This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).The background facts are as follows:Murawo was employed by the GMB as a Safety, Health ...
This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).
The background facts are as follows:
Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the 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....,.
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.
