The factual background of the matter is as follows:

The respondents were employed by the appellant, Medicines Control Authority of Zimbabwe (“MCAZ”) in different clerical capacities and were also members of its Workers Committee. On 29 November 2010, the respondents were suspended from employment in terms of section 4(a) and (b) of S.I.15 of 2006, on charges of each having committed;

(i) Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contact of employment; and

(ii) Wilful disobedience to a lawful order.

It was alleged against the respondents, in their capacity as Workers' Committee members that they had attempted to force the Medicines Control Authority of Zimbabwe management to address several issues said to be of concern to the appellant's workers. The appellant's executive sub-committee believed it had resolved the various grievances and, through written communication dated 18 October 2010, advised the respondents that the committee had fully dealt with the complaints in question. Further, that the appellant desired and was effectively ordering 'closure' to the whole issue.

The respondents, who were apparently of the opposite view, thereafter (and unproceduraly, according to the appellant), wrote a memorandum to the Minister of Health setting out a multiplicity of grievances and complaints against the conduct of the appellant and its senior personnel. The appellant took a dim view of this development and saw it as constituting a failure by the respondents to comply with the employer's lawful instruction. In specific terms, the instruction was that there be closure to the whole dispute.

Letters of suspension were subsequently issued to the respondents on 29 November 2010 inviting them to attend disciplinary hearings on different dates during the early days of December, 2011. Disciplinary proceedings were thereafter conducted with the result that the respondents were dismissed from their employment.

It is, in my view, pertinent, given the appellant's first ground of appeal, to set out the sequence of events following the issuance of the letters of suspension:

29 November 2010 - letters of suspension issued to all respondents.

30 November 2010 - the respondents took the matter to a labour officer for conciliation.

15-17 December 2010 - disciplinary hearings were conducted before a disciplinary committee and all the respondents were dismissed from their employment with effect from the date of suspension.

20-22 December 2010 - the respondents wrote identical letters to the appellant advising of their intention to appeal against 'the procedure, verdict and penalty' of the disciplinary committee.

January 2011 - a follow-up letter (to the one of 30 November 2010) was written by the respondents to the Labour Officer through the Ministry of Labour. It purported to add two more grievances to the one already filed, that is, unlawful dismissal.

19 January 2011 - a Certificate of No Settlement was issued by the Labour Officer and the matter was on that day referred to arbitration on a number of terms of reference.

27 March 2011 - arbitral award issued.

17 June 2013 - Labour Court hears appeal.

11 October 2013 - Labour Court judgment issued.

The first of the arbitrator's ten (10) terms of reference reads as follows:

“Whether or not the labour officer has jurisdiction” (sic)

The arbitrator made no ruling on this specific issue, and, after considering the other terms of reference, ruled that the appellant had convened and brought the respondents before an improperly constituted disciplinary committee, in contravention of laid down procedures. The arbitrator consequently held that all the other consequential proceedings founded on the improperly constituted disciplinary committee were a nullity. He ordered that the respondents be reinstated to their positions without any loss of salary and benefits effective from the day of suspension, failing which, that they be paid damages in lieu of reinstatement.

The appellant was aggrieved at this decision and filed an appeal to the Labour Court. Its appeal having been dismissed, the appellant has now filed this appeal.

It appears to me that three issues for determination arise from the appellant's grounds of appeal, and these are:

1. Whether or not the arbitrator ought to have made a finding on the issue regarding jurisdiction.

2. Whether or not an employee representative should have been included in the composition of the disciplinary committee.

3. Whether or not the respondents waived their right to have employee representatives on the committee panel.

The first issue is articulated thus in the appellant's grounds of appeal:

“The court a quo erred in holding that the failure of the arbitrator to make a finding in regard to jurisdiction was a procedural issue that should have been raised by way of review.”

This ground of appeal addresses the appellant's contention before the arbitrator to the effect that the respondents had not exhausted all internal appeal remedies and had prematurely, therefore improperly, brought the matter to the Labour Officer. As a consequence, the appellant further contended, the matter (on the merits) was also improperly before the arbitrator.

The fact that the arbitrator was fully alive to the issue of jurisdiction having been raised before him is evident from his summation of the appellant's submissions, thus:

“Respondent (appellant in casu) submitted that notwithstanding the fact that the given notices of appeal had no grounds, the claimants never gave the internal appeals structure an opportunity to dispose of the matter. Before an Appeals Officer was even selected, the claimants went before the Labour Officer for Conciliation. The respondent submitted that the internal appeal process had not been concluded and could not be concluded.”

In its heads of argument before the Labour Court, the appellant elaborated this issue and pointed out, correctly, as the above sequence of events shows, that the respondents referred the matter for conciliation the very next day (30 November 2010) following their receipt of the letters of suspension. At that time they had neither been subjected to a disciplinary hearing nor dismissed. They, therefore, by that token, triggered and followed a process parallel to the one that started with their letters of suspension. This is because during the time that the Labour Officer, rightly or wrongly, was seized with the dispute:

(i) The appellant was in the process of conducting disciplinary hearings against the respondents, which ultimately culminated in their dismissal from employment; and

(ii) The respondents were, from the 20^th of December 2010 onwards, requesting from the appellant, records of the disciplinary proceedings for appeal purposes.

Furthermore, and despite their request for the records of the disciplinary proceedings, purportedly for appeal purposes, the respondents dispatched to the Labour Officer a follow-up letter containing additional grievances for that officer's consideration. The respondents, however, and this is not something that they dispute, never pursued the threatened appeal but were seemingly content to have the matter heard by the arbitrator, to whom the dispute had now been referred. By so doing, the respondents abandoned the procedural route which should have started with an appeal to the appellant's Appeals Committee, then gone on to conciliation (see section 8 of S.I.15 of 2006), arbitration and the Labour Court.

The appellant contends that the respondents, having been suspended in terms of S.I.15 of 2006 (its default Code of Employment), the referral of the matter to conciliation was 'unlawful' as it was done in violation of the provisions of subsection (5) of section 101 of the Act which reads as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or liable to be the subject of proceedings under an employment Code, nor shall he intervene in any such proceedings…,”

Subsection (6) imposes time limits within which a matter left un-determined at the level of the workplace, despite requisite notice, may be referred to a Labour Officer.

It is not relevant to the circumstances of this case.

It is apparent from section 101(5) of the Act that the respondents followed a route that may have placed before the Labour Officer a dispute such as the one referred to in that subsection, that is, one which is or is liable to be, the subject of proceedings under an Employment Code. This circumstance, in my view, reasonably called into question the jurisdiction of the Labour Officer to hear the dispute referred to conciliation under those circumstances. The appellant was therefore within its rights to raise the matter before the arbitrator.

While the arbitrator completely disregarded the appellant's submissions on the subject and determined the matter on other grounds, the Labour Court, before which the same issue was raised, gave its reasons for not considering it, thus:

“The first ground was not pursued in oral argument. In any event, it raised a procedural point. Such points ought to be raised by way of review rather than an appeal. Whether or not the matter was referred to the Arbitrator 'prematurely' is clearly a matter of procedure. Thus, the point could not be dealt with in this appeal.”

I find there is merit in the appellant's submission that the court a quo erred in finding that the issue of jurisdiction, that the Labour Officer did not consider, was a procedural issue that should have been raised by review.

Jurisdiction, in simple terms, can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. See HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts of South Africa, Fifth Ed. Volume 1…,.

A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter. It follows that a court or tribunal that has no jurisdiction, for whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine any other issue to do with the dispute in question.

In casu, it may be safely assumed that the Labour Officer heard and dismissed a challenge to his jurisdiction (or lack thereof) to hear the matter. He however, in my view correctly, included this particular issue among those referred for arbitration. But, as already indicated and for reasons best known to himself, the arbitrator disregarded the issue and proceeded to hear the matter on the merits. That being the case, the Labour Court ought to have found that the arbitrator misdirected himself by not addressing, before he did anything else, the question of whether or not the Labour Officer had jurisdiction to hear the matter. A positive finding on the issue would have placed the dispute properly before the arbitrator for his determination thereof on the merits. In other words, the arbitrator's competence to hear the matter was predicated on the Labour Officer having validly and properly heard and considered the matter. By contrast, a negative finding would have rendered the whole conciliation process a nullity. The effect would have been that there was no issue for further determination before and by the arbitrator. This, in turn, would have meant that the appeal against the arbitrator's award was improperly brought to the Labour Court.

There is truth to the saying that you cannot put something on nothing and expect it to hold. It will collapse. McFoy v United Africa Co Ltd (1961) 3 All ER 1169 at 1172.

Accordingly, the determination of the appeal on the merits by the Labour Court was wrong at law and cannot be allowed to stand.

It is, in the result, ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“1. The appeal be and is hereby allowed.

2. The award of the arbitrator is hereby set aside.

3. There shall be no order as to costs.”

On the date of the hearing, Mr. Goddard presided over the proceedings.

Thereafter, the applicant was found guilty on the allegations levelled against him and consequently dismissed.

The applicant then filed an application for review of the disciplinary proceedings before the Labour Court in Case No. LC/REV/H/36/11 (It is not clear from the papers why he did not appeal against his dismissal).  The grounds for review were that:

(i) He was given inadequate notice of the hearing;

(ii) That Mr. Goddard was both the complainant and adjudicator;

(iii) That the minute taker was a junior; and

(iv) That he was punished twice for the same offence. 

The Labour Court considered and rejected all of these grounds as being without merit and dismissed the application for review with costs. A subsequent application to the same court for leave to appeal was also dismissed in October 2012.

The applicant now seeks leave to appeal to this Court on the following four grounds:

(i) He was punished twice for the same offence;

(ii) He was not given three days to prepare for the disciplinary hearing;

(iii) The complainant was also the hearing authority;

(iv) The Labour Court ordered costs against him even though they were not sought by the respondent.

With respect to the first ground, he contends that the initial letter of warning constituted a final penalty for the offence in question and was never withdrawn or set aside before the hearing was instituted.

The respondent's position is as follows.

The letter of warning was not written pursuant to any hearing and was therefore of no consequence. The Labour Court properly found that two and a half days' notice was in substantial compliance with the notice requirement. Mr. Goddard was not the complainant and did not carry out any investigations. For these reasons, the Labour Court's decision was correct, and, therefore, this application should be dismissed….,.

MERITS OF GROUNDS OF APPEAL

Before dealing with the merits of the intended appeal, it is necessary to consider the nature of the relief sought by the applicant.

The order that he seeks, both before the Labour Court, and on appeal to this Court, is that his dismissal be set aside and that he be reinstated without loss of salary or benefits with effect from the date of dismissal.

In the event that the grounds of review or grounds of appeal are upheld, the appropriate relief would not be reinstatement but remittal to the respondent in order to correct all the alleged irregularities and institute fresh disciplinary proceedings thereafter. In this regard, I fully agree with counsel for the respondent that the relief sought by the applicant is irregular and incompetent.

The first ground of appeal is that the applicant was punished twice for the same offence.

It is clear from the papers, in particular Mr Goddard's letter dated 4 April 2011, that the initial letter of final warning was conceived and dispatched without any prior disciplinary proceedings or hearing having been conducted. In my view, Mrs Maisiri's finding of misconduct, and the resultant penalty purportedly imposed therefore, were wholly unprocedural and constituted arrant nullities. That being so, it was not necessary for the respondent to withdraw the final warning or set it aside before proceeding with the disciplinary proceedings under review. 

It follows that the applicant cannot be said to have been punished twice for the same offence.

The second ground relates to the failure to give the applicant three days' notice to prepare for the disciplinary hearing.

In this regard, section 6(4)(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) entitles an employee to “at least three working days' notice of the proceedings against him or her and the charge he or she is facing.”

Does this mean that any notice falling short of three working days would operate to vitiate any subsequent disciplinary hearing?

While I am loathe to pronounce any general rule on the point, it seems to me that strict compliance with section 6(4)(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) might justifiably be excused on the particular facts of this case. This is because the applicant was fully aware of the charge he was facing, well before he received the notice convening the disciplinary hearing, and therefore had ample time to prepare his defence. Additionally, there is no indication in the papers before me that the applicant was in any way prejudiced, and, if so, how, in the conduct of his defence by the failure to afford him three full days' notice of the disciplinary hearing. 

I am therefore satisfied that the court a quo cannot be faulted for having found substantial compliance with the requirements of section 6(4)(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) in this specific instance.

The third ground is based on the argument that the complainant was also the hearing authority.

On the facts in casu, this argument is entirely untenable. It is abundantly clear from the papers that Mr Goddard did not initiate or investigate the complaint against the applicant. What he did, after having considered the allegations against the applicant and his response thereto, was to convene and thereafter preside over the disciplinary hearing to determine the charges of misconduct levelled against him. Although he might have taken an inquisitorial approach at the hearing, he certainly did not testify against the applicant. 

In my view, there is nothing so unprocedural in this regard as to warrant any finding of a reviewable irregularity having been committed.

The final ground, pertaining to the award of costs by the court a quo, is not addressed at all in the applicant's founding and answering affidavits. Nor was it pursued at the hearing of the application. It must therefore be deemed to have been abandoned. In any event, even if it were to be sustained, it could not possibly justify having to interfere with the decision appealed against.

In the result, I am satisfied that the Labour Court did not misdirect itself and that its decision was correct in all material respects. The applicant has failed to establish any prospect of success on appeal. 

The facts of the matter are as follows:

The respondent is a company engaged in farming operations on a number of its plantations and estates in the Manicaland Province. The appellant joined the employ of the respondent in 1997 as an Estates Coffee Manager based at New Year's Gift. Early in 2000, he was offered, and took up, the position of Agricultural Manager. All Estate Managers were now reporting to the appellant. In 2007, the appellant became General Manager Agriculture and subsequently, in 2010, he was appointed Director.

Sometime in 2011, the appellant was charged with contravening sections of the respondent's Employment Code of Conduct (hereinafter called “the Code”). In particular, he was charged with gross incompetence and negligence in the performance of his work, and violating the respondent's Anti-Sexual Harassment policy. In the latter respect, the appellant was accused of having improper relations with two junior members of staff. It seems, however, that the sexual misconduct charges were pursued only in relation to one of the two junior members of staff.

In October 2011, the appellant was notified of disciplinary proceedings set to be conducted against him.  The disciplinary hearing subsequently took place at New Year's Gift Estate. After the hearing, on 22 November 2011, the respondent wrote to the appellant notifying him of his dismissal from duty following his being found guilty of breaching the relevant sections of the Code. The appellant appealed internally, but unsuccessfully, against the decision of the Disciplinary Committee. Aggrieved by that decision, he filed an appeal with the Labour Court. The appeal before the Labour Court was essentially on two grounds:

(i) That the charges in respect of sexual misconduct and failure to graft the macadamia seedlings had prescribed; and

(ii) That the charges, in any case, lacked sufficient evidence and were therefore not proved.

The Labour Court, having dismissed the appeal, the appellant has now appealed to this Court against its judgment.

The grounds of appeal raise the following issues:

1.Whether or not the hearing and appeal tribunals were properly or improperly constituted thus technically rendering their decision to dismiss the appellant nugatory;

2. Whether or not the allegations against the appellant, at the commencement of the disciplinary proceedings, had prescribed;

3. Whether or not the appellant's failure to graft the macadamia seedlings amounted to gross negligence in the performance of his duties, as alleged;

4. Whether or not the alleged sexual relationship between the appellant and one junior staff member was proved; and

5. Whether or not, in light of the above issues, the penalty of dismissal against the appellant was justified.

3. Did the appellant's failure to graft the macadamia seedlings amount to gross negligence in the performance of his duties?

I consider it pertinent to prefix this part of the judgment, and the next, with the observation that the disciplinary proceedings conducted against the appellant had all the hallmarks of a fully-fledged trial. Looking at the detailed record of proceedings, one gets the impression that all issues were fully ventilated and argued. Each party was legally represented and was able to call its own witnesses. These were put through comprehensive examination-in-chief, cross-examination, and re-examination. Written submissions before and after the hearing, were also filed.

Against this background, it is the respondent's argument that it proved a case of gross negligence and incompetence in fulfilling his duties, on the part of the appellant. This, according to the respondent, was in large part attributable to his failure to graft the macadamia seedlings before planting them. The respondent further charges that this circumstance resulted in it suffering huge financial loss. Lastly, that this misconduct merited the penalty of dismissal.

The appellant does not deny that he failed to graft the seedlings as alleged nor that the seller of such seedlings, Mr Scott, had advised him to do so before planting them. He blamed his failure to graft the macadamia seedlings on the fact that at the time that they were supposed to be grafted, the estates were beset with economic and other hardships leading to inadequate operational funds, unavailability of the necessary grafting tools and shortages of labour. The respondent also sought to elicit evidence from his witness, Mr PFW Lee ('Lee'), to the effect that the failure of ungrafted seedlings to thrive was attributable not only to that circumstance, but to other factors as well. He also sought, in my view unsuccessfully, to contrast the expert opinion of Mr Lee with that of the two consultants engaged by the respondent. The consultants, Mr Fennel and Mr Wessels, gave evidence for the respondent on the effect of not grafting macadamia seedlings before they are planted.

As correctly argued for the respondent, while the experts' opinions varied from the categorical to the almost ambivalent, depending on the side for which they were proffered, all experts seemed to agree that decidedly, there were disadvantages to not grafting the seedlings in the manner advised.

To illustrate this point, Mr Fennel stated that it was 'common knowledge' that one cannot plant ungrafted macadamia seedlings. He estimated that between 35 and 40ha of the plantation in question had 'no future'. Mr Wessels, the other consultant, estimated that about US$300,000= of revenue was lost and that this was largely due to the non-grafting of the macadamia seedlings. He added that only 20 per cent of the entire macadamia field was expected to bear fruit.

Contrasted with this was Mr Lee's evidence to the effect that given all the problems observed, the crop that he saw was 'surprisingly good' despite its ungrafted state.

However, as the court a quo noted, Mr Lee's other comments on the value of grafting seedlings appeared to take the appellant's case a step or two back. The court noted in relation to his evidence:

“Even his own witness, Mr PFW Lee, on page 1994 of the disciplinary record (sic), confirms the appellant's gross negligence when he says the 'orchard that we visited wasn't receiving full irrigation. The trees had been stressed because they lacked water.' On page 194 he also confirms the importance of grafting seedlings, when he says, as a consultant, he would not recommend that commercial growers use the ungrafted method. So even from the evidence of (the) appellant's own witness, the gross negligence on the issue of macadamias comes out.”

Added to this, and as correctly noted in the respondent's heads of argument, Mr Lee went further to state that the effect of not grafting seedlings would be that:

'You will have a situation where some trees will produce good fruit while others produce low fruit. Overally, you will have an average yield…,.'”

The upshot of the foregoing is, in my view, to put it beyond doubt that the failure by the appellant to graft the seedlings in question substantially eroded the quality of the product from the crop. I find that in this respect, the appellant compounded his default by:

(i) Disregarding the advice from the seller of the seedlings, that he should first graft them before planting; and

(ii) Having faced challenges in carrying out the task, failing to draw his superiors' attention to the problem before proceeding to plant.

There is, in addition, nothing on the record to suggest that the appellant disputed that the harvest from the crop in question was seriously compromised. He does not seem to dispute the loss said to have been suffered as a result of the failure to graft the seed, estimated at some 35ha and worth over USD300,000=.

I find, in the result, that the alleged gross negligence and incompetence in his work, was sufficiently proved against the appellant. In short, the appellant was properly found guilty of the misconduct of gross negligence, defined as follows in the respondent's Code of Conduct:

“12.17 Gross Negligence

An employee is grossly negligent if he/she fails to exercise proper care in the discharge of his/her duties resulting in loss of life, or serious damage or loss of company property.”

4. Whether the alleged sexual relationship between the appellant and Eulater Makuyana was proved

The appellant alleges that the court a quo made an irrational finding that the respondent had proved the violation by him of the anti-harassment and discrimination policy.

The appellant was charged, in terms of the respondent's Code of Conduct, under the banner of “An inconsistent Act, Conduct or Omission.” The specific offence of which he was accused was conducting an improper sexual relationship with a junior member of staff, one Eulater Makuyana, sometime between 2003 and 2006. This was contrary to the respondent's anti-harassment and discrimination policy (sexual misconduct), which, in relevant part, reads as follows:

“9. Sexual Misconduct

Sexual misconduct applies where both parties are consenting but the relationship is likely to jeopardise the smooth operation of the workplace…,.

Sexual misconduct towards subordinates in the workplace raises serious questions regarding the ability to provide a healthy, safe, and harassment-free work atmosphere, especially on the estates, where access to residences is easy…,.”

The relevant provision of the respondent's Code of Conduct reads:

“12.20 Inconsistent Act, Conduct or Omission

An employee commits a gross offence if he/she does any act, conduct or omission, which is inconsistent with the fulfilment of the express or implied conditions of his/her contract of employment.”

At the disciplinary hearing, and regarding this charge, the respondent called as its witnesses Eulater Makuyana, the appellant's former cook, Irene Sithole, and the appellant's alleged love rival, Mr Craig. Eulater Makuyana went into great detail in both her evidence in chief and under cross examination, regarding when the relationship started, where it was conducted, how long it lasted, the care taken by both parties to keep it secret and how it all ended.

The appellant's defence was to deny that such a relationship ever existed between him and Eulater Makuyana. It was in light of this that the court a quo, in its judgment, after analysing the evidence of the three witnesses, had this to say:

“Eulater's evidence was corroborated by her next boyfriend, Brian Craig, who got to know about the relationship when he started his own relationship with Eulater…, and asked her to choose between him and the appellant…,. Eulater's evidence was also corroborated by the appellant's cook, Irene Sithole. The court agrees with the hearing officer's finding that Eulater was a credible witness. The sum total of the evidence of Eulater, Craig and Irene shows that the relationship between Eulater and the appellant must have existed for them to talk about it because they gave their evidence long after the relationship had terminated. Why then would all three corroborate (sic) on the existence of this relationship between 2003 and 2006? If their evidence was a fabrication, why would they confirm the expiration of the relationship and not allege that it was in existence up to the time of Eulater's resignation?...,. Because of the above reasons, this court is convinced that both the Disciplinary Committee and the appeal hearing officer were correct in accepting the corroborated evidence of Eulater on the relationship with the appellant as truthful.”

I can find no fault with the reasoning and conclusion of the court a quo on this point.….,.

5. Penalty

It is the appellant's contention that the decision to dismiss him was irrational and contrary to the provisions of the respondent's Code of Conduct.

I do not find that this assertion is supported by the Code in question. The offences of 'Gross Negligence' and of 'An inconsistent Act, Conduct or Omission' are listed in Schedule IV of the respondent's Code of Conduct. The section is entitled “GROSS OFFENCES: (DISMISSAL)”. As is evident, the offences attract the penalty of dismissal. Given this circumstance, there can be no doubt that the respondent imposed a penalty consistent with what its Code of Conduct stipulates.

The position is settled that where an employer takes a serious view of misconduct committed by an employee, and, in its discretion, imposes a penalty of dismissal, the appeal court will generally not interfere with the exercise of such discretion in the absence of demonstrated unreasonableness or gross irrationality. This position was articulated in the case of Mashonaland Turf Club v Mutangadura SC05-12 where ZIYAMBI JA held as follows:

“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.”

I have already determined that the appellant, who held the most senior position on the estates in question, was, in the circumstances of this case, properly found guilty of the misconduct charges that he faced. That being the case, I am not persuaded there was any misdirection or unreasonableness in the exercise of the respondent's discretion in imposing the penalty of dismissal.

6. DISPOSITION

I find, in the final analysis, that this appeal lacks merit and ought to be dismissed. Costs will follow the cause. Accordingly, it is ordered as follows:

The background to this dispute is as follows.

The respondent, who was employed by the appellant as an Accounts Clerk, and, on 5 March 2007, was suspended from her employment on the following charges:

(a) Wilful disobedience to a lawful order;

(b) Insubordination;

(c) Dragging the name of NEWU into disrepute;

(d) Disregarding set standard rules with impunity;

(e) Failure to adhere to set rules and standards as outlined by the organization; and

(f) Gross negligence.

A disciplinary hearing was subsequently conducted following a letter addressed to the respondent, dated 5 March 2007. The respondent was found guilty of acts of misconduct falling under section 4 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006, (“the National Code”), in particular:

(i) An act or omission inconsistent with the fulfilment of the express or implied conditions of her contract of employment;

(ii) Wilful disobedience to a lawful order;

(iii) Theft or fraud; and

(iv) Gross incompetence or inefficiency in the performance of her work.

She was consequently dismissed from employment.

The matter was referred to a labour officer and eventually to an arbitrator.

The arbitrator, whose sole term of reference was to determine whether or not the respondent was unfairly dismissed, found that:

(i) The labour dispute emanated from sour working relations between the appellant and the respondent;

(ii) The Disciplinary Committee was improperly constituted; and

(iii) The Disciplinary Committee failed to consider any mitigating factors before imposing the penalty of dismissal.

The arbitrator then ruled that the respondent was unfairly dismissed.

He ordered that she be reinstated to her former position with no loss of salary or benefits, or, alternatively, that she be paid damages in lieu of reinstatement. The Labour Court dismissed the appellant's appeal against this decision and substituted the arbitrator's award with an order that the appellant pay the respondent damages calculated from the date of her dismissal to 15 September 2008. This was the date on which the respondent commenced employment with another employer.

Disgruntled with this decision, the appellant filed this appeal, which essentially raises three issues, that is;

(i) Whether, on the facts of the matter, the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee;

(ii) Whether the adjudicating authority was properly constituted; and

(iii) If so, whether or not the court a quo erred by proceeding to order that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

NATURE AND COMPOSITION OF THE ADJUDICATING AUTHORITY

The first and second issues relate to the nature and correct composition of the disciplinary body before which the respondent appeared.

The judge a quo found that although the disciplinary proceedings which resulted in the respondent's dismissal were conducted in terms of the National Code, this was done before an improperly constituted disciplinary committee. The court relied for this finding on section 2 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, which defines a 'disciplinary committee' as follows:

“'disciplinary committee' means a committee set up at a workplace/establishment composed of employer and employees representatives, to preside over and decide disciplinary cases and/or worker grievances.”

Having made this finding, the court did not hear argument on, nor consider, the merits of the dispute but proceeded to make a new award of damages in favour of the respondent.

The appellant, on the other hand, argues that the hearing was conducted by and before a Disciplinary Authority as defined in the same section of the Code, as follows;

“'disciplinary authority' means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace.”

The court a quo did not allude to the definition of 'disciplinary authority' as defined above, and its possible implications on the applicability or otherwise of the definition of 'disciplinary committee' that is contained in the same section of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

My analysis of the National Code brings to the fore two important issues:

(i) Firstly, there are two definitions of 'disciplinary committee' in the definitions section of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. There is one that I will refer to as a 'stand alone definition, and the other that is subsumed under the definition of 'disciplinary authority.' This means that a disciplinary committee, as so subsumed, is one of the 'bodies' that may constitute a disciplinary authority, just like the 'person' or 'authority' mentioned in the definition in question.

(ii) Secondly, while the two definitions are contained in the definitions section of the statutory instrument, only 'disciplinary authority' is referred to in the body of the instrument itself, and this is in section 6(1)(4)(b), which reads, in the relevant part, as follows:

“(4) At a hearing in terms of subsection (2), an employee shall have the right to -

(a)…,.

(b) Appear in person before the employer or the employer's representative or disciplinary authority, as the case may be, and be represented by either a fellow employee, worker's committee member, trade union official/officer or a legal practitioner.”…,.

The significance of this provision, as properly pointed out by GOWORA JA in the recent case of Crispen Mandizvidza v ZFC Limited and Anor (SC73-15) is that it confers on a disciplinary authority powers to conduct a disciplinary hearing at the workplace. By contrast, there is no provision in the operative provisions of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 that confers similar powers on a disciplinary committee. In effect, and as already stated, such committee is not mentioned in the body of the Code. Based on this anomaly, this Court correctly determined, in Crispen Mandizvidza v ZFC Limited and Anor (SC 73/2015), that there is no provision in the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 for an employee to appear before a disciplinary committee unless such committee is constituted as part of a disciplinary authority.

This notwithstanding, the question, in my view, may properly be posed as to whether, in the absence of such a provision, (i.e. for an employee to appear before a disciplinary committee), it is not feasible for an employer to set up a disciplinary committee as separately defined in the Code, to preside over and determine the matters listed in that definition? If not, then a further question could be asked as to whether this was the intention of the Legislature?

Tempting though it may be to delve onto these questions, I refrain from doing so for the simple reason that the questions were neither posed nor argued in casu.

The dispute in this case relates to the nature of the disciplinary body that determined the matter at hand.

I find to be persuasive in this respect, the appellant's submission that there is ample factual evidence before the court that points to a clear intention by the appellant to set up a disciplinary authority as opposed to a disciplinary committee (as separately defined). Firstly, the letter to the respondent, dated 5 March 2007, which outlined the misconduct charges against her, read, in part, as follows:

“Furthermore, you advised (sic) to appear before a Disciplinary Authority on Friday 9 March at 12.00pm. You reserve the right to bring a person of your choice to represent you.”

Secondly, the minutes of the proceedings duly conducted on 9 March 2007 are headed:

“NATIONAL ENGINEERING WORKERS UNION DISCIPLINARY AUTHORITY MINUTES”…,.

Thirdly, and in keeping with the requirement in the definition of 'disciplinary authority', the respondent was advised to bring to the disciplinary hearing, 'a person of your choice to represent you.'

The minutes themselves record that its Chairman informed those who were present that the hearing was to be conducted in terms of section 6(4) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. This provision contains no direct reference to a disciplinary committee.

Finally, the disciplinary hearing was attended by the appellant's representatives on the one hand, and the respondent and her legal practitioner on the other. This composition accords with what is provided for in section 6(4)(1)(b) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, cited above.

Had the appellant wished to convene a disciplinary committee, as described in the stand-alone definition, it would in all probability have said so, and ensured that the composition of such committee met the requirements stipulated in the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

The distinction between these two disciplinary authorities is highlighted in Crispen Mandizvidza v ZFC Limited and Anor (SC73-15) where this Court stated as follows in relation to the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006:

“It seems to me that whereas the National Code has stipulated who should constitute a disciplinary committee, the composition of a disciplinary authority has been left to the discretion of the employer.

A disciplinary authority, on the other hand, can mean a person or a committee dealing with disciplinary matters at the workplace and its composition is not dictated by the Code of Conduct…,. Clearly, the appellant is obviously mixing the two. The disciplinary authority can be constituted by a single person and it can be extended to a disciplinary committee.”

Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated.

It is all left to the employer's discretion.

In the proceedings in question, and in compliance with section 6(1)(4)(b) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006, the respondent was allowed to bring, and be represented by, her legal practitioner.

It is therefore my finding that the authority that conducted the disciplinary proceedings against the respondent was a Disciplinary Authority as defined in the Code, and that it was properly constituted.

Given all of the above, I find that the court a quo misdirected itself in finding, as it did, that:

“There was no representative from the employees' side in the Committee. This was in contravention of the Code. In view of this, I therefore do not find fault in the arbitrator's finding that the disciplinary committee was improperly constituted.”

The court a quo further rejected the argument of the appellant that the three employer's representatives on the disciplinary authority attended the hearing as prosecutors, finding in this respect, (and thereby further misdirecting itself), as follows:

“Further, assuming that the appellant's submission was correct, the arbitrator's finding would still be correct, in that (as per definition of Disciplinary Committee) the Disciplinary Committee, comprising one person (i.e. Mr Garira) would be improperly constituted and would equally suffer the same fate.”

Prior to the disciplinary hearing that took place on 15 April 2010, [relating to the above mentioned alleged misconduct], the respondent had, on 1 April 2010, been convicted of a misconduct involving negligence and had been given a final written warning as a penalty.

On 15 April 2010, he was convicted by the disciplinary committee 'only' of negligence. He was dismissed on the basis that he was already sitting on a final written warning which was given on 1 April 2010. Part of the determination by the disciplinary committee read as follows:

“Although the offence amounts to negligence but as the accused is already on a final warning, dismissal verdict awarded.”

The respondent appealed internally. He alleged, in the appeal, that the final written warning which persuaded the disciplinary committee to issue a penalty of dismissal related to an act of misconduct which occurred after the act of misconduct which gave rise to the disciplinary proceedings he was seeking to have set aside. He contended, therefore, that the final written warning had been taken into account un-procedurally.

The question that arose was whether the consideration of the final written warning was appropriate   when regard was had to the fact that it was issued out only after the first offence had already been committed but not yet determined.

The Appeals Officer dismissed the appeal and upheld the determination of the Disciplinary Committee.

The respondent appealed to the Labour Court.

In his grounds of appeal before the Labour Court, the respondent alleged that the Disciplinary Committee erred in taking into account the final written warning when considering an appropriate penalty. The essence of the complaint was that the final written warning was in respect of an offence committed after the commission of the offence in the matter before the court.

The Labour Court found that the final written warning was issued in relation to a different offence, and, as such, was not applicable to the disciplinary proceedings which culminated in the dismissal of the respondent. The court a quo stated:

“The Committee dismissed him on the basis that he was sitting on a valid final written warning in respect of similarly placed conduct. The record shows that the previous warning related to the loss by a colleague of a tool that had been allocated to the appellant. This is not in any way 'similar' to alleged acts of negligent performance of one's duties. It was therefore a misdirection on the part of the hearing committee to take this final written warning into account. The two offences were not similar.”…,.

On that basis, the Labour Court allowed the appeal and set aside the dismissal of the respondent. In its stead, the Labour Court imposed a final written warning.

It is against that decision that the appellant has appealed.

In this Court, the appellant submitted that the respondent was already sitting on a final written warning when he was convicted of the act of misconduct and was dismissed on that basis. It was argued, further, that the court a quo erred in interfering with the penalty imposed by the disciplinary committee without any legal basis for doing so.

The respondent per contra, has argued that the final written warning did not apply to the disciplinary proceedings simply because the final written warning was not in place when the act of misconduct in issue was committed. To that end it should not have played any part in the determination of the appropriate penalty. In addition, the respondent contends that the final written warning relates to an unrelated offence and for that reason should never have been a consideration in the penalty.

Whether the Labour Court was correct in interfering with the penalty imposed by the employer

The respondent did not challenge the decision to find him guilty of misconduct. What was before the court therefore was the issue of the penalty imposed upon the respondent and its appropriateness.

The court a quo could only have dealt with the question whether or not the employer had improperly exercised its discretion.

The respondent has not suggested, either in the internal appeals process or before the Labour Court, that the misconduct of which he was found guilty did not go to the root of the employment contract and that on that basis a penalty of dismissal was not justified. In Toyota v Posi 2008 (1) ZLR 173 (S) the position was stated as follows:

“That position accords with the common law principle that an employer is entitled, upon conviction of an employee of misconduct which goes to the root of their relationship, to dismiss him….,.

In any case, the fact that the two penalties, that is to say the final written warning valid for 12 months and /or demotion and/or suspension without pay for up to 30 days and dismissal are penalties provided for the serious breaches, means that any of them can be lawfully imposed as a punishment for the offences in that class of cases.”

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 fulfilment 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. See Toyota v Posi 2008 (1) ZLR 173 (S)…,.

It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion. See Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S)…,.

The respondent did not attack the penalty imposed on the premise that the exercise of its discretion by the employer was irrational or that there had been a serious or gross misdirection on the part of the employer. Indeed, before us, counsel for the respondent submitted that the employer had not erred and made the concession that there was no irrationality or misdirection on the part of the employer.

The court a quo appeared, however, to have justified its interference with the penalty on the basis that the respondent had not been found guilty of gross incompetence or inefficiency but negligence.

Clearly, the view it took was technical.

The law is settled that labour disputes should not be delayed through the consideration of issues of a technical nature but should be resolved on substantive issues.

In my view, it was immaterial whether the respondent had been found guilty of negligence as opposed to gross incompetence or inefficiency. The record shows that the evidence adduced established the charges of misconduct preferred against him.

I agree with the submissions by counsel for the appellant that the right to dismiss is available at common law and that such right is entrenched. The employer, at its election, may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion. In Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S) this Court stated:

“The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion…,.

It is trite that an appeal court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed must show a serious misdirection to justify interference by the appeal court.”

Clearly, the court a quo erred in interfering with the employer's exercise of discretion. 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 SC60-03, 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. The principle enunciated in Zikiti's case supra was inapplicable to the decision of the disciplinary and grievance committee to dismiss Nyawasha because it was not shown to the Labour Court that its finding, that her act of misconduct was of so serious a nature as to constitute a repudiation of her contractual obligation entitling Circle Cement to dismiss her from employment, was one a reasonable employer would not have made.”

In my view, these remarks are not only pertinent they are entirely apposite in the case in point. A mere examination of the charges of gross incompetence or gross negligence preferred against the respondent reveals the gravity with which the appellant viewed the respondent's conduct.

In any event, the court a quo did not sit to consider the penalty against the backdrop of the exercise of discretion by an employer. It proceeded to consider the propriety of the conviction. It therefore proceeded on a wrong premise and misdirected itself in the process. Thus, there was no principle of law upon which the court could have acted in overturning the proper exercise of discretion by the employer. 

Clearly, the court erred.

Whether the appellant could have taken into account the final written warning in imposing a penalty upon a conviction for misconduct

It was contended by the appellant that the court a quo misdirected itself in concluding that it, the appellant, ought not to have had regard to the final written warning in imposing a penalty upon the respondent.

The court a quo concluded that the final written warning was not relevant for purposes of arriving at a penalty for the sole reason that, in its view, the offences in issue were unrelated.

In this regard, the court a quo erred.

The final written warning was issued in relation to a finding of guilty of negligence. In relation to the events of 16 March 2010, although charged with gross incompetence or negligence, the respondent was found guilty of negligence. In this respect, therefore, the final written warning was a relevant consideration in relation to the offences.

The respondent never argued that the two offences were unrelated. Rather, his contention was that as the final written warning was issued for an offence committed after the commission of the misconduct for which he was dismissed, the disciplinary committee ought not to have taken it into account in assessing the penalty for the subsequent offence.

Had the court a quo dealt with the issues as presented by the parties, it would have come to the realisation that the respondent was dismissed because he was sitting on a final written warning. It would have then had to consider whether the appellant, in dismissing the respondent, had exercised its discretion improperly. Its failure to deal with the matter before it amounts to a misdirection which invites this Court to interfere with its conclusion.

The appellant contends that the respondent was dismissed because he was a habitual offender and that his offences caused losses to the appellant.

I could not agree more.

The Code of Conduct does not provide that the effectiveness of a final written warning depends on the relatedness of the offences. It is irrelevant for purposes of deciding what penalty is imposed whether or not the offences are related. What is critical is the employee's conduct in the work environment. This is what the employer has to consider in the exercise of its discretion in imposing an appropriate penalty. Any employer is bound to view previous convictions for misconduct in a negative light and come to the conclusion that the acts of misconduct go to the root of the employment contract. For this Court to interfere with the penalty imposed by the employer in the exercise of its discretion there needs to be proof that the exercise of the discretion was impeachable based on the principle laid out in Barros v Chimphonda 1999 (1) ZLR 58…, thus:

“It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution…,.”

The respondent did not, either in the internal appeal or in the court a quo, show that the disciplinary committee had made any error in the exercise of its discretion. It was not enough to suggest that the final written warning should not have been taken into account merely on the grounds that it related to a subsequent breach on the part of the respondent. The disciplinary committee would have been within its right and entitlement to take the same into account. To do otherwise would have been a negation of its mandate. The final written warning was an indicator of the type of employee that the respondent was. It was a manifestation of his attitude towards his contract of employment - an absence of diligence. There is no principle that supports the contention by the respondent that to be relevant a final written warning should be in respect of an earlier infraction for purposes of arriving at an appropriate penalty.

In my view, the appeal has merit and must succeed. In the result the following order is issued:-

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The appeal is dismissed with costs.”

The circumstances under which the respondents lost the appellant's property are fully explained in their evidence which, in spite of the evidence given by its own witnesses and the views expressed by members of the disciplinary committee, the appellant found hard to believe.

It is not disputed that on 12 August 2010 the appellant assigned the respondents the duty to deliver beds and mattresses to Rusape and Mutare. They left Harare at about 6.00pm. At about 21.00 hours the respondents phoned one Makuyo, the appellant's clerk, advising him that part of the appellant's property had been stolen by thieves as they slowly negotiated a steep rise at a place called Mafusire along the Harare-Mutare Highway. Makuyo instructed them to proceed with their journey to Mutare.

The respondents reported the theft to Headlands Police. Police officers from Headlands police station accompanied them to the Mafusire area to try and recover the stolen property. They were not able to recover anything. The police advised them to put up at the police station so that they could again search for the stolen property in the Mafusire area the next morning. The respondents put up at the police station and a search was conducted the following morning. The search did not yield any positive results. The respondents proceeded on their journey to Rusape and Mutare where they delivered the remaining beds and mattresses.

On their return to Harare, the respondents were charged with misconduct for negligence in terms of section 2.2(c) and wilful loss of employer's property in terms of section 2.3(c) of The National Employment Council for the Furniture Manufacturing Industry's Employment Code of Conduct duly registered on 19 November 1992.

The respondents gave evidence before the disciplinary committee.

A motorist stopped them after the Mafusire steep rise and told them that the doors of their truck were open and that he had seen people carrying beds similar to those in their truck into a mountain at the Mafusire area. Due to confusion, they did not take the details of the motorist, but immediately phoned Makuyo, the appellant's clerk and reported the theft to Headlands Police Station. The police escorted them back to the Mafusire area that night and the following morning.

D Matsika, E Moses, M Chatsiwa and F Makuyo testified for the appellant. 

Matsika told the disciplinary committee that he received a phone call from Makuyo who reported to him that he had received a report of theft of the appellant's property at the Mafusire steep rise. He further told the disciplinary committee that an assistant accompanying their other lorry, which was travelling behind the respondents, confirmed the theft. When asked why the respondents had not taken the details of the motorist who alerted them of the theft, Matsika said;

“It is strange from an academic point of view but considering the type of people involved it is possible.”

Moses, who apparently loaded the beds and mattresses, told the disciplinary committee that “the beds can only slip out if the ropes are untied and if the vehicle is at an uphill position.” He further told the committee that “if the beds are loaded on top they can slip out with ease.” He told the committee that in view of the way the beds were packed it was not possible for one person to offload them without assistance.

Chatsiwa, a Security Officer, went to the scene of the alleged theft to make observations. He opined that it would have taken time for one to open the truck's doors, untie the ropes and offload the two beds and mattresses. He questioned the respondents' failure to take the details of the motorist who alerted them of the theft. When it was put to him that the respondents knew that the truck doors were open but just wanted to use that possibility as a defence he said; “it was difficult as there was no one to cross examine.”

Makuyo confirmed that he received a theft report from the respondents on the night of the incident. He also confirmed receiving confirmation from one Jonah who was travelling in another truck belonging to the appellant on the same route that he had seen some people carrying beds into the mountain at the Mafusire steep rise. He further told the disciplinary committee that there is a small space at the back of the truck from which thieves could have cut locks with a bolt cutter to steal from the moving truck.

Mr Chiwaridzo, who chaired the disciplinary committee, and the majority of members of his committee initially recommended that the respondents be found guilty of negligence and be given written warnings.  He, on p 62 of the record, said:

“The facts of this matter are common cause and shall not be repeated herein. I shall confine myself to the findings of other members of the panel whose findings on the negligence of the defendants I concur with in toto. The defendants were negligent, and, as a result lost the company's property thus prejudicing the company to the tune of $1,810=.”

He thus agreed with the initial findings of the members of the disciplinary committee. For reasons which have not been placed on record, he subsequently changed the last part of the committee's recommendations and recommended that the respondents be dismissed from employment. This seems to be the reason why Susan Cakana, the appellant's Head, Group Human Resources Manager, by letters dated 15 September 2010, dismissed the respondents from employment.

Other members of the disciplinary committee held different views but converged on a finding of guilty of mere negligence for which they recommended written warnings.

Mrs L Chimbade recommended written warnings after commenting on the incident as follows:

“It is just sad that when the two were stopped by a certain motorist who advised them that the truck's doors were open and that he had seen some beds at Mafusire they did not take his details for reference purposes. History says Mafusire area is known for robberies and as such the two were supposed to be on guard, but in this case they were not very careful.”

She obviously believed the respondents and merely concluded that they were not very careful in view of the history of the Mafusire area.

Mr M Rukawo recommended a reprimand, which, in my view, is another way of recommending a written warning. He, in respect of Fungai Katswairo, the first respondent, said he “failed to exercise due care and custody of the consignment.” In respect of the second respondent he said; “As the driver's assistant, he was supposed to be extra vigilant at places such as Mafusire where known acts of banditry occur.” He believed the respondents' story and merely thought they should have been extra vigilant because of the notoriety of the Mafusire area.

Mr L Magwagwa, another disciplinary committee member, after giving a reasoned analysis of the Mafusire steep rise being three kilometres long and its history of robberies including previous theft of the appellant's property at the same place, recommended that the respondents be found not guilty. He was however of the view that if they are found guilty a lenient sentence should be imposed. It seems to me he had in mind a minimum sentence which, in the circumstances of this case, is a written warning.

The majority of the members of the Hearing Committee convicted the respondents of negligence in terms of section 2.2(c) of the Code for which they recommended written warnings. The Chairman's subsequent recommendation that they be dismissed from employment resulted in Susan Cakana writing letters to the respondents dismissing them from employment.

The respondents appealed against their convictions and dismissal to the National Employment Council for The Furniture Manufacturing Industry of Zimbabwe, (the NEC Appeals Committee). The NEC Appeals Committee, after finding that the disciplinary committee had recommended that the respondents be found guilty of negligence and be given written warnings, but had subsequently been inexplicably dismissed, upheld their appeal and ordered their reinstatement. It further ordered that if reinstatement was no longer possible, the respondents be paid agreed damages in lieu of reinstatement and that upon failure to agree on damages, either party may approach it for quantification.

The appellant appealed to the Labour Court which did not believe the appellant's assertion that the document which recommended that written warnings be given was a draft. It found, that there was no explanation for the existence of two sets of recommendations from the disciplinary committee. It found no fault in the decision of the NEC Appeals Committee which it upheld.

The appellant appealed to this court against the whole judgment of the Labour Court. Its appeal is premised on the following grounds of appeal:-

“1. The learned President erred and/or misdirected herself in law in failing to have regard to the facts of the matter and arrived at findings on the facts so outrageous which findings no reasonable tribunal applying its mind to the facts of the matter and the law could possibly have arrived at.

2. The learned President erred and/or misdirected herself in law in arriving at findings on the facts which findings constitute misdirections at law, in that she failed to consider and pay requisite regard to the following undisputed facts;

(a) That the beds had been loaded onto the appellant's truck in a manner which would not have permitted their removal unless the ropes which secured them had been deliberately untied;

(b) That the doors of the truck had been locked and secured and could not be unlocked from outside while the truck was in motion.

(c) That the appellant had never accepted the respondents' explanation that the truck had been attacked by thieves and the appellant's beds removed from the truck while the truck was in motion and without the knowledge of the respondents;

(d) The evidence as to the respective responsibilities of the respondents during the journey;

3. Having found that the record before her showed that there were two sets of minutes of the disciplinary hearing, the President erred in accepting the set of minutes which favoured the respondents when it is undisputed that both sets of minutes are unsigned. The rejection of the minutes recommending dismissal of the respondents is seriously flawed having regard to the facts of the matter and the highly improbable explanation for the loss of the appellant's property advanced by the respondents.

4. The learned President erred in her interpretation of section 6(1)(d) of the Labour Act [Chapter 28:10] and in finding that that section had any application to the facts of the matter before her and in thereby finding that the respondents' lives were placed at risk by the appellant in contravention of that section. This finding, having regard to the facts of the matter, represents a serious and gross misdirection on the part of the learned President.

5. The learned President's finding that the appellant acted unfairly in charging the respondents with misconduct having regard to the facts of the matter is seriously flawed and amounts to a serious misdirection.

6. The learned President erred in dismissing the appellant's appeal which dismissal represents a serious misdirection on the facts and the law.”

The issues which fall for determination are;

(a) Whether the decision of the court a quo is so outrageous in its defiance of logic that no reasonable tribunal, applying its mind to the facts of the matter and the law, could have arrived at such a decision.

(b) Whether the court a quo correctly interpreted section 6(1)(d) of the Labour Act [Chapter 28:10].

(c) Whether the disciplinary committee's recommendation that the respondents be dismissed from employment was lawfully made….,.

WHETHER THE DISCIPLINARY COMMITTEE'S RECOMMENDATION THAT THE RESPONDENTS BE DISMISSED FROM EMPLOYMENT WAS LAWFULLY MADE

The court a quo's and NEC Appeals Committee's decisions relied on the recommendation for a written warning which the appellant sent to the respondents to enable them to prepare for the hearing of their appeal to the NEC Appeals Committee. The respondents produced those minutes before the NEC Appeals Committee. The recommendation for dismissals which the appellant now relies on was not placed before the NEC Appeals Committee. It was only raised before the Labour Court and is not consistent with the recommendations of the members of the disciplinary committee. The NEC Appeals Committee, in its decision, commented on the disciplinary committee's recommendation as follows:

“The committee further asked why Mrs Susan Chakana, the Group Human Resources Manager had to terminate the duo when M.T. Chiwaridzo, the Designated Officer who was chairing the hearing had recommended for written warnings (sic) on last paragraph of the minutes of the hearing. The respondents could not comment on the matter.”

The appellant was the respondent before the NEC Appeals Committee.

It is therefore the party which could not respond when the NEC Appeals Committee raised this issue. If the second set of minutes, which recommended dismissal, was available, the question arises as to why it was not presented and explained during the hearing of the respondents' appeal to the NEC. The impression is thus created that the appellant, in its determination to dismiss the respondents subsequently created the second set of minutes. If the appellant had the second set of minutes in its possession when it appeared before the NEC Appeals Committee, a second question arises as to why it did not comment on the matter by simply producing the second set of minutes and proffering the explanation it later sought to give to the court a quo. The question posed by the NEC Appeals Committee is simple. It wanted to know why Mrs Susan Cakana terminated the respondents' contracts of employment when M.T. Chiwaridzo, the Designated Officer, had recommended written warnings. It is inconceivable that the appellant, armed with another set of minutes in which dismissals were recommended, would have failed to comment. It is also inconceivable that, with the dismissal recommendation on file, the appellant would send to the respondents the minutes of proceedings which recommended written warnings and be stuck when asked to explain.

In its heads of argument, the appellant argued that the court a quo failed to properly consider its grounds of appeal to the Labour Court. The issue of the two sets of minutes appears as ground of appeal no. 3 which reads as follows:

“Under its analysis before its determination, the Appeals Committee avers that the Designated Officer, who was Chairman during the hearing, had recommended for Written Warnings assuming that the element of negligence was established. This averment is inaccurate. In fact, in his ruling the Designated Officer holds that 'in the circumstances, I find the defendants guilty as charged' and in the last paragraph that 'I recommend that the Defendants, Fungai Katsvairo and Winston Mhonda, be DISMISSED effective the 13^th day of September 2010.' Had the Designated Officer not made this ruling respondents would surely not have been dismissed and there would have not been any reason for them to appeal to the NEC against the Designated Officer's ruling.”

The appellant is referring to its grounds of appeal to the Labour Court as an explanation for the existence of the two sets of recommendations made by the disciplinary committee. Grounds of appeal are not evidence and cannot explain anything. They merely present to the court of appeal what the appellant alleges are misdirections of the court a quo. An explanation for the existence of two versions of the minutes of the disciplinary committee could only have been presented by way of acceptable evidence.  No explanation of the existence of the two sets of minutes of the same disciplinary proceedings was placed before the court a quo. The appellant failed to explain when the issue was raised by the NEC Appeals Committee. 

This issue therefore remains unexplained as the Labour Court correctly noted.

It was argued on behalf of the respondents before the NEC Appeals Committee that, in terms of section 4(5) of the Code, the Chairman of the disciplinary committee was not entitled to vote. Section 4(5) of the Code provides as follows:

“The decision of the committee shall be by majority vote:

Provided that the Chairman shall not be entitled to vote except in the event of an equality of votes when he shall, in absolute good faith, have a casting vote.”…,.

The second disciplinary committee's recommendation which was used to dismiss the respondents from employment was not made in terms of section 4(5) of the Code. The Chairman voted when he was not entitled to as there was no equality of votes. He unprocedurally and unilaterally sought to overturn the disciplinary committee's earlier decision when there was no equality of votes. The circumstances warranting his casting vote did not arise in this case. The majority decision was that the respondents were guilty of ordinary negligence for which a written warning was recommended. That is the legally binding decision in terms of section 4(5) of the Code.

The Chairman's subsequent recommendation that the respondents be dismissed from employment, when there was no equality of votes, is a legal nullity.

The court a quo therefore correctly upheld the NEC Appeals Committee's decision.

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, the 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 section 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 the Code of Conduct for the Banking Undertaking, S.I.273 of 2000 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 National Employment Council Appeals 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 the respondent pays the costs of the appeal.

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, S.I.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, 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 SC55-07.

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 SC02-16 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. 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 SC60-03, 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…, 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 Masunda 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 Masunda 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 the 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.

Section 4(2)(f) of the Code of Conduct for the Banking Undertaking, S.I. 273 of 2000 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 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 appellant was charged for gross incompetence or gross inefficiency in the performance of his duties but was found guilty of gross inefficiency.

The arbitrator set aside the conviction and dismissal on the basis that the facts did not prove that the appellant was grossly incompetent or inefficient. In terms of the arbitrator's finding, for one to be found guilty and be dismissed from employment for gross inefficiency, the principles to be applied are those which are applicable to gross incompetence as stated in the case of Kwangwari v CBZ 2003 (1) ZLR 551 (H)…,. That is whether the appellant was made aware of the standard that he was required to meet; whether he was given sufficient training; and whether he was given an opportunity to reform.

In support of that finding, counsel for the appellant submitted that the findings of the arbitrator are correct because there is no substantial difference between gross incompetency and gross inefficiency. He submitted that since the offence is characterised as gross incompetence or inefficiency, the test is the same. Counsel for the appellant further submitted that incompetence is broader and inefficiency is its component.

I do not agree.

On the other hand, counsel for the respondent submitted that gross incompetency and inefficiency are two different offences that is why the framers used the disjunctive 'or'.  He further submitted that the requisites of these two offences are different.

I agree.

The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.”  The use of the word 'or' means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them.  Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done."  Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc.” (See the Oxford Advanced Learner's Dictionary, International Student's ed…,.).

An incompetent employee lacks the knowledge of what to do and how to do it, while an inefficient employee knows what to do and how to do it, but simply fails to exact himself in doing what he knows. 

There is, therefore, a difference between the two.

Thus, an inefficient employee may be competent in so far as having the necessary skill or ability to do his work but does not do it efficiently due to dereliction of duty, laziness, carelessness, negligence, lack of zeal, lack of personal drive, not being thorough, procrastination of performance of duties or some other personal traits which hinders him from doing his job efficiently and make use of resources optimally.

An incompetent employee could be able to use time and energy well but his lack of skill will not be remedied by such good use of time and other resources.

In this case, the appellant, by setting targets which earned him a respectable four out of five, demonstrates competency. He, on the other hand, demonstrated inefficiency by arranging to meet the owners of the containers, Grindsberg, on three occasions but failed to avail himself for such meetings on all three occasions when the owners came for the meetings - at his invitation. This demonstrates that the appellant's conviction was not based on a single incident. It was based on failure to supervise his Department over a period of six months and failure to perform his duties efficiently. He set targets which earned him a good rating but did not exact himself to implement them.

That said, it is important to know the relevance of this ground of appeal which seeks to impugn the decision of the court a quo based on making this distinction.

It would appear that the appellant seeks to put across the point that it matters not what principles the arbitrator applied, incompetence or inefficiency, there is no real distinction at law between the two. That is not correct because the misconduct itself is couched disjunctively. As has been highlighted above, the appellant was grossly inefficient when he failed to supervise his department and relied on assumptions for almost six (6) months and failed to attend three meetings he had scheduled.

Whether the court a quo erred in not applying section 12B(4) of the Labour Act to set aside the penalty of dismissal

The last issue relates to the issue of the penalty imposed by the disciplinary hearing. It is trite that penalty is in the discretion of the employer. See Malimanjani v CABS 2007 (2) ZLR 77 (S); Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S). The employer's discretion can only be challenged where its exercise was grossly unreasonable, capricious, or mala fide. See the case of ZFC v Geza 1998 (1) ZLR 137 (S). 

In the case of Barros v Chimpondah 1999 (1) ZLR 58 (S), the court held as follows:

“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution.”

In the absence of a finding of gross unreasonableness, the Appellate Court or tribunal cannot substitute its own discretion simply because it would have taken a different course.

In casu, the appellant had a final warning for inefficiency, albeit from a different department but within the same organization, as an employee of the respondent. Inefficiency need not be related to the same duties but is a reflection of the employee's inability to produce the best possible output. It is not like incompetency which is centred on lack of skill or ability to do a certain task but, instead, it is the manner of performing his duties. In the negative, inefficiency relates to a person's failure to perform optimally.

In light of the final warning, the respondent's exercise of discretion resulting in the dismissal of the appellant was not outrageous and did not defy logic and thus did not warrant interference.

Section 12B(4) of the Labour Act [Chapter 28:01] provides as follows:

“(4) 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.”

In interpreting section 12B(4) of the Labour Act [Chapter 28:01], this court, in Mashonaland Turf Club v Mutangadura SC05-12 held that;

“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 court a quo considered the propriety of the dismissal penalty and decided that the final warning justified the penalty.

The employee's previous disciplinary record is a relevant consideration in terms of section 12B(4) of the Labour Act [Chapter 28:01]. In the case of Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR 389 (S), failure to take into account the disciplinary record of an employee was held to be a misdirection on the part of the Labour Court in exercising its powers under section 12B(4) of the Labour Act [Chapter 28:01].

As stated above, the task of the Labour Court, sitting as an appellate body, was to take into consideration the provisions of section 12B(4) of the Labour Act [Chapter 28:01] in determining whether the employer was grossly unreasonable in the exercise of its discretion. 

It found none. 

It did not, therefore, err in finding that the misconduct went to the root of the contract of employment and warranted the penalty of dismissal.

I therefore find that the court a quo correctly found that the appellant was guilty of gross inefficiency and that the penalty of dismissal was accordingly reasonable in the circumstances. Accordingly, it is ordered as follows:

BACKGROUND

The appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan from a moneylender, Dollartech Finance, hereafter referred to as Dollartech. He furnished Dollartech Finance with his pay slip in support of the application. His application was successful and he was granted the loan. Dollartech faced difficulties in having the monthly repayment deducted from the appellant's salary as his net salary was insufficient for the purpose.

The matter was brought to the attention of the respondent by Dollartech Finance. The appellant was charged with misconduct in terms of paragraph 13(d) of the First Schedule (Section 2) of the Public Service Regulations, 2000 - dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. The allegation was that he used a fake September 2002 pay-slip to borrow money from Dollartech Finance and the amount could not be deducted because his net salary was insufficient.

The appellant was called upon to submit a written reply to the allegations. He complied. He wrote a letter on 21 February 2003.

A disciplinary hearing was held on 2 July 2004. The disciplinary committee found the appellant guilty of the misconduct charged and recommended his discharge from employment. The pertinent portion of the record of the disciplinary committee's proceedings reads:

“The Committee noted that:-

(1) Mr Garwe, in his letter of response to the allegations had shown that he felt ashamed of all what happened, he apologized, in the same letter, to the whole Department and Government as a whole for the image that could have been tarnished by his actions. He made an assurance that he would not do it again.(sic)

(2)…,.

(3)…,.

(4)…,.

(5) Mr Garwe's response before the Committee was inconsistent to his letter of response to allegations leveled against him. (sic)….,.

The committee found Mr Garwe guilty of an act of misconduct of dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. This is in terms of section 13(d) of the First Schedule (Section 2) of the Public Service Regulations 2000. (sic)

Committee's Recommendations

The Committee recommended that Mr Garwe be discharged from the Public Service Commission Secretariat.”

After the disciplinary committee hearing, the appellant allegedly fell ill from August 2004 until sometime in early 2005. During this period of illness, and specifically on 29 October 2004, the appellant submitted a letter from his doctor to his employer, requesting early retirement on medical grounds.

On 11 May 2005, the appellant received a letter of even date by the Salary Services Bureau informing him of the decision of the employer, following the disciplinary hearing of 2004, to dismiss him from the Public Service. The final paragraph of the letter advised the appellant as follows:

“Section 51(1)(b) of the Public Service Regulations 2000 provides that if you are not happy with this determination and penalty, you are free to either appeal against this determination and penalty or both to the Labour Relations Tribunal or request the Commission, in writing, through the Secretary, to review the determination or penalty or both within 21 days of this minute.”

The appellant requested a review of the proceedings.

The appellant's request for review does not form part of the record. His grounds for review are captured in the Public Service Commission's record of proceedings of April 2006 as follows:

“Mr Garwe submitted the following as his grounds for review:-

(a) That there was an inordinate delay in the manner in which the case was handled. He was charged in February 2003, a disciplinary committee was appointed more than a year later and the determination was made in May 2005. This prejudiced him as memories fade and witnesses changed residence;

(b) That the disciplinary committee was chaired by Mr Chitambara who had earlier on received the complaint from Dollartech Finance. He investigated the matter and actually promised the complainant that disciplinary action was going to be taken. He was therefore biased;

(c) That members who constituted the disciplinary committee were appointed by the Secretary to the Commission even though the Commission was not the disciplinary authority;

(d) That the disciplinary committee found him guilty without the production of the alleged fake pay-slip. The pay-slip was not produced as documentary evidence when he was charged and neither was it produced at the disciplinary hearing;

(e) That Salary Service Bureau concerned itself with dishonesty that was not directed at the employer and had not arisen during the course of duty. Further, failure to repay a loan was only misconduct if the loan was owed to the State, a statutory fund or a local authority;

(f) That the department should not have concerned itself with what members do with their pay-slips;

(g) That the misconduct charge was not properly framed to enable him to respond from an informed position. It was not defined how fake the pay slip was and there were no witnesses at the hearing to explain why the pay-slip was thought to be fake;

(h) That a pay-slip just shows how earnings for that month were intended to be disbursed. The disbursement plan could be varied before the pay-slip was issued. The pay-slip therefore did not, as a matter of fact, show what the member's net income for the month or the following months will be. The fake pay-slip did not prejudice the money-lender.”

The record of proceedings also highlights the following:

“Mr Garwe prayed that he be reinstated into the service without loss of benefits. He also urged the department to concentrate on its core business of paying salaries rather than assist debtors of civil servants (sic) to recover monies they are owed.

In a letter dated 20 May 2005, Mr Garwe submitted that his discharge from the service was in complete violation of the recommendations of a Medical Board that had recommended his retirement on medical grounds.”

The Public Service Commission convened to consider the matter, and, on 12 April 2006, the Acting Secretary wrote to him confirming the determination of his guilt and the imposition of the penalty of discharge. The letter reads in part:

“REQUEST FOR REVIEW: MR PAUL GARWE: E.C. NO.1253558 M: FORMER SENIOR PAYROLL CLERK: SALARY SERVICE BUREAU: PUBLIC SERVICE COMMISSION

The above matter refers.

Be advised that the Commission, acting in terms of section 51(3) of S.I.1 of 2000 as amended, confirmed the determination of guilt and the penalty of discharge which was imposed on you.

In arriving at the above decision, the Commission took into account the following:-

(a) That in your response to the misconduct charge, you admitted having submitted a fake pay slip to Dollartech Finance. You submitted that the pay slip had been done by tricksters. The foregoing was considered an unequivocal admission that you deliberately used an incorrect record of your earnings in order to obtain a loan from Dollartech Finance;

(b) That there was no shred of evidence to support the claim that Dollartech Finance had a hand in the misconduct charges that were preferred against you;

(c) That the fake pay slip on record showed that you had a net salary of $48,026=54. However, the correct record of your net salary for September 2002 was $51=53;

(d) That after you had been charged with misconduct on 12 February 2003, you subsequently paid the money that you owed the money lender on 20 February 2003. It was therefore not in dispute that you received a loan from Dollartech Finance. In light of the above, the fact that you were not availed a copy of the fake pay slip which you had submitted to Dollartech Finance and which pay-slip you did not request from the disciplinary authority was considered immaterial and not an irregularity;

(e) That you did not explain why you did not request Mr. Chitambara to recuse himself from the hearing if you were aware that he had investigated your case and could have been partial in the hearing. Furthermore, you did not prove that he was biased as the Chairman of the hearing. Your argument that the Chair of the disciplinary hearing was biased could therefore not be sustained;

(f) That the Commission neither declared itself the disciplinary authority in your case nor did it appoint members of the disciplinary committee which heard your case; and

(g) That you could not be retired on medical grounds before the conclusion of your misconduct case.

There was nothing wrong with the Paymaster, Salary Service Bureau determining your misconduct case before considering the recommendations of the Medical Board.”

Aggrieved by the decision of the Public Service Commission, the appellant appealed to the Labour Court seeking, in his notice of appeal, the relief that the respondent “be compelled to determine whether the appellant is still fit to remain in service and if appropriate retire him on medical grounds.

In his heads of argument before the Labour Court, he sought more extensive relief. He prayed for his appeal to be allowed with costs and for the determination appealed against to be set aside and substituted with a finding that he is not guilty of misconduct; an order that he be paid the full amount of his salary, bonuses and benefits that he ought to have been paid during the period of suspension and discharge; that he be reinstated without loss of salary and benefits or grade and that steps be taken in terms of section 18(5) to retire him from service on grounds of ill health.

The appellant's grounds of appeal in the Labour Court were basically that –

(i) The disciplinary committee was improperly constituted; 

(ii) That the Chairperson of the disciplinary committee was biased as he had been involved in the investigation of the matter;

(iii) That his disciplinary hearing was not conducted by a disciplinary authority for the reason that as he was engaged in the middle grade, only the head of Ministry could appoint a disciplinary committee to consider the allegations against him; 

(iv) That the respondent had failed to prove its case against him; and

(v) That the issue of the fake pay-slip had nothing to do with his employer or his employment.

It was the appellant's contention that the essential elements of the misconduct with which he was charged were not proved as it was not established that he had been dishonest in the course of his employment or that there had been any prejudice caused as he repaid the loan in full. He further contended that the Public Service Regulations do not concern themselves with misrepresentations that take place outside employment.

Another ground raised by the appellant was that an improper motive had caused or resulted in the charges being preferred against him and contended that this was borne out by the fact that the misconduct process was selectively applied amongst employees who had conducted themselves in a similar fashion.

In his submissions to the Labour Court, the appellant alleged, among other things, that there are about ten other employees who had done exactly what he had done but were still in employment. He is recorded as stating:

“I just want to add that other people are still employed but were also investigated but had done exactly what I did. There are about 10 or so. I actually investigated and I have copies.”…,.

He also alleged that the respondent terminated his employment in order to avoid retiring him on medical grounds.

The Labour Court found that his appeal lacked merit and dismissed it.

THIS APPEAL

Aggrieved by the dismissal of his appeal by the Labour Court, the appellant appealed to this court. His lengthy grounds of appeal raise the following issues to be determined by this court:

1. Whether or not the procedural irregularities raised by the appellant are so fatal as to warrant the disciplinary proceedings being rendered a nullity.

2. Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal.

PROCEDURAL IRREGULARITIES

Authority to discipline a member of the Commission

The functions of the Public Service Commission are provided for in section 8(1) of the Public Service Act [Chapter 16:04]. The section reads:

“Subject to this Act and any other enactment, the functions of the Commission shall be -

(a) To appoint persons to the Public Service, whether as permanent members or on contract or otherwise, to assign and promote them to offices, posts and grades in the Public Service and to fix their conditions of service. …,.

(b) To inquire into and deal with complaints made by members of the Public Service;

….

(e) Subject to Part V, to exercise disciplinary powers in relation to members of the Public Service…,.” …,.

The appellant's post of Senior Payroll Clerk is graded by the respondent as middle grade…,. In his oral submissions before this court, the appellant said that he had merely assumed that as he was a Senior Payroll Clerk and it translated to him being in the senior grade. His assumption was erroneous. In any event, and curiously so, the submission is contradictory of his previous stance in the Labour Court that he was a middle grade employee.

With reference to disciplinary authorities for the different employment levels or grades in the Public Service, section 42 of the Regulations provides as follows:

“(1) The disciplinary authority for the purposes of appointing a disciplinary committee in terms of section 43, determining any allegations of misconduct by a member in terms of section 46 and imposing a penalty in terms of section 50 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry;

(c) In the case of a member in a junior grade, the head of department;

Provided that the Commission may determine that it shall be the disciplinary authority in any particular case.

(2) The disciplinary authority for the purposes of sections 44, 47 and 48 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry or the head of office in charge of the member;

(c) In the case of a member in a junior grade, the head of department or the head of office in charge of the member.”

The respondent gave a clear explanation of how this provision was adhered to.

The Commission is, for administration purposes, a Ministry in its own right. The authority for this is found in the definition section (section 2) of the Public Service Regulations which states:

“'Head of Ministry', in relation to a member of the Public Service, means the Secretary of the Ministry in which he is employed or the occupier of any other office or post which the Commission, with the concurrence of the appropriate Minister, directs shall constitute his head of Ministry…,.'”

In casu, the Secretary of the Commission holds this post, and, in exercising the role of disciplinarian of middle grade employees, the Secretary appointed a disciplinary committee.

The appellant was charged on 12 February 2003. The committee was appointed on 2 June 2004. It sat on 2 July 2004 and the determination was assented to by all the members in August 2004.

The appellant never challenged the disciplinary authority at the hearing. He subjected himself to it. If he had challenged the disciplinary committee at the hearing, its members would have been the best placed to deal with whatever submissions or evidence would have been presented to them on the issue.

The appellant's contention or alleged irregularity under this heading lacks any basis and is thus of no consequence.

Alleged improper constitution of the Disciplinary Committee

Regarding the allegation of improper constitution of the disciplinary committee, section 43 provides:

“(1) A disciplinary authority shall appoint a disciplinary committee to hear allegations of misconduct against members and make appropriate recommendations to the disciplinary authority.

(2) A disciplinary committee appointed by –

(a) The Commission shall consist of –

(i) A Chairman who shall be any head of Ministry appointed by the Commission; and

 (ii) Two other members appointed by the Commission who are in a senior grade from any Ministry other than the one in which the allegation of misconduct arose.

(b) A head of Ministry shall consist of –

 (i) A Chairman who shall be the principal establishment officer of the Ministry or a member of equivalent rank; and

(ii) Two other members appointed by the head of Ministry who shall be confirmed members;

(c) A head of department shall consist of –

(i) A Chairman who shall be the deputy head of department or a member nominated by the deputy head of department to act on his behalf who is approved by the head of department; and

(ii) Two other members appointed by the head of department who shall be confirmed members.”

In casu, the disciplinary hearing was chaired by the Deputy Head of the department.

In terms of the Regulations, no irregularity was occasioned thereby. The appellant's view that the other two members of the Disciplinary Committee were not qualified by reason of their not being members of his department is clearly erroneous. The Regulations merely provide that the other two members of the committee should be confirmed members. A confirmed member is defined in section 2 of the Regulations thus:

“Confirmed member means a member who is confirmed in the appointment after a period of probation, or was established officer in accordance with section 5 of the Public Service (General) Regulations, 1992, before the date of commencement of these Regulations.”

The section does not preclude members from other departments from being appointed in the disciplinary committee.

The appellant's contention or alleged irregularity on this aspect is also baseless and lacks merit.

Alleged bias of the Chairman of the disciplinary hearing

The appellant alleged that the Chairman of the disciplinary committee was biased because he was the same individual who investigated the matter when it was brought to the attention of the Commission.

There is no record of the appellant requesting the recusal of the Chairman as he would have been expected to do in such circumstances. See See Mupandasekwa v Green Motor Services (Pvt) Ltd SC30-15…, where the following was stated:

“…,. The likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the Chairperson of the disciplinary proceedings. Consequently, proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside.

The court a quo found that he had failed to do so.”

There is no reason on record why he did not raise his concerns at that stage. To the contrary, he is on record thanking the Committee for facilitating the hearing and imploring them to allow him to resume his duties.

The hearing continued to finality.

The onus rests upon the person alleging bias to establish the allegation.

The appellant made an unsubstantiated allegation against the Chairperson of the committee and only did so after the conclusion of the hearing leading to his conviction and dismissal. He has failed to show that he suffered prejudice because of the alleged irregularities. In Musarira v Anglo American Corporation SC53-05, the following was highlighted:

“I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed. The rules of natural justice in such a case are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

(c) Should be allowed to call witnesses if he/she so wishes.”

Equally pertinent is the following statement that was made in Watyoka v ZUPCO SC87-05:

“The appellant also raised a complaint about the composition of the disciplinary committee, but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings which, according to the record, reflect that he had a fair hearing.”

The same position at law was also highlighted in Nyahuma v Barclays Bank of Zimbabwe SC67-05 in the following statement:

“...., it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

The dicta in all the above cases can be applied with equal force in casu.

The appellant has not shown that the Chairperson was biased; neither has he shown that he suffered prejudice because of his involvement in the case. He has thus failed to substantiate the procedural irregularities that he raised.

There have, thus, not been shown to be any procedural irregularities that warrant that the disciplinary proceedings be rendered a nullity.

Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal

The following paragraphs from the affidavit of the Chairman of the Public Service Commission attached to the respondent's notice of opposition in the court a quo captures important aspects of the relevant evidence. They read:

“9.1 The findings of the Disciplinary Committee were based on facts and his response to the charge. He did not dispute, during the hearing, that he authored the letter. In his written response, he unequivocally admitted to the charge and apologized for tarnishing the image of the Public Service. He submitted that the fake pay-slip had been done by “tricksters” who had also conned him. He also admitted that he was in financial problems. It is quite apparent that appellant submitted the fake pay-slip to obtain a loan hence the apology. He does not mention why the so-called 'tricksters' would have submitted a fake pay-slip on his behalf to further his own interests. The committee relied on this evidence in their findings. The findings were proper and grounded on facts. His offer to repay the loan using another arrangement other than the stop order facility provides corroborative evidence.

9.2 Appellant's contention that it was not established that he was dishonest in the course of employment is immaterial because the fake document was produced at his workplace. He was a Payroll Clerk responsible for the production of pay-slips. He was expected to discharge his duties honestly. The Salary Service Bureau lost credibility due to his dishonest conduct and this tarnished the image of the Public Service. The evidence clearly established that he was dishonest in the course of his duties which constitutes an act of misconduct in terms of the Public Service Regulations.”…,.

A large part of the appellant's contention is that the alleged misconduct was of no consequence to his employer, and his employer had no reason or justification to involve itself in his dealings with the moneylender.

The appellant is, unfortunately, ill-advised in holding this view.

The appellant was charged under section 13(d) of the First Schedule of the Public Service Regulations which renders the following an act of misconduct:

“…, falsifying or attempting to falsify any document with fraudulent intent or uttering a forged document…,.”

The appellant failed to explain the origins of the fake pay-slip and the employer reasonably and understandably deduced it was the appellant who had it made. The pay-slip purports to have originated from the employer. When presented, the pay-slip gave the impression that it was conveying facts as held to be true by the employer. In essence, the appellant was including his employer in his fraudulent activity, for it was on the strength of the “employer's assurance”, being the fake pay-slip, that the loan was issued.

The appellant, therefore, cannot successfully contend that his activities outside of employment had nothing to do with his employer in this regard.

As to the evidence that ought to have been considered by the disciplinary committee, the appellant was given the opportunity to present his argument and substantiate it, before both the Committee and the court a quo. At those junctures, he could have called a representative of Dollartech Finance to present the information he believed vital. It was not the respondents' duty to argue his case for him.

This renders the appellant's second, third and fourth grounds of appeal meritless.

These grounds attack the judgment of the court a quo on the bases that the behavior complained of, even going by the employer's version, did not constitute misconduct; that the person who determined the matter erred by finding that the pay advice, which was not produced in evidence, was falsified; that the disciplinary committee ought to have heard the evidence of the moneylender and that the disciplinary committee did not appreciate that it was not part of the Department's function to assist money lenders in recovering their money.

The conviction was thus warranted.

The appellant claimed that his penalty was too severe, to the extent of lacking reasonableness.

It is settled that the courts do not act to usurp the discretion of the employer in deciding whether or not to terminate the employees' contract. This discretion can only be interfered with where it is shown that the employer improperly exercised its discretion. A plethora of cases have been decided in this court in this regard.

See, among others, Celsys Ltd v Ndeleziwa SC49-15; NEC Catering Industry v Kundeya & Ors SC35-16; ZB Financial Holdings v Manyarare SC07-12.

More specifically, in the case of County Fair Foods (Pvt) Ltd v CLMA & Ors (199) 201 lJ 1701 (LAC), the court stated as follows:

“It lies, in the first place, within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which, non-compliance will be visited; interference therewith is only…, in the case of unreasonableness and unfairness.”

The appellant has failed, in his grounds of appeal, to present valid justification for the granting of the relief that he seeks.

The appellant persisted in the view that whatever he engaged in after his work hours should not be a concern to his employer, whether it be morally reprehensible or not. He went to the extent of highlighting other acts of dishonesty that an employee could engage in in his free time and which acts, the employer, in his view, should not concern itself with.

The appellant fails to realise that an employee's conduct can impact negatively on the impression that the general public develops of his employer. The appellant therefore portrays a lack of honesty in his dealings and the respondent, in its heads of argument to the court a quo, rightly posits the rhetorical question; “why should they be made to continue to employ such a person?”

In casu, the respondent expressed its concerns in an affidavit deposed to by its Chairman wherein he stated:

“A pay-slip is an official record of how the earnings and deductions for a particular month have been applied. It remains a permanent record in the payroll system. A member is expected to produce an official and authentic document of his earnings. Faking a pay-slip impacts negatively on the respondent as it results in loss of public confidence in the Public Service payroll system.”

It is not unreasonable for an employer to expect an employee to conduct himself with honesty at all times. The employer stated that the appellant was the Senior Payroll Clerk and in that capacity would be responsible for creating pay-slips. The company expected him to carry out his duties honestly, and was of the view that as a result of the appellant's actions it lost credibility and its image was tarnished.

It cannot, in the circumstances, be said that the employer exercised its discretion unreasonably. There is therefore no merit in the appellant's fifth ground of appeal which attacks the penalty imposed on the appellant as being grossly excessive on the basis that the misconduct complained of, if anything, is of an academic nature as it did not take place in the course of employment and the employer was not injured or prejudiced in any way.

The pertinent background to the matter is that the appellant, who was employed by the respondent, was given a supervisory role over two casual employees. He sent the two to the premises of National Foods Limited to pack and stack used bags in packs of 100 bags each, as directed by National Foods. The bags had been paid for and were to be transported to the respondent's premises by the appellant. It was later discovered, just before the bags were to be removed, that the two employees had packed 110 instead of 100 bags per pack, suggesting an intention to steal the extra 10 bags per pack. The appellant was charged with theft and appeared before the disciplinary committee, and, later, the Appeals Committee.

During the disciplinary hearings the two casual employees testified that they had acted under the instructions of the appellant in packing more bags than had been instructed by National Foods. The appellant, when he was given the opportunity to do so, declined to cross examine the two witnesses.

The Labour Court found that the procedural irregularities raised by the appellant did not vitiate the proceedings of the Appeals Committee because:

(a) He had received a fair hearing before the disciplinary committee and the Appeals Committee, which relied on the evidence presented to the disciplinary committee; and

(b) No prejudice was shown to have been suffered by him as a result of the alleged irregularities.

The issue before us, therefore, is whether the court a quo erred in finding that the irregularities alleged were not so fatal as to vitiate the disciplinary proceedings; that the appellant was afforded a fair hearing and that he was properly found guilty of theft.

It is our unanimous view that the court a quo correctly found that the procedural irregularities alleged by the appellant did not vitiate the disciplinary proceedings conducted by the respondent. Furthermore, we are satisfied that the Labour Court correctly found that no prejudice was occasioned to the appellant, as, in the circumstances of the case, he had received a fair hearing before the disciplinary committee, and, subsequently, the Appeals Committee.

The court, in our view, properly relied on the case of Watyoka v Zupco SC87-05, where this court stated as follows:

“The appellant also raised a complaint about the composition of the disciplinary committee but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings, which, according to the record, reflect that he had a fair hearing.”

That being the case, we find that the court a quo correctly proceeded to determine the matter on the merits.

Turning to the merits of the matter, we are satisfied that the Labour Court properly analysed the evidence before it. We note, in particular, that the appellant declined to cross-examine the witnesses who gave evidence against him, which linked him to the alleged theft. In our view, the evidence of the witnesses in question remained uncontroverted. On this basis, we are unable to find that the court a quo misdirected itself in any way in upholding the appellant's conviction and subsequent dismissal.

In the result, we are of the unanimous view that this appeal lacks merit and ought to be dismissed.

As regards costs, we are satisfied that in the particular circumstances of this case it would be inappropriate to penalize the appellant with an order for costs.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with no order as to costs.

Factual Background

The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012 when he was dismissed. Sometime in 2011, anonymous emails containing divisive and damning allegations against certain staff members as well as his superior, the Chief Executive Officer of the respondent, were circulated and sent to various employees of the respondent. The respondent conducted some investigations and concluded that the appellant was the author of the anonymous e-mails.

Consequently, in October 2011, the appellant was charged in terms of the “National Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”), with the following acts of misconduct:

1. Section 3(c)(vi): Writing and publishing anonymous letters which damaged the reputation of his superior or colleague.

2. Section 4(a)(ii): Deliberately giving untrue and misleading information about his superior concerning his professional behavior by alleging that he distributed diseased blood.

3. Section 4(a)(vii): Accusing his superior of nepotism in the anonymous letters he published.

A written invitation to the appellant to respond to the allegations met no response. On 16 November 2011 he was suspended from duty with no salary.

A disciplinary hearing was then conducted on 13 April 2012. Despite having been properly served with the notice of hearing, the appellant did not attend the hearing.

After making its deliberations on the evidence and papers that were before it, the disciplinary committee found the appellant guilty of all 3 charges. The appellant was invited to make submissions in mitigation before the imposition of a penalty. The invitation met no response. Eventually, on 26 April 2012, the appellant was advised of the penalty imposed on him. On the first charge a final written warning was found to be the appropriate penalty. On the second charge the penalty was dismissal. On the third charge the penalty was also dismissal.

On the 30^th of April 2012, the appellant lodged an internal appeal to the Finance and Administration Manager in terms of the Code. The Manager dismissed the appeal, in a reasoned ruling, for lack of merit.

Aggrieved thereby, and in terms of the same Code, the appellant appealed to the Board Chairman. The appellant then also requested the Board Chairman to recuse himself from the matter. The basis of the application for recusal was that the Board Chairman had previously been involved in the matter leading up to the appellant being charged and subsequently dismissed. The Board Chairman recused himself from the matter and indicated that “(T)he appeal would be referred to the Labour Court in accordance with the provisions of the Code of Conduct.” However, this did not happen.

In February 2013, the appellant eventually referred the matter to a Labour Officer in terms of the Labour Act. The parties did not settle at conciliation, and, subsequently, the matter was referred to arbitration.

On 30 July 2013, the Arbitrator ordered the respondent to constitute an Appeals Committee to hear and determine the appellant's appeal against the decision of the Finance and Administration Manager which had confirmed the appellant's dismissal from employment as decided by the disciplinary committee.

The Appeals Committee was set up, and, on 5 August 2013, it heard the appellant's appeal and came to the conclusion that the appellant's appeal lacked merit and it therefore dismissed it. It was against that decision of the Appeals Committee that the appellant noted an appeal to the court a quo.

The appellant raised seven grounds of appeal in the court a quo. Four of the grounds related to the composition and appointment of the disciplinary committee. Although there was no Appeals Officer involved at any stage in the matter, curiously, one of the appellant's grounds of appeal was couched in the following terms:

“The Appeals Committee erred at law and misdirected itself in upholding the decision of the Appeals Officer and Disciplinary Committee despite clear evidence of bias in both the Appeals Officer and the Disciplinary Committee.” (sic)

From a reading of the papers, it can safely be assumed that the reference to an “Appeals Officer” ought in fact to be a reference to the Appeals Committee. This is so because it is the Appeals Committee which heard the appellant's appeal against the decision of the Finance and Administration Manager to whom he had appealed against the decision of the disciplinary committee.

The appellant also challenged the determination made by the Appeals Committee which upheld the decision of the disciplinary committee to the effect that he was not entitled to legal representation in terms of the Code of Conduct.

In the rest of his grounds of appeal, the appellant challenged the finding that the information which was contained in the emails was untrue, erroneous or misleading and that it had the effect of damaging his superior's or anyone's reputation.

He also sought to challenge the interpretation given by the disciplinary committee to section 4(a)(vii) of the Code of Conduct which interpretation was confirmed by the Appeals Committee thereby leading to the upholding of his conviction.

In terms of the Code, the following is a dismissible misconduct:

“Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism and regionalism.”

The appellant's contention in this regard is that on a proper interpretation of the provision he ought not to have been charged. Rather, it is the person that he accused of practicing nepotism that ought to have been charged with the misconduct….,.

The court a quo found that the appellant had admitted to publishing the anonymous emails, and, in so doing, meant to damage the name of a superior or colleague. The court further held that the interpretation that had been attributed to section 4(a)(vii) was correct as it was clear that the listed items in the provision were not exhaustive. The court thus concluded that the appellant's appeal lacked merit and dismissed it.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by these findings and conclusion of the court a quo, hence the present appeal.

The appellant's grounds of appeal are crafted as follows:

1. The court a quo seriously misdirected itself on the facts when it concluded that “the challenged grounds for review relate to the composition of the Appeals Committee.” This amounts to a misdirection in law in that it led the court to follow a wrong path and reach a decision which is bad at law. (sic)

2. The court a quo misdirected itself at law when it focused on the improper appointment of the disciplinary committee, per se, rather than determining the substantive correctness of the decision of the Appeals Committee whose decision was being appealed against.

3. The court a quo misdirected itself in dismissing grounds of appeal one, two and three as grounds for review despite the clear and unambiguous language to the effect that it was the decision of the Appeals Committee which was being challenged.

4. The court a quo grossly misdirected itself when it ruled that “it is not in issue that the appellant was the author of the emails. This was admitted...,.” Nothing in the submissions placed before her supported this conclusion. This error of fact is so fundamental that it amounts to a misdirection at law. (sic)

5. The court a quo grossly erred and misdirected itself when it concluded that the appellant ought to have established the truthfulness of what he allegedly published. This would be tantamount to turning the established principle that “he who alleges must prove” on its head. It is a misdirection at law. (sic)

6. The court a quo grossly erred and misdirected itself in its interpretation of section 4(a)(vii) of the Code of Conduct and failing to appreciate that the charge would only stick if the alleged offender is the one committing the act of prejudice.

The appellant's prayer is for his appeal to be allowed and for his reinstatement without loss of salary and benefits with an alternative of payment of damages.

In dealing with the appeal before it, the court a quo struck out some of the appellant's grounds of appeal on the basis that they were grounds for review and not grounds of appeal. The grounds challenged the composition and appointment of the committee and they also alleged bias.

It is the striking out of those grounds which the appellant is now challenging in his grounds of appeal numbers 1, 2 and 3.

It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing which he opted not to attend.

The principle was explained in clear terms in the case of Moyo v Rural Electrification Agency SC04-14:

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances, we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

The effect therefore is that the issues raised by grounds 1, 2 and 3 fell away the moment the appellant absented himself from the disciplinary proceedings. At the hearing of this appeal, the appellant conceded this point and abandoned the said grounds 1, 2 and 3. The concession was properly made.

ISSUES RAISED FOR DETERMINATION

The remaining grounds of appeal raise two issues, that is;

(i) Whether or not the court a quo made findings supported by the evidence on record; and

(ii) Whether or not the court a quo wrongly interpreted section 4(a)(vii) of the respondent's Code of Conduct.

I deal with each of these in turn.

1. Whether or not the court a quo made findings supported by evidence on record

The court a quo found that it was not in issue that the appellant authored the e-mails because he had admitted doing so.

The appellant contends that nowhere in the record did he admit to having published the anonymous emails. He contends that all that is on record are allegations by the respondent that the anonymous e-mails were authored by him. Furthermore, that he had denied the allegations throughout. It was also argued that nothing proving the allegations was placed before the court a quo except for a bare averment by the respondent in its papers that, on 22 November 2011, the appellant deposed to an affidavit, which affidavit was never placed before the court, admitting to authoring the emails.

However, a perusal of the record will show why the finding of the court a quo is supported by the evidence.

At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe”. It lists as evidence of the misconduct in terms of section 3(c)(vi) emails dated 3 and 7 December 2010 which were sent at 11:52 and 15:27, respectively, to undisclosed recipients. It also lists e-mails dated 31 July 2011 sent at 22:46 to undisclosed recipients and it also states that: “(I)n his affidavit dated 22 November 2011, Mr Masvikeni admits to sending the anonymous emails.” The affidavit is not part of the record before this Court thereby limiting the extent to which the reference to it could assist in the determination of this matter.

More importantly though, on 5 August 2013, the following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant's legal practitioner (MN) at the Appeals Committee hearing:

“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?

MN: Yes.

TC: Ok, and with all its contents. It was not tampered.

MN: We don't know the information that was contained. Those emails were never availed to us.”…,.

Further, the following exchanges also took place between the appellant's legal practitioner, MN and Board members, JN and NM:

“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)

NM: NBSZ Bulawayo branch sold an estimated 200 units of blood…,.

NM: Well, I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.

JN: Mr Chairman, I am really confused. At one time you saying he did say that there was…, now you are saying he is distancing himself from this email.

MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)

JN: You are querying the quantity and not the contents?”

Subsequently, the following exchange ensued:

“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)

MN: There are some contents that we are disputing honestly.

NM: Did he circulate some emails?

MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities…,.

NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.

MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers. …,.

MN:…,. What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.

TC: Who were employed?

MN: By people whose names we are going to reserve.”

Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant's legal representative to a question from a Board member:

“…, all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)

In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers. He also purports to take issue with some of the content of the emails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are after all true.

In these circumstances, the finding of the court a quo that the appellant admitted to authoring the emails is a reasonable finding in the circumstances. This is particularly so when consideration is given to the fact that the applicable standard of proof is “a balance of probabilities.”

The court a quo thus made findings that are supported by the evidence on record.

2. Whether or not the court a quo wrongly interpreted section 4(a)(vii) of the respondent's Code of Conduct

Section 4(a)(vii) of the National Blood Service Zimbabwe Code of Conduct reads as follows;

“4 DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES

(a) Dishonesty

(vii) Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism, regionalism.”

It also states that the penalty for a first offence is dismissal.

The court a quo held at page 3 of its judgment:

“It is not in issue whether or not the appellant was the author of the emails. This was admitted. What is in issue is whether or not the appellant, in publishing the emails, meant or intended to damage the reputation of his superior or colleague, whether or not the information was untrue, erroneous or misleading, and, finally, what the correct meaning of section 4(a)(vii) was and whether or not the Appeals Committee misdirected itself by failing to appreciate the true meaning of the section.”

The court a quo continued, at page 5 of its judgement, as follows:

“The section refers to any other act or conduct such as nepotism, sexism, etc. The examples given such as nepotism and sexism cannot be taken to have been exhaustive. A literal reading of the section only shows that the items listed were only examples and not meant to be exhaustive. The Appeals Committee did not err.”

And further:

“On the merits of this case..., the Appeals Committee did not err in finding that the appellant had published information that he failed to show was correct and truthful. He must have meant to damage the name of either a superior or a colleague. He was therefore guilty on the merits of the case.”

The appellant's contention is that this interpretation of the provision by the court a quo was wrong in that the court failed to appreciate that if the literal rule of interpretation was applied, the charge would only be valid if the appellant was the one accused of prejudicial conduct. In casu, the appellant contends that he was rather being charged with the misconduct of accusing his superior of practising nepotism. He contends that that was a result of an improper interpretation of the section. His conduct, in his view, is above board and did not justify the laying of the charge against him as he was not the one practising nepotism.

The respondent however argues that the manner in which section 4(a)(vii) is crafted cannot be deemed to be exhaustive because prejudicial acts are not limited to those that are specifically mentioned. Any other acts which can be shown to be prejudicial also fall under the provision.

A close reading of the provision shows that it incorporates the misconduct that the appellant was charged with. The use of the words 'any other act of prejudice' and the words 'such as', is an indication that the prejudicial acts which any person may be charged with under the provision are not limited to the ones that are specifically mentioned. Once this is accepted, the conduct of the appellant, in publishing untrue and misleading material meant to damage the name of the Chief Executive Officer, qualifies as “any other act” which is prejudicial to a fellow member of staff. The section proscribes any other act of prejudice. The appellant's conduct does fall into this category.

It is for the above reasons that I find that the interpretation given to the provision by the court a quo was correct.

Accordingly, I hold that this appeal lacks merit and must be dismissed….,.

Accordingly, it is ordered that:

The appeal be and is hereby dismissed with costs.

The appellant was employed by the respondent, a health care insurance provider, as a Claims Assessor. Sometime in February 2016, the appellant, after visiting a dentist with her husband, returned to work and fast-tracked both their claims for a refund contrary to standing procedures established by the respondent. The appellant's husband's claim was however intercepted before it was fully processed. The appellant used a computer allocated to a fellow member of staff to process the claims, and, in her case, she did so fully aware that a refund was not yet due as her treatment was still in progress. She retained the hard copies of the claim in her drawer.

She was charged with breaching sections 24(c) and 25(h) of the First Mutual Holdings Limited Group Code of Conduct. The charges were framed as:

“1. Section 24 'Offences relating to disobedience or indiscipline'

(c) None compliance (sic) with established procedures or standing instructions.

2. Section 25 'Offences relating to dishonesty, theft, fraud and other related offences'

(h) Any other dishonesty towards company, fellow members of staff or members of the public.”

At the disciplinary hearing, evidence was led on behalf of the respondent to the effect that the appellant processed and authorised a high cost procedure without a quotation or an invoice from the laboratory which was supposed to undertake the work. The appellant confirmed to the disciplinary committee that she knew that she was wrong in confirming the claims in the absence of invoices.

The appellant was found guilty on both charges and penalties of a final written warning on the first Count and dismissal on the second were imposed on her. The net result was thus a dismissal.

An appeal by the appellant to the Appeals Committee was unsuccessful. The committee was of the view that, taking into account the position occupied by the appellant, the role and the tasks that she performed required an honest person who honours, respects, and abides by the processes laid down by the business in order to avoid financial leakages. The Appeals Committee further found that the appellant's actions compromised the relationship of trust that was supposed to prevail between her, the company, and other employees.

The appellant then appealed to the Labour Court. Her appeal was dismissed. The Labour Court was satisfied that, on the evidence that was placed before the disciplinary and appeals committees, the appellant was properly found guilty. On the penalty imposed, the Labour Court endorsed the confirmation of the same by the Appeals Committee. It found that the dishonesty exhibited by the appellant was evidently pre-planned. It is against that decision that the appellant then filed this appeal to this Court on the following grounds:

1. The court a quo erred and grossly misdirected itself on questions of law by making the following findings of fact which are outrageous in their defiance of logic that no reasonable court properly applying its mind to the issues could have arrived at the conclusion reached:-

1.1. By confirming a finding of guilty in the circumstances where it is clear that the appellant did not commit the offences she was convicted of. The respondent failed to prove its case on a balance of probabilities. With respect to Count Two, the respondent had the obligation to prove, beyond reasonable doubt, that the appellant committed the alleged offence, this is particularly so, considering that the allegations being raised are criminal in nature. The appellant was found guilty of the offences without any evidence substantiating the same.

1.2. By making a finding to the effect that the appellant admitted to having violated the procedures in the circumstances where it is clear from the record that no such admission was ever made, but, rather, the appellant maintained her plea of not guilty which was not successfully rebutted by the respondent.

2. The court a quo erred at law by ordering dismissal which is excessive considering the appellant's circumstances including, but not limited to, previous disciplinary record, length of service and personal circumstances. It is trite that disciplinary hearings must be largely educational or corrective and dismissal must be resorted to as a measure of last resort.

3. The court a quo erred at law by failing to consider that the appeals authority proceeded to issue a verdict basing only on written grounds of appeal where it was very clear that the grounds of appeal were arguable and there was need for an oral hearing to clarify the issues. The appellant's constitutional right to be heard was therefore infringed upon.

At the hearing of the appeal before this Court, counsel for the appellant abandoned grounds of appeal 1.2 and 3 thereby restricting argument to grounds of appeal 1.1 and 2.

The two grounds of appeal raise three issues for determination.

(a) The first is whether the appellant was properly found guilty on the first Count.

(b) The second is whether a charge of a criminal nature before a disciplinary tribunal in an employment set up must be proved on a balance of probabilities or beyond reasonable doubt.

(c) The third is whether dismissal was the appropriate penalty in the circumstances.

During submissions before the court, counsel for the appellant conceded that the appellant had been properly convicted on the first Count.

The first issue for determination thus ended there....,.

I will now turn to the last issue for determination which arises from the second ground of appeal. It is whether the appellant's challenge of the penalty imposed upon her by the respondent has any merit.

In motivating the second ground of appeal, the appellant's counsel's submission was that the penalty imposed on her was excessive. The stance of the respondent, on the other hand, was that the appellant was in a position of trust which she breached by committing the act of misconduct, which act went to the root of the contract of employment thereby warranting dismissal.

In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S)…, the court applied the common law principle that an employer has a right to dismiss an employee following conviction for misconduct of a material nature and going to the root of the employer and employee relationship.

In Celsys Ltd v Ndeleziwa 2015 (2) ZLR 62 (S)…, the court also held that;

“The law is settled that in circumstances where an employer takes a serious view of an employee's misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question.”

The same position was held by GOWORA JA in the unreported judgment of Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC02-16 where…, the court held as follows;

“I agree with the submissions by Mr Mpofu that the right to dismiss is available at common law and that such right is entrenched. The employer, at its election, may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion.”

Having established that an employer has the discretion to impose a penalty after finding the employee guilty, the next inquiry is, on what basis can an Appeal Court set aside the penalty imposed by the employer?

The court, in Malimanjani v CABS 2007 (2) ZLR 77 (S)…, stated as follows;

“The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion…,. It is trite that an Appeal Court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed must show a serious misdirection to justify interference by the Appeal Court.”…,.

In the case of Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC02-16 …, the Court held:

“For this Court to interfere with the penalty imposed by the employer, in the exercise of its discretion, there needs to be proof that the exercise of the discretion was impeachable based on the principle laid out in Barros v Chimphonda, thus:

'It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution…,.'”

Again, in Celsys Ltd v Ndeleziwa 2015 (2) ZLR 62 (S)…, the court held:

“The question that then arises, on the basis of the law and authorities on this matter, is whether the appellant (the employer) judiciously exercised its discretion in deciding on, and imposing, the penalty of dismissal. It is only upon a negative answer to this question, that an Appeal Court would be justified in interfering with such decision.”

From the authorities above, it is clear, therefore, that where an aggrieved employee seeks to have the penalty imposed upon him by the employer set aside on appeal, his ground of appeal must be set out in a way that clearly shows an attack on the exercise of discretion by the employer. In performing that task, a legal practitioner would be wise to take heed and be guided by the considerations so clearly set out in Barros v Chimphonda (supra).

In his second ground of appeal the appellant did not attack the exercise of discretion by the respondent.

As held in Songono v Minister of Law & Order 1996 (4) SA 384 (ECD)…, the purpose of grounds of appeal is to inform the respondent of the case that he has to meet and to notify the court of the points to be raised. The appellant did not allege that the respondent failed to properly exercise its discretion when it imposed the penalty on her. It is a requirement of law that the exercise of discretion be clearly attacked. The appellant failed to do so. On that basis, therefore, the second ground of appeal fails.

For the above reasons, the appeal is without merit and it is ordered as follows;

“The appeal be and is hereby dismissed with costs.”

Dissatisfied with the manner in which the proceedings had been conducted, the respondent, as applicant, filed a review application seeking an order setting aside his suspension and the proceedings that had taken place before the Hearing Officer. After hearing argument from both parties, the Labour Court found in favour of the respondent. Pursuant thereto, the court made an order setting aside the dismissal of the respondent and remitting the matter for a fresh hearing within a period of three months.

It is against that order that the appellant has appealed to this Court seeking an order setting aside that decision and replacing it with one dismissing the review application.

BACKGROUND FACTS

In view of the issues that arise for determination before this Court, it is necessary to set out the factual background in some detail. The facts of this case are these.

The respondent was employed by the appellant as its General Manager, Operations, a position that was also commonly referred to as Chief Operations Manager. The appellant, a duly registered company in terms of the laws of this country, is a subsidiary of Meikles Ltd.

On 24 April 2014, the respondent was placed on suspension with benefits pending investigations into allegations that he had improperly handled the purchase of a hundred cases of Famous Grouse Whiskey from an entity called Fly Crew Investments. The suspension was at the instance of Meikles Ltd. It was alleged that Fly Crew Investments did not have a valid agreement with Meikles Ltd for the supply of whiskey; that it was not the holder of a valid wholesale liquor licence; and that it had not provided proof of the origin of the whiskey.

On 9 May 2014, Meikles Limited preferred two charges of misconduct against the respondent. It was alleged that he had, firstly, improperly authorised the purchase of the whiskey from Fly Crew Investments, and, secondly, that he had engaged in conduct that gave a company known as Zimsource an unfair advantage over other suppliers of mealie meal.

The letter containing the charges also set down the disciplinary hearing for 14 May 2014 at the Meikles Boardroom.

Apparently, because of the senior position occupied by the respondent and the fact that the Executive Chairman of Meikles Ltd, one John Moxon (“Moxon”), was to be called as a witness, a decision was taken, by Meikles Ltd, to appoint a senior legal practitioner as the Hearing Officer. For her services, she was to be paid by Meikles Ltd.

On 14 May 2014, the respondent, accompanied by a legal practitioner from the firm of legal practitioners representing him, attended the hearing but requested for the postponement of the matter. This was on the basis, firstly, that the legal practitioner representing him, a Mr Muza, was out of the country in Hong Kong and, secondly, that he had only been served with the notice of hearing on Friday 9 May 2014, giving him very little time to prepare for the hearing. The parties agreed that the hearing be postponed and be heard during the period 27-30 May 2014. As further agreed, the respondent, later that day, confirmed, in writing, that he was waiving any rights he may have had in respect of the fourteen (14) day period during which the matter was required be determined in terms of the relevant Code.

On 20 May 2014, the respondent's legal practitioners wrote to the Hearing Officer raising a number of concerns;

(i) The first was that the letter containing the charges did not indicate in terms of which Code, or sections of the Code, the respondent had been charged.

(ii) Secondly, that since the respondent was not employed by Meikles Limited but by TM Supermarkets (Pvt) Ltd, the decision by Meikles Ltd to suspend and prefer charges of misconduct was null and void.

(iii) The respondent also took issue with the appointment of a legal practitioner, an outsider, as the Hearing Officer.

The respondent's legal practitioners demanded the reversal of the disciplinary process and reinstatement of the respondent and gave the appellant up to 22 May 2014 to comply.

By letter dated 22 May 2014, Meikles Ltd lifted the suspension and directed the respondent to report for duty the following day at 7:45a.m. The respondent's legal practitioners responded immediately, advising that they had not been able to contact the respondent but had ascertained from his wife that he would only be back late on 25 May 2014, and that, consequently, he would only be able to report for duty on 27 May 2014, as 26 May 2014 was a public holiday.

On 23 May 2014, i.e. the following day, TM Supermarkets (Pvt) Ltd, the appellant in this case, then suspended the respondent without pay and benefits in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) (“the National Code”). The appellant simultaneously preferred a total of five charges alleging conduct inconsistent with the fulfilment of the express or implied conditions of his employment contract. The charges were based on the same set of facts that had given rise to the two charges previously preferred against him and which had subsequently been withdrawn. Attached to the charges were various documents which the appellant indicated were to be used during the hearing. The letter set the matter down for hearing on Friday 30 May 2014.

On 28 May 2014, the respondent's legal practitioner wrote to the appellant, advising that he would be engaged in the Labour Court on 30 May 2014 and that he would therefore be unable to attend the hearing on that date. He further indicated that he would be available to appear before the Hearing Officer on either 4 June 2014 or 10 June 2014.

Following receipt of that letter, a Colonel Dyke and a Mr T. Mpofu, representing the appellant, communicated with the respondent's legal practitioner during which tentative dates, in particular 11 June 2014, were discussed. The respondent's legal practitioner reiterated that he was not able to attend the hearing set for 30 May 2014. No confirmation of the new hearing date was made by the two gentlemen.

In a letter dated 30 May 2014, the appellant confirmed the discussion between the respondent's legal practitioner and its representatives, namely, Colonel Dyke and Thabani Mpofu, on the need for a postponement of the hearing that had been scheduled for 30 May 2014 to a future date. In the letter, the appellant advised that the matter would now be heard on 3 June 2014. As 30 May 2014 was a Friday, this effectively gave the respondent only one business day i.e Monday, 2 June, to prepare for the hearing.

On 2 June 2014, the respondent's legal practitioners once again wrote to the appellant re-iterating that he would be in the Labour Court on 3 June 2014 and expressing surprise that, despite previous discussions, the matter had been set down for 3 June 2014. In the letter, he again sought a postponement.

It is what happened on 3 June 2014, the date of hearing, that gave genesis to the proceedings before the Labour Court.

On that day, the respondent, and a legal practitioner from the firm representing him, appeared before the Hearing Officer. A request for the matter to be postponed was refused. Instead, the Hearing Officer stood the matter down for an hour, indicating that witnesses, some from as far afield as Victoria Falls, were in attendance. The respondent's legal practitioner, Mr Muza, eventually appeared before the court at 12 noon. At that stage he raised a number of objections. Firstly, that the respondent required a copy of the order for 300 bags of mealie meal that formed part of the charges against him. He also required the procedure manual, a summary of the employer's evidence and access to the respondent's laptop, which was in the appellant's custody, in order to prepare his defence. Expressing the view that the respondent was merely trying to facilitate a postponement of the matter which had been denied, the Hearing Officer ordered that the hearing proceed. She was of the view that since the employer was to call a total of six (6) witnesses, it was unlikely that the matter would get to the defence case by the close of business that day, and, accordingly, directed that the documents be furnished by the close of business so that the respondent would have the opportunity to prepare his defence “especially after hearing the evidence of the witnesses called by the employer.”

There were three other objections raised after the ruling by the Hearing Officer that the matter proceeds.

The first was that the Hearing Officer should recuse herself because she was not an employee of the appellant; that there were other suitable persons within the company who could conduct the hearing; and that, in any event, as she stood to be paid for her services by the appellant, she was likely to be biased against the respondent.

It was also submitted that the involvement of Thabani Mpofu, who was an outsider, vitiated the proceedings.

Whilst accepting that Thabani Mpofu's status within the appellant did not appear to be clearly articulated, the Hearing Officer concluded that Thbani Mpofu was working for the appellant on what appeared to be a consultancy. She accordingly dismissed all the objections raised, including the objection that the suspension was unlawful because, at the stage when the respondent was again suspended, on 23 May 2014, he had not yet been reinstated.

After the several rulings by the Hearing Officer, the respondent's legal practitioner complained that he and his client were very unhappy about those rulings, in particular, that the hearing proceeds in the absence of the documents requested. He complained that they were not in a position to cross-examine witnesses without those documents. He also questioned the set down of the matter when it had been made clear in several correspondence that he would not be available on 3 June 2014. He further complained that the hearing was an ambush.

That notwithstanding, the Hearing Officer gave the green light for the appellant's first witness to be called. At that stage, the respondent and his legal practitioner then walked out of the hearing.

After the respondent and his legal practitioner had walked out, various witnesses were called at the instance of the appellant. In a determination dated 6 June 2014, the Hearing Officer found the respondent guilty of all the charges preferred against him. An invitation to the respondent to address in mitigation of the punishment to be meted out was ignored. In a ruling dated 11 June 2014, the Hearing Officer imposed the ultimate penalty of dismissal.

APPLICATION FOR REVIEW BEFORE THE LABOUR COURT

Dissatisfied, the respondent, as applicant, filed an application for review before the Labour Court seeking the setting aside of the suspension and disciplinary proceedings. The basis of the application was that:

(a) The decision by the hearing authority to allow access to certain documents and the laptop only at the end of the first day of hearing was irrational in that it compelled the respondent to conduct his case without the documents which the hearing authority had agreed should be furnished.

(b) The disciplinary process was conducted in circumstances which exhibited a real possibility of bias.

(c) John Moxon could not properly depose to an affidavit on behalf of the appellant, a separate legal entity from Meikles Ltd, which he was Executive Chairman of.

(d) Inadequate notice of the hearing set for 3 June 2014 had been given.

(e) The suspension was irregular as it was effected by one Colonel Dyke whose position within the appellant was unknown.

(f) The re-suspension effected on 23 May 2014 was null and void because, as of that day, he had not been fully reinstated; and

(g) In the absence of an agreement on the date and time of reinstatement, the finding that he should have made himself available for work first thing on 23 May 2014 was irrational.

The application for review was opposed by the appellant on a number of grounds.

(i) First, that John Moxon could properly depose to an affidavit on behalf of the appellant.

(ii) Second, that the failure to cite the authority that made the decision was a fatal omission.

(iii) Third, that the respondent had failed to exhaust domestic remedies provided for in section 8(6) of the Code of Conduct which allows a party aggrieved by a decision or manner in which his matter is handled to refer the case to a labour officer.

(iv) Fourth, that the failure to file a supporting affidavit to the application exhibited mala fides on the part of the respondent.

(v) The appellant further averred that, had the respondent genuinely wanted to use the various documents in his defence, he should have requested for them prior to the hearing, and that, “in any event they were going to be furnished to him before presenting his defence.”

(vi) The appellant further averred that the appointment of a legal practitioner as Hearing Officer was permissible in terms of the law. Further, that the respondent wanted the Hearing Officer to set the matter down on a date that suited his convenience.

(vii) It also disputed that the respondent was not given adequate notice of the hearing, having known of the charges since 23 May 2014.

(viii) Lastly, it stated that, once the respondent had been re-instated, he should have reported for work immediately.

After hearing argument on the issues raised in the review proceedings, the Labour Court made a number of findings.

(i) First, that the opposing affidavit filed by John Moxon, Chief Executive Officer of Meikles Ltd, complied with the Rules, notwithstanding that the employer was TM Supermarket (Pvt) Ltd, a subsidiary of Meikles Ltd.

(ii) Second, that the failure to cite the Chairperson of the disciplinary committee was not a fatal irregularity since it was clear that the Hearing Officer was appointed by, and acted at the behest of the appellant.

(iii) Third, that Colonel Dyke had the authority to act on behalf of the appellant, and, consequently, his involvement in the process was not irregular.

(iv) Fourth, that although the respondent walked out of the disciplinary proceedings, he had the right to seek the review of that part of the proceedings that took place in his presence.

(v) Fifth, that it was an irregularity for the Hearing Officer to proceed with the hearing after directing that the documents and laptop that the respondent required be made available at a later stage in the proceedings.

(vi) Lastly, that the involvement of persons not employed by the appellant was not necessarily irregular.

The court found that the appellant had satisfactorily explained the involvement of Colonel Dyke. There was also nothing irregular in the appointment of a legal practitioner as Hearing Officer even though she was to be remunerated by the appellant at the end of the day. The court ultimately found that the failure to provide the documents and laptop were a reviewable irregularity and that a perception of bias had been created. On that basis, the court set aside the order dismissing the respondent and directed the remittal of the matter to the appellant.

The present appeal is against that order.

GROUNDS OF APPEAL

The appellant has attacked the findings of the court a quo on four grounds. I cite these verbatim:

“1. The court a quo erred holding (sic) that the respondent's failure to cite the Presiding Officer of the Disciplinary Hearing was not fatal to its petition for Review. At law. when one attempts to impugn proceedings on account of the conduct and bias of a presiding officer, it is peremptory that such adjudicator be cited and joined as a party in the Review proceedings.

2. The court a quo grossly misdirected itself in determining that the presiding officer in the respondent's hearing was biased. Bias can only be determined in the face of cogent facts evidencing such bias and cannot be inferred from a refusal to postpone a matter that was time-sensitive and had been, on an earlier occasion(s), been delayed (sic).

3. The court a quo erred in failing to hold that, by the respondent abandoning and absenting himself from the disciplinary proceedings, he thereby abdicated any right and entitlement to impugn such proceedings or the proceedings eventual outcome. It is an established rule of law that if an employee walks out of the proceedings, he does so at his own peril and at the palpable risk of having the proceedings conducted in his absence.

4. The court a quo grossly misdirected itself in finding that there was a procedural irregularity as regards the respondent's request for documents. The finding was grossly irregular as evidence had led (sic) showing that the documents requested by the respondent were for the preparation of his defence and not documents that were to be used by the applicant in the prosecution of its case against the respondent. In any case, the respondent was never denied the documents, but, instead, denied a spurious request for postponement.”

APPELLANTS SUBMISSIONS ON APPEAL

In motivating its grounds of appeal, the appellant made the following submissions.

(i) First, the allegations of bias on the part of the Hearing Officer were not a trifling matter. The party accused of partiality should therefore have been given the opportunity to explain or defend herself. This is particularly so given that the Labour Court exercises the same powers of review as does the High Court.

In terms of the High Court Rules, Rule 256 in particular, an application for review must be directed at, inter alia, the presiding officer of the tribunal.

(ii) Secondly, in view of the fact that the hearing authority was presiding over proceedings that were time sensitive, the request for a postponement was considered against this requirement.

(iii) Thirdly, no bias was exhibited.

(iv) Lastly, by walking out of the proceedings, the respondent had waived all rights to impugn the entire proceedings, including that part of the proceedings that had taken place in his presence. He could not, therefore, appeal or seek the review of a process he had abandoned.

RESPONDENT'S SUBMISSIONS ON APPEAL

The respondent, on the other hand, submitted as follows;

(i) First, the appellant had sought a remittal of the matter to the court a quo. That relief having been granted, the appellant could not have appealed against the order.

(ii) Second, that the Hearing Officer does not exist independently of the employer. The substance of the dispute concerned the irregularities in the disciplinary processes of the appellant. That issue could be determined without the need to involve the authority. In any event, the law is now settled that it is improper for an adjudicator to seek to justify its conduct or pitch camp with one of the litigants. There were no other facts which the authority was required to set out as the record of the proceedings was before the court.

(iii) Third, that there is no law that bars a litigant from challenging conduct that takes place in his presence.

(iv) Fourth, once the Hearing Officer accepted the request that the documents and laptop should be made available, she could not proceed before these were made available. In fact, by nevertheless proceeding with the hearing, the Hearing Officer gave the impression of bias.

(v) Lastly, the involvement of Colonel Dyke and Thabani Mpofu, who were outsiders, vitiated the proceedings.

ISSUES FOR DETERMINATION

I consider the issues that arise for determination before this Court to be the following;

(i) First, whether it was mandatory, on the part of the respondent, as applicant a quo, to cite as a party, the Hearing Officer who chaired the disciplinary proceedings. If so, whether the non-citation renders the entire review proceedings a nullity.

(ii) Second, and only in the event that the answer to the first issue is in the negative, whether the proceedings before the legal practitioner were afflicted by procedural irregularity as would justify an order setting them aside.

(iii) Third, whether, in any event, the legal practitioner conducted herself in such a way as to induce a sense of bias.

(iv) Fourth, the implication, in law, of the respondent walking out in the midst of disciplinary proceedings and attacking the conduct of the portion of the proceedings that took place in his presence. In particular, whether he has the locus standi to launch a review application in respect of that part of the proceedings that took place during his presence.

(v) Fifth, the effect on the proceedings following the involvement of Colonel Dyke and Thabani Mpofu, who prosecuted the disciplinary proceedings on behalf of the appellant.

I deal with each of these in turn.

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 GMB 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 GMB 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 GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB 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 GMB 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 GMB 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 GMB 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 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 GMB 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…, 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)…, 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 GMB 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 GMB 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 GMB had told the truth.

As stated by HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa 4ed…,:

“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) [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.

They premise this argument on the provisions of section 12B of the Labour Act [Chapter 28:01] which places an onus upon an employer to establish that the dismissal of an employee was not effected unfairly. The section further provides that if an employee is dismissed in the absence of an employment code then such dismissal constitutes unfair dismissal for purposes of the Act.

The respondent is not in a position to show that the dismissal of the appellants was effected in terms of a registered code of code as required by section 12B of the Labour Act [Chapter 28:01].

To the extent that section 44(1) of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations, S.I.258 of 1996 which provides for the dismissal of employees of the respondent in contradiction with the provisions of sections 12B and 92D of the Labour Act [Chapter 28:01], and, most importantly section 2A of the Labour Act [Chapter 28:01], then it is taken as having been repealed and not to be given effect to.

The contention by the appellants as to the alleged irregularity of the proceedings invites this court to review the proceedings under which the appellants were dealt with by the respondent and subsequently dismissed. This Court derives the power of review in this instance from section 25 of the Supreme Court Act which reads in relevant part:

“25 Review powers

(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

The respondent failed to comply with the provisions of section 12B of the Labour Act [Chapter 28:01].

An employer who terminates the contract of employment with an employee must proceed either in terms of a registered employment code or the Labour National Employment Code S.I.15 of 2006. The respondent utilised the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations, S.I. 258 of 1996 and it has failed to establish that the dismissals were effected in terms of the provisions of section 12B of the Labour Act [Chapter 28:01]. Any disciplinary procedures which have been effected outside the peremptory provisions of section 12B of the Labour Act [Chapter 28:01] are clearly unlawful.

The dismissal of the appellants was therefore null and void.

The appellants have prayed that the appeal be allowed with costs, and, in addition, that the matter be remitted to the court a quo for a determination on the merits.

In view of the conclusion that the proceedings conducted by the respondent were null and void, the inevitable result is that the dismissals are of no force and effect by operation of law. As a consequence, the appellants are entitled to an order of reinstatement to their former positions without loss of salary and benefits.

The appeal is allowed with costs.

The judgment of the court a quo is set aside and substituted with the following:

It is ordered as follows:

1. The dismissal of the appellants by the respondent from employment be and is hereby set aside.

2. The respondent be and is hereby ordered to reinstate the appellants to their former positions without loss of salary and other benefits.