BHUNU
JA: This
is an appeal coupled with a cross-appeal against the judgment of the
Labour Court.
Both
appellants in the main appeal and the respondent in the
cross
appeal Emmerson Pamire were employed by the respondent. Following
leakages of confidential information at the work place, the
respondent ordered them to sign declaration of secrecy forms. They
wilfully disobeyed that order and were suspended from employment
pending disciplinary action.
As
managerial employees, the first and second appellants had been issued
with motor vehicles by their employer. Upon suspension they were
ordered to return the motor vehicles. They both wilfully refused to
return the motor vehicles as ordered by the employer.
All
the 3 employees were eventually charged with wilful disobedience to
lawful orders before the Disciplinary Authority. They were all found
guilty as charged and dismissed from employment on 28 November 2013.
Disgruntled by their dismissal from employment, they approached the
labour officer, who in turn referred the dispute for arbitration in
terms of section 93 of the Labour Act [Chapter
28:01].
The
terms of reference before the arbitrator branded, “CLAIMANTS'
ISSUES FOR DETERMINATION” were as follows:
“Whether
or not the dismissal of the three claimants was fair and lawful?
1.
Whether or not the employer was entitled at law to institute fresh
disciplinary proceedings without complying with the Supreme Court
order of 16 July 2013 ordering them to reinstate the claimants
without loss of salary and benefits?
2.
Whether or not it was lawful for the employer to charge first and
third claimants with wilful disobedience of lawful orders arising out
of their failure to handover vehicles when the matter of ownership
and possession of the vehicles was sub
judice (the
subject of a legal dispute) which is still pending in the High court
in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010
which cases were all consolidated under case number HC4258/2010 for
purposes of trial?
3.
Whether the labour dispute leading to the disciplinary proceedings
instituted by the respondent against claimants on 17 July 2013 had
prescribed in terms of section 94 of the Labour Act Chapter 28:01 and
whether the respondent had a right to charge the claimants for
misconduct over the events that allegedly occurred on August 2009?”
The
arbitrator on the basis of the terms of reference placed before her
found that the employer's orders were lawful as they were meant to
advance the employer's business. She accordingly upheld the
claimants' conviction. She however, overturned the penalty of
dismissal and substituted it with a lesser penalty of final written
warning.
The
award reads:
“AWARD
1.
The Respondent Zimbabwe Manpower Development Fund (ZIMDEF) be and is
hereby ordered to substitute the dismissal penalty with a final
written warning valid for twelve (12) Months.
2.
Respondent be and is hereby ordered to reinstate the claimants
without loss of pay and benefits from the date of dismissal.
3.
If reinstatement is no longer tenable parties may negotiate for
damages in lieu of reinstatement failure of which either party my
approach the arbitrating authority for quantification.”
Dissatisfied
with the above order reinstating the 3 respondents, the employer
appealed to the Labour Court. The respondents did not however
cross-appeal against the arbitrator's award upholding the
Disciplinary Authority's verdict convicting them of dismissible
acts of misconduct as charged.
The
second respondent in the court a
quo,
Emmerson Pamire was however partially successful in that Court. The
court a
quo
set aside the arbitrator's award and upheld the decision of the
Disciplinary Authority dismissing the first and third respondents
from employment as prayed for by the employer.
The
appeal against the reinstatement of the second respondent in the
court a
quo
was however unsuccessful in that the court a
quo
upheld the arbitrator's order of reinstatement. The court a
quo's
order reads:
“WHEREFORE
IT IS ORDERED THAT:
1.
The appeal be and is hereby allowed.
2.
The arbitration award issued by arbitrator C K Kadenga dated 8
December 2015 is set aside.
3.
The dismissal from employment of 1st
and 3rd
respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is
upheld.
4(a)
The appellant shall reinstate the 2nd
respondent Emmerson (Emmerson Pamire) without loss of salary and
benefits; or
(b)
If reinstatement is no longer tenable, appellant shall pay 2nd
respondent damages in such (sic) either agreed by the parties or
assessed by this court.”
Unhappy
with the Court a
quo's
judgment ordering their dismissal from employment, the first and
second appellants in the main appeal, Tendayi Tamanikwa and Frank
Tinarwo, appealed against part of the court a
quo's
judgment upholding their dismissal from employment. Having appealed
only against part of the judgment, they erroneously went on to pray
for the setting aside of the whole judgment.
The
notice of appeal reads:
“TAKE
NOTICE
that the Appellants hereby appeal against
part of the judgment of the Labour Court …”
(My
emphasis).
Whereas
the relief sought reads as follows:
“RELIEF
SOUGHT;
The
appellants seek the following relief:
1.
That the appeal is allowed with costs.
2.
That
the judgment of the court a
quo
is set aside
and in its place substituted by the following:
2.1
The dismissal from employment of the 1st
and 2nd
appellants be and is hereby set aside.
2.2
The Respondent shall reinstate the 1st
and 2nd
Appellants without loss of salary and benefits with effect from their
date of dismissal.
2.3
If reinstatement is no longer suitable, the Respondent shall pay
damages to 1st
and 2nd
Appellants without loss of salary and benefits in an amount to be
agreed or assessed by the Labour Court.”
(My
emphasis).
It
is plain that the notice of appeal and the relief sought by the
appellants are irreconcilably contradictory. It is rather irrational
for the appellants to appeal against only part of the judgment and
then seek to have the whole judgment set aside.
The
learned Chief Justice in his routine supervisory and administrative
functions noted the fatal irregularity and engaged counsel for the
appellants with a view to enlighten him about the fatal defect in his
notice of appeal.
His
extra
curial
intervention was made in good faith to avoid clogging the court with
fatally defective appeals. As the Chief Justice was not presiding
over a court but merely performing his administrative function there
was nothing he could do to prevent counsel from taking his patently
defective notice of appeal to court.
Disputing
the fatality of the defects in his notice of appeal, counsel for the
appellants steadfastly stuck to his guns and refused to take the
learned Chief Justice's wise counsel. It however dawned on counsel
later on that his notice of appeal was defective.
He
then filed an application to amend the defective notice of appeal on
6 September 2017.
In
his application to amend the notice to appeal counsel for the
appellants acknowledged that the notice was defective for want of
compliance with Rule 7(b) of the Supreme Court (Miscellaneous Appeals
and References) Rules 1975 in two material respects, namely:
1.
The misnaming of the parties in the prayer as described at sub para
2.2; and
2.
The non-statement in para 2 of the prayer that only part of the
judgment of the court a
quo
should be set aside.
While
accepting that his notice of appeal was defective Mr Machingambi
for the appellants sought to persuade the court that the above
defects in his notice of appeal were not fatal as they are capable of
being amended.
Rule
7 is however couched in peremptory terms admitting no exception. It
reads:
“7.
Contents of notice of appeal
A
notice instituting an appeal shall
state —
(a)
the tribunal or officer whose decision is appealed against; and
(b)
the date on which the decision was given; and
(c)
the grounds of appeal; and
(d)
the exact nature of the relief sought;
and
(e)
the address of the appellant or his legal representative.” (My
emphasis)
It
is settled law that save in exceptional circumstances, the term
'shall',
denotes the law maker's intention to render the rule mandatory.
This
Court has ruled on numerous occasions that failure to comply with
mandatory provisions of the Rules of court will render an appeal a
nullity.
In
Chikura and Another v Al Sham's Global BVI Limited
SC17/2017 ZIYAMBI JA had occasion to remark that:
“The
Rules are made for the proper running of the Court. Failure to comply
with its mandatory provisions will render an appeal a nullity. See
Matanhire
v BP & Shell Marketing Services (Pvt) Ltd 2004
(2) ZLR 147 (S).”
In
Freezewell
Refrigeration Services (Private) Limited v Bard Real Estate (Private)
Limited
SC61/03, this Court held that a fatally defective appeal cannot be
condoned or amended. It can only be struck off.
The
notice of appeal in this case is therefore fatally defective and a
nullity at law. For that reason it is incurably bad and beyond
repair.
The
authorities are clear and it is now a matter of settled elementary
law that when a proceeding is a nullity every proceeding based on it
is also a nullity as observed by KORSAH JA in Ngani
v Mbanje & Another; Mbanje & Another v Ngani,
1987 (2) ZLR 111 at p115 where the learned judge relying on the dicta
in McFoy
v United Africa Company
Ltd
ALL E R 1169 remarked that:
“If
an act is in law a nullity, it is not only bad, but incurably bad.
There is no need for the order of the Court to set it aside. It is
automatically null and void without more ado. Though it is sometimes
more convenient to do so. And
every proceeding founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay there. It will
collapse”. (My
emphasis).
What
this means in simple terms is that the application to amend the
fatally defective appeal is also in itself fatally defective and a
nullity at law.
For
the foregoing reasons this Court unanimously holds that both the
notice of appeal and the application to amend are fatally defective
warranting being struck off without any further ado.
Mr
Mucheche
for the respondent in the main appeal has asked for costs on the
higher scale. Mr Machingambi
sought to resist costs at the punitive scale arguing that the Chief
Justice was not sitting as a court and therefore he was at liberty to
disregard his caution.
It
is correct that the Chief Justice was not sitting as a court but his
views mattered. The administrative function to scrutinise court
records and engage lawyers before going to court is a noble objective
meant to save time and money by nipping defects in the bud before
they get to court.
While
Mr Machingambi
was not bound by the learned Chief Justice's opinion it was wise to
take heed of his caution unless he was sure of what he was doing. Had
he taken heed, he would not have taken a dead case to court wasting
everyone's time and putting the other party to unnecessary expense.
Those who deliberately defy wise counsel and go on to negligently
cause others patrimonial loss must not cry foul when they are made to
make good the loss. Costs at the punitive scale are therefore
warranted.
It
would in the court's view be unjust for Mr Machingambi's
clients to bear the burden of making good the loss when it is his
questionable conduct that caused it. Legal practitioners must be
warned that this is the sort of conduct that may attract costs de
bonis propriis.
By negating sound advice and incurring unnecessary costs in the
process, Mr Machingambi
was doing his clients a disservice. For that reason the court
considered that it would be patently unjust and unfair to allow him
to benefit from his indecorous conduct.
It
is for the foregoing reasons that the court proceeded to issue the
following order:
“Whereupon,
after
reading papers filed of record,
IT
IS ORDERED THAT:-
1.
The application to amend the Notice of Appeal is dismissed with costs
on the higher scale.
2.
The Applicant's Counsel Mr. G Machingambi is barred from charging
fees to his clients for the application to amend the defective notice
of appeal.
3.
The Cross-appeal is to be heard.”
Turning
to the cross-appeal, the appellant is appealing against the
reinstatement of the respondent, Emmerson Pamire to his former
employment.
The
main appeal was dismissed with costs at the legal practitioner client
scale leaving the concerned parties to argue the cross appeal.
I
now proceed to consider the cross appeal.
The
facts giving rise to the cross appeal are by and large common cause.
The undisputed facts are that the disciplinary authority convicted
the respondent of wilful disobedience to a lawful order to sign
declaration of secrecy forms and ordered his dismissal from
employment. He appealed to the arbitrator who upheld the conviction
but reduced the penalty of dismissal to one of final written warning.
The arbitrator then ordered his reinstatement without any loss of
salary or benefits. In the alternative the court a
quo
ordered damages to be assessed in the event that reinstatement was no
longer possible.
The
appellant appealed to the court a
quo
against the order to reinstate the respondent. The respondent did not
however, cross appeal against the arbitrator's verdict upholding
the disciplinary authority's verdict of guilty.
The
respondent's failure to cross appeal against conviction can only
mean that he accepted his guilt as charged. All he was challenging in
the court a
quo
was the severity of punishment and not his conviction. His plea in
the court a
quo
was one for mercy rather than a denial of misconduct as alleged.
As
none of the parties questioned the correctness of the guilty verdict
and in the absence of a cross-appeal, the appeal in the court a
quo
fell to be determined on the basis of the issues raised by the
appellant in its grounds of appeal which were laid down before the
court as follows:
“1.
The arbitrator erred on a question of law by substituting the
employer's discretion to impose a dismissal penalty.
2.
The arbitrator erred on a question of law by not realising that the
respondent(s') misconduct went to the root of their employment
contract(s) thereby justifying a dismissal penalty.
3.
The arbitrator grossly erred and misdirected himself that she had no
jurisdiction on the second count against the respondents as per
section 4(2)b of the Arbitration Act.
4.
The arbitrator grossly erred and misdirected herself at law by
failing to find that the appeal to the internal appeals officer was
filed out of time.”
From
the above grounds of appeal it is self-evident that the question of
liability was not one of the issues to be determined by the court a
quo
as that issue had already been conclusively determined by the lower
adjudicating authorities. It was therefore remiss of the court a
quo
to determine an issue that was not before it when it held at p3 para
5 of its cyclostyled judgment that:
“5.
All respondents were not guilty of the charge related to the secrecy
document.”
By
framing and determining its own issue not raised by the parties, the
court a
quo
erred and strayed into the wilderness of illegality.
The
respondent's failure to challenge the question of liability amounts
to an admission of guilt.
It
was therefore grossly irrational for the court a
quo
to find the respondent not guilty as charged in circumstances where
he was virtually pleading guilty to the charge.
It
being common cause that the respondent committed a dismissible act of
misconduct, it was within the employer's discretion to terminate
his employment contract.
Following
the exercise of that discretion there was no proper or compelling
reason advanced as to why the court a
quo
or anyone else for that matter should interfere with the exercise of
that discretion.
In
the absence of any cogent reason for interfering with the employer's
discretion, the respondent's fate was sealed.
The
words of ZIYAMBI JA in Mashonaland
Turf
Club
v Mutangadura
2012 (1) ZLR 183 (S) are worth recounting where she says:
“In
the exercise of their powers in terms of section 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 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 misconduct which goes to the root of the contract of
employment.”
It
is an implied term of every employee's contract of employment not
to make unauthorised disclosure of his employer's secrets. The
refusal by the respondent in the cross appeal to sign the declaration
of secrecy was therefore, a fundamental breach of his implied term of
employment in this respect.
An
employer cannot be blamed for offloading an employee who refuses to
be bound not to disclose his trade secrets. The need for
confidentiality in an employer/employee relationship cannot be over
emphasised. For that reason it cannot be said by any stretch of the
imagination that the appellant in the cross-appeal acted irrationally
or unreasonably when it terminated the contract for wilful refusal to
sign the declaration of secrecy. No sane employer would be
comfortable employing an employee whom he cannot trust to keep his
secrets.
In
the result it is ordered that:
1.
The cross appeal is allowed with costs.
2.
The judgment of the court a
quo
is partially quashed to the extent that it set aside respondent's
conviction on the charge of wilful disobedience of a lawful order and
consequently paragraph (4) of the operative part of that judgment is
set aside and substituted as follows:-
“The
appeal is allowed with costs, the arbitral award is set aside in
respect of the penalty of a final written warning imposed upon the
respondents and consequently the respondents' dismissal from
employment is confirmed.”
GWAUNZA
JA: I
agree
UCHENA
JA: I
agree
Matsikidze
and Mucheche Commercial and Labour Law
Chambers,
appellant's
legal practitioners
G.
Machingambi, respondent's
legal practitioners