissed from employment. Aggrieved by the Disciplinary Committee's
decision the appellant appealed to the Appeals Officer who upheld the dismissal.
The question whether the dismissal of the appellant was
unfair was heard by an arbitrator who determined that the appellant had been
properly found guilty of the acts of misconduct charged against him. He, however, took the view that the penalty
of dismissal was unwarranted. In a
rather contradictory process of reasoning, the arbitrator said:
“…….However it is my
considered view that both acts of misconduct are not serious enough to warrant
the verdict of dismissal as there was no direct benefit on the part of the
Claimant (appellant in casu)………I take
note that the trust the Respondent had on the Claimant has been eroded and he cannot
be trusted to occupy any office of authority such as the one he was appointed
to temporarily occupy. It is therefore my considered opinion that the penalty befitting
this offence would be to demote the Claimant to a lower grade than the one he
was acting for the period prior to the confirmation of the current incumbent to
commence from the date of suspension. I accordingly
order the re-instatement of the Claimant to a grade lower than the one
currently occupied….”
The respondent appealed to the Labour Court on the
following ground:
“The Honourable arbitrator fundamentally
misdirected himself in finding that the penalty of dismissal was unduly harsh
and excessive in the circumstances and therefore awarding the penalty of
reinstatement to a lower position.”
The Labour Court held that the appellant's action went
to the root of the contract of employment.
The court a quo held that the
penalty of dismissal imposed on the appellant was appropriate. It allowed the appeal and set aside the
arbitrator's determination on the penalty.
The appellant appealed against the court a quo's judgment on the following
grounds:
1.
The court a
quo erred at law in entertaining the respondent's appeal, which appeal,
raised no questions of law. The respondent's appeal was defective in that it
did not satisfy the attendant requirement of s 98(10) of the Labour Act [Cap. 28:01].
2.
In the absence of a gross misdirection, the
court a quo erred at law in
substituting its discretion for that of the arbitrator. At law, the court a quo could only interfere with the
discretion of the arbitrator where it was alleged and proved that the
arbitrator made a decision that defied logic and which no person who had
applied his mind to the facts would have arrived at.
3.
Without assessing mitigation, the court a quo grossly misdirected itself in
holding that the appropriate penalty to be levied against the Appellant was
dismissal. In exercising discretion, the court a quo was enjoined, by operation of s 12 (B) (4) of the Labour Act,
to consider mitigating circumstances and assesses the same against the gravity
of the offence.
4.
The court a
quo erred in summarily allowing the respondent's appeal without addressing
the Arbitrator's reasoning or the facts upon which such reasoning was
predicated. At law, the court a quo
was enjoined to apply its mind to the record of the proceedings and thereafter
judicially evaluate if there existed any error of the law. The court a quo could not arbitrarily ignore the
proceedings before the arbitrator and precipitously apply its own determination without applying its mind to the record.
The question for determination is whether or not the
court a quo misdirected itself in
interfering with the decision of the arbitrator. Mr Zhuwarara correctly stated the principle that an appellate court can
only substitute its discretion for that of the tribunal whose decision is
appealed against where there has been a serious misdirection or error of law committed
by the tribunal.
In Tobacco Sales
Floors Ltd. v Chimwala 1987(2) ZLR 210(s), McNALLY JA approved of the
dictum by LORD JAMES OF HEREFORD in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on at
218H-219A to say:
“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.”
The seriousness of a misconduct is measured by looking
at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found
guilty of went to the root of the contract of employment in that it had the
effect of eroding the trust the employer reposed in him as found by the
arbitrator could it still be said that the misconduct was trivial to warrant a
penalty of dismissal? The appellant worked
against company policy. It is a serious
act of misconduct for an employee to deliberately act against the employer's
policies to advance personal interests.
When an employee causes confidential records of an
employer relating to his disciplinary record which are under his exclusive
custody by reason of his position as an acting Human Resources Manager, to disappear
to create a false impression of having a blamelessness record, he or she
undermines the trust the employer would have reposed in him or her. By his or her own misconduct the employee repudiates
the contract of employment thereby giving the employer the right to dismiss him
or her from employment.
The appellant undermined the very status of being an
employee thereby disabling himself from fulfilling any of the express or
implied terms or conditions of his contract of employment with the respondent.
The circumstances of the commission of the offences the appellant was convicted
of show that the continuance or a normal employer and employee relationship had
an in effect been terminated.
In Standard
Chartered Bank Zimbabwe Limited v Michael Chapuka 2005 (1) ZLR 52 (S) at
57 C it is stated:
“Conduct which is found
to be inconsistent or incompatible with the fulfilment of the express or
implied conditions of a contract of employment goes to the root of the
relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter.”
In Toyota
Zimbabwe v Posi 2008 (1) ZLR 173 (S) at 179F the Court held that the Labour
Act [Cap. 28:08] contains no
provision which either expressly or by necessary implication alter purports to
the common law principle that an employer has a right to dismiss an employee
following conviction for a misconduct of a material nature going to the root of
the employer and employee relationship. Once it was accepted that the misconduct
the appellant was found guilty of went to the root of the contract of
employment, dismissal was the appropriate penalty.
Mr Zhuwarara
sought to argue that there are different levels of trust in an employment
relationship. The argument was that a person employed in a substantive position
is under a higher degree of trust than one employed in an acting position. The contention was that since the appellant
was in an acting position of a Human Resources Manager he was not subject to
the same degree of trust by his employer as he would have been if he was a
substantive Human Resources Manager. Mr Zhuwarara overlooked the fact that the
trust the employer reposes in an employee relates to the expectation that the
employee will diligently and honestly perform the duties of the office he or
she occupies whether in a substantive or acting capacity. The duties of an office are no less important
in the business of an employer because they are performed by an employee in an
acting capacity.
Mr Zhuwarara
also attacked the correctness of the decision of the court a quo in imposing the penalty of dismissal on the appellant on the
ground that it did not place much weight on mitigatory factors. He said that was contrary to the requirements
of s 12B(4) of the Act which provides:
“In any proceedings
before a labour officer, designated agent or the Labour Court where the
fairness of the dismissal of an employee is in issue, the adjudicating
authority shall, in addition to considering the nature or gravity of any
misconduct on the part of the dismissed employee, consider whether any
mitigation of the misconduct avails to an extent that would have justified
action other than dismissal, including the length of the employee's service,
the employee's previous disciplinary record, the nature of the employment and
any special personal circumstances of the employee.”
The above section contemplates consideration of relevant
mitigating factors. Relevant mitigating factors ought to be considered together
with relevant aggravating circumstances. In the present case, the arbitrator in
setting aside, the decision of the employer considered irrelevant
mitigating factors. The arbitrator noted and considered the fact that the
appellant had not derived any benefit from his wrong doing. Such a factor was
irrelevant as no benefit could be derived from a misconduct that eroded trust
between the employer and the employee. All the employee could achieve by his
misconduct was the erosion of the trust the employer had reposed in him. The arbitrator further considered that the employer
did not suffer any financial loss arising from the appellant's misconduct.
Again such factor was irrelevant. Prejudice suffered by the employer as a
result of the appellant intimidating a prospective substantive Human Resources
Manager did not have to be measured in financial terms.
In Mashonaland
Turf Club v George Mutangadura SC-5-2012 the Court said:
“In the exercise of their powers in terms of s
12B (4) of the Labour Act, the Labour Court and arbitrators must be reminded that
the section does not confer upon them an unbounded power to alter a penalty of
dismissal imposed by an employer just because they disagree with it. In the
absence of a misdirection or unreasonableness on the part of the employer in
arriving at the decision to dismiss an employee, an appeal court will generally
not interfere with the exercise of the employer's discretion to dismiss an
employee found guilty of a misconduct which goes to the root of the contract of
employment.”
The
appeal had no merit. It was accordingly
dismissed with costs
GWAUNZA
JA: I agree
MAVANGIRA
JA:
I agree
Chambati Mataka & Makonese, appellant's legal practitioners
Magwaliba
& Kwirira, respondent's legal
practitioners
