This is an appeal against the decision of the Labour Court setting aside the suspension and dismissal from employment of the respondent by the appellant and re-instating the respondent to his former position without loss of salary and benefits.

This is an appeal against the judgment of the Labour Court in which it upheld an award by an arbitrator dismissing the appellant's appeal. The arbitrator substituted a penalty of a final warning in place of an order of dismissal made by the appellant.

It is common cause that the respondent, a managerial employee employed by the appellant for 20 years, participated as spokesperson in, and facilitated, an unlawful industrial action by the employees of the appellant. Following a hearing, the respondent was found guilty of two acts of misconduct, namely, conduct inconsistent with the express or implied terms of his contract and disobedience to a lawful order as a result of which he was dismissed from employment.

The arbitrator to whom the matter was referred for compulsory arbitration found that, in the process of the unlawful industrial action, the respondent “openly taunted members of management and challenged their authority. He openly called for the dismissal of six managers and brought about chaos and mayhem at the appellant's business premises on 3 and 4 December 2008. He held a very senior position as branch manager and he openly led and associated himself with his subordinates in an act of disobedience to his superiors.” He found that the appellant could not be faulted in finding that the respondent's conduct warranted his dismissal from employment and that the two 'offences' of which the respondent was found guilty, and in respect of which he was dismissed by the appellant, went to the “very basis” of his contract of employment with the respondent.

He found the appellant's decision to dismiss the respondent to be 'unassailable'.

Notwithstanding the above findings, the arbitrator went on to find that the dismissal was unfair in the circumstances principally because only the respondent, of all the employees who participated in the industrial action, had been singled out for disciplinary action. He found to be mitigatory the fact that the unlawful industrial action consisted of a peaceful sit-in which lasted only 2 and a half hours; that the workers had genuine grievances; and that the record of service of the respondent had been accorded little weight. He therefore set aside the penalty of the dismissal and imposed in its place a final warning.

The court a quo agreed with the arbitrator and upheld his award. It found that in terms of section 12B(4) of the Labour Act, the arbitrator was correct in setting aside the penalty of dismissal imposed by the appellant. In addition, the court a quo found, as mitigating, the submission that the respondent had acted both in a personal and representative capacity and that he was leading workers who “needed little persuasion.”

The gravamen of the appeal is that the Labour Court erred in upholding the manner in which the arbitrator exercised his discretion in terms of section 12B(4) of the Labour Act and that the decision of the court a quo ignored the employer's right to dismiss an employee found guilty of an act of misconduct which goes to the root of the employment contract….,.

Having considered submissions of both counsel, we are of the view that Jiah & Ors v Public Service Commission & Ors 1999 (1) ZLR 17 to which we were referred by the respondent is not applicable to the circumstances of this case. The record clearly shows, and the arbitrator found, that the respondent committed serious acts of misconduct which went to the root of his contract of employment. The law is clear that in a situation such as this the employer is entitled to dismiss the employee. The fact that the respondent was singled out for disciplinary action becomes irrelevant once it is accepted that his misconduct went to the root of his employment contract.

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 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.

We are therefore of the unanimous view that both the Labour Court and the arbitrator erred in substituting their discretion for that of the employer in setting aside the dismissal.

In view of the decision we have reached it is not necessary to consider the alternative relief sought by the appellant.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed with costs.

(2) The order of the court a quo is set aside and substituted as follows:

(a) The appeal is allowed with no order as to costs.

(b) The award of the arbitrator is set aside and the dismissal of the respondent is hereby confirmed.

This is an appeal from a judgment of the Labour Court upholding a decision of an arbitrator setting aside the dismissal of the appellant's employees who had been found guilty of an act or conduct inconsistent with the fulfilment of express or implied conditions of contracts of employment in that they had taken part in an unlawful collective job action.

The appellant's employees were members of the respondent. They engaged in an unlawful collective job action from 4 to 23 October 2006. It is common cause that at the time the employees engaged in the collective job action, on 4 October 2006, they had not given the fourteen days written notice of their intent to resort to such action on that day. They had not satisfied the other matters required under section 104(2) of the Labour Relations Act [Chapter 28:01] (“the Act”).

After the unlawful collective job action ended, the appellant commenced disciplinary proceedings against each employee who had taken part in the collective job action.

On 8 December 2006, the employees were individually charged with conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in the unlawful collective job action. The allegation was that the employees had contravened section 12B(2)(b)(1) of the Labour Relations Act [Chapter 28:01].

The disciplinary hearings were conducted in terms of section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 (“the Regulations”).

The employees were found guilty of the misconduct charge and dismissed from employment.

The respondent took up the case of the dismissal of the employees with a Labour Officer on the ground that the dismissal constituted an unfair labour practice.

The contention was that the appellant should not have charged the employees individually with conduct they committed collectively as a group. The argument was that disciplinary proceedings ought to have been commenced against the employees as a group on the ground that they took part in an unlawful collective job action in terms of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The appellant accepted that the employees had taken part in an unlawful collective job action. It denied the accusation that, in instituting disciplinary proceedings against each employee on the charge that he had committed an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment in that he had taken part in an unlawful collective job action, it committed an unfair labour practice.

The argument was that there was no provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee for having taken part in an unlawful collective job action can only do so in disciplinary proceedings commenced against the employees who took part in such action as a group.

The Labour Officer failed to conciliate the dispute and referred the case for arbitration in terms of section 93(5) of the Labour Relations Act [Chapter 28:01].

The arbitrator heard the case and determined that the appellant ought to have proceeded in terms of sections 106 and 107 of the Labour Relations Act and charged the employees as a group with having taken part in an unlawful collective job action. The dismissal of the employees was adjudged an unfair labour practice. It was set aside and an order of reinstatement or payment of damages in lieu thereof made.

On appeal to the Labour Court, the decision of the arbitrator was upheld hence the appeal to this Court.

The question that falls for determination is whether there is a provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee who took part in an unlawful collective job action must institute disciplinary proceedings against all the employees involved in such action and charge them with having taken part in an unlawful collective job action.

The contention that the appellant ought to have charged the employees, as a group, with having taken part in an unlawful collective job action and proceeded in terms of the provisions of Part XIII of the Labour Relations Act was based on the interpretation of section 8 of Category 4 of the appellant's employment Code (“the Code”).

A list of what is considered to be serious acts of misconduct is given under Category 4 of the Code. In section 8 the following is stated:

“8. Instigating and/or taking part in an unlawful job action – to be handled in terms of Labour Relations Act [Cap. 28:01].”

There is, of course, no specific reference to Part XIII of the Labour Relations Act in section 8 of Category 4 of the Code.

Even if the appellant had decided to charge the employees with having taken part in an unlawful collective job action there would have been nothing in the provisions of section 8 compelling it to conduct the disciplinary proceedings in terms of the provisions of Part XIII of the Labour Relations Act.

Part XIII of the Labour Relations Act is headed “Collective Job Action”. It contains sections 102 to 112, the provisions of which deal with matters relating to or arising from a collective job action.

The sections said to contain the provisions which the appellant was found to have unlawfully failed to observe are sections 104, 106 and 107.

Section 104(1) gives all employees, workers committees, and trade unions the right to resort to collective job action to resolve disputes of interest. The right is given subject to specific conditions of its exercise prescribed under subsection (2).

A collective job action resorted to without the mandatory requirements for a lawful exercise of the right prescribed under sub-section (2) of section 104 having been strictly satisfied is an unlawful collective job action.

Specific procedures and remedies for the protection of the rights for the parties affected by the unlawful collective job action are provided under sections 106 and 107.

Section 106 provides that when a workers' committee or trade union, for example, “threatens, recommends, encourages, incites, organizes or engages” in an unlawful collective job action, the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective job action, may issue an order calling upon the workers' committee or trade union concerned (“the responsible person”) to appear before the Labour Court to show cause why a Disposal Order should not be made in relation to the unlawful collective job action.

The Show Cause Order must specify the date, time and place at which the responsible person must appear before the Labour Court. The order may direct that pending the issuance of the Disposal Order, the unlawful collective job action concerned be terminated, postponed, or suspended.

Section 107 provides that on the return day, the Labour Court must inquire into the matter, and may, after the inquiry, issue a Disposal Order directing that the unlawful collective job action be terminated, postponed, or suspended….,.

Section 107(3) provides that the Disposal Order may provide for the employer, in his discretion, to dismiss, summarily, specified employees or categories of employees engaged in the unlawful collective job action or provide for the dismissal of specified employees or categories of employees engaged in the unlawful collective job action.

The inquiry the Labour Court is required to carry out before issuing a Disposal Order, as well as the right it may give to the employer to dismiss employees found to be threatening or engaging in an unlawful collective job action, implies that the Show Cause Order may take the place of a charge of misconduct in disciplinary proceedings and the inquiry the hearing thereof.

The disciplinary action which the Labour Court may order or may authorize the employer to take against the employees is not the primary object of the provisions of sections 106 and 107 of the Labour Relations Act. The primary purpose of the provisions of sections 106 and 107 is to provide procedures and remedies for the disposal of an unlawful collective job action.

The right given to an employer, under section 107(3) of the Labour Relations Act, to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action, is dependent upon the discretionary remedies. It is up to the Labour Court to decide whether to provide, under the Disposal Order, for the dismissal of specified employees or categories of employees. It is also up to the Labour Court to decide whether to give the employer, under the Disposal Order, the right to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action.

The right to dismiss is dependent upon the exercise of discretion by the Labour Court.

Without the initiation of the procedure leading to the issuance of the Disposal Order, and the exercise of discretion by the Labour Court in his favour, an employer would have no right to dismiss employees who threaten or engage in an unlawful collective job action in terms of any of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The procedure and remedies under sections 106 and 107 of the Labour Relations Act, are, in my view, applicable to the disposal of an unlawful collective job action being threatened or engaged in at the time the Show Cause Order is made.

There is nothing in the language of the relevant provisions of the Labour Relations Act to show that the intention of the legislature is that the procedure and remedies prescribed thereunder be applied to an unlawful collective job action which has ended on its own without a Disposal Order having been issued in respect of it.

One can hardly think of such action which ceased on its own being made a subject of a Show Cause Order or Disposal Order directing that it be terminated, postponed, or suspended.

The unlawful collective job action engaged in by the appellant's employees ended on 23 October 2006 - without a Show Cause Order having been issued in terms of section 106 of the Labour Relations Act.

The disciplinary proceedings against the employees commenced on 8 December.

The provisions of sections 106 and 107 of the Labour Relations Act were clearly not applicable to the determination of the appellant's right to dismiss the employees concerned.

Where then did the appellant derive the right to dismiss the employees?

The appellant did not charge the employees with having taken part in the unlawful collective job action. It charged each employee with an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in an unlawful collective job action.

The charge was in terms of section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 which recognize the common law right of an employer to charge an employee with such conduct.

Section 12B of the Labour Relations Act provides that:

“(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) If, in the absence of an employment code, the employer fails to show that when dismissing the employee he had good cause to believe that the employee was guilty of –

(i) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(ii)…,.”

Subsection (3) of section 12B of the Labour Relations Act [Chapter 28:01] makes provision for cases of constructive dismissal.

Section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 provides that:

“(2) For the avoidance of doubt, it is declared that no employer shall summarily or otherwise terminate a contract of employment with an employee unless –

(a) The termination is in terms of an employment code which is registered in terms of section 101 of the Act; or

(b)…,.; or

(c)…,; or

(d) The employee is dismissed on any of the grounds specified in para (b) of section 12B of the Act.”

The employment Code did not have a section prohibiting, as an act of misconduct, an act or conduct inconsistent with the fulfilment of the express or implied conditions of the employee's contract of employment.

For an employer to have good cause to believe that an employee is guilty of the act or conduct specified in section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] he has to charge the employee with having committed that act or conduct, give him an opportunity to answer the charge, hold a disciplinary hearing, and make a finding of facts on which he believes the employee is guilty as charged.

The contention advanced by counsel for the respondent was not that participating in an unlawful collective job action was wrongly found to be an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of each employee charged with that act of misconduct.

I agree with counsel for the appellant, that, taking part in an unlawful collective job action could not be a valid defence to the charge preferred against each of the employees.

The act of misconduct alleged against each employee in the charge was proved following a full hearing of evidence. At the time the employer dismissed each employee it had good cause to believe that he was guilty of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

The appellant had the right, under section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01], as read with section 2 of the of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003, to dismiss the employees.

Counsel for the appellant relied on the case of Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05.

Net-One, like the appellant, is a successor company to the Posts and Telecommunications Corporation. It was using the same employment Code as the appellant at the time its employees embarked on an unlawful collective job action. The employees in the Net-One case were charged, individually, with having been absent from work for a period of five or more working days without leave or reasonable cause. The employment Code had section 2 of Category 4 which made it an offence for an employee to be absent from work for a period of five or more working days without reasonable cause. In charging the employees, Net-One cited section 12B(2)(b)(v) of the Labour Relations Act. A full disciplinary hearing was conducted, at the end of which each employee was found guilty as charged and dismissed from employment.

It was contended, on appeal, that, in charging the employees under section 12B(2)(b)(v) of the Labour Relations Act, and not section 2 of the Code, Net-One had committed an unfair labour practice.

At p8 of the cyclostyled judgment, CHIDYAUSIKU CJ said that participating in an illegal collective job action could not have been a defence to the charge faced by the employees. He went on to say the following:

“The appellant charged the employees, individually, with absence from work for five consecutive days without reasonable excuse or cause.

I pause to point out that the employees were not charged with taking part in or inciting an unlawful collective job action, a charge that falls squarely under clause 8 of the Code. The employees were charged with absence from work for more than five consecutive days an offence under clause 2 of the Code and section 12B of the Act.

Disciplinary hearings were conducted in respect of each individual employee.

At the conclusion of the disciplinary hearing each of the fifty-six employees was found guilty and dismissed. It was not in dispute that due process was followed in respect of each of the employees. In this regard, the appellant, however, purported to act in terms of section 12B of the Act as read with Statutory Instrument 130/2003.”

The learned Chief Justice held that in citing section 12B(2)(b)(v) of the Labour Relations Act instead of clause 2 of the Code in charging the employees, Net-One was not guilty of unfair labour practice as due process was nonetheless followed in the dismissal of the employees.

The unlawful collective job action in which the employees in Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05 had taken part had ended without a Show Cause Order having been made in terms of section 106 of the Labour Relations Act at the time disciplinary proceedings were commenced against individual employees.

The case supports the contention that the provisions of Part XIII of the Labour Relations Act [Chapter 28:01] do not, in the circumstances, preclude an employer wishing to take disciplinary action against employees who took part in an unlawful collective job action from charging them individually with acts of misconduct connected with or arising from the collective job action.

In this case, the offence of an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment could be established in respect of each employee by proving that he took part in an unlawful collective job action.

There was no similar offence under the employment Code.

As the unlawful collective job action had ended at the time disciplinary proceedings were commenced, the appellant could not have acted in terms of any of the provisions of Part XIII of the Labour Relations Act.

The appellant derived the right to dismiss the employees from the disciplinary proceedings it conducted in terms of section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003.

The appeal succeeds with costs.

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

“The appeal against the decision of the arbitrator succeeds with costs. The decision is set aside.”

This is an appeal against the decision of the Labour Court reversing the dismissal of the respondent from employment for gross negligence.

The respondent (“hereinafter referred to as Mudavanhu”) was employed by the appellant as the head of its clothing factory division. As part of his contract of employment, the respondent undertook to source for external garment making contracts to supplement the workload in the factory, for which he would receive a commission. On 11 July 2006, he was charged with acts of misconduct as follows:

(i) Persistent poor time-keeping;

(ii) Habitual absenteeism without permission;

(iii) Failure to meet required standards of work produced (sic);

(iv) Failing to meet set targets in the production in the factory (sic); and

(v) Unilaterally increasing the number of employees in his division without authority.

Following a disciplinary hearing, the respondent was found guilty on all charges and was dismissed from employment with effect from 16 July 2006.

On 14 July 2008, alleging an unfair dismissal, he filed a grievance with a labour officer, and failing conciliation between the parties, the labour officer referred the matter to compulsory arbitration. The arbitrator upheld the respondent's claim of unfair dismissal and gave an award in his favour. Included in the arbitrator's award were twelve former employees of the appellant. The appellant unsuccessfully appealed to the Labour Court which upheld the award in respect of the Mudavanhu and the other twelve.  

Aggrieved by the dismissal of that appeal, the appellant has noted this appeal.

This is an appeal against the entire judgment of the Labour Court, dated 4 May 2012. The facts of the matter are largely common cause and may be summarised as follows:

The respondent was employed by the appellant as a Stores Foreman. In this capacity, he ordered, for the appellant, white sheet board size 610 by 860mm from Paroan Vista. Paroan Vista, however, supplied the wrong size of sheet board, ie 610 by 810mm, which was received by the respondent. The respondent subsequently used a pen to alter the copy of the Goods Received Voucher (GRV) to reflect the size received. He did not let the Machine Minder know that the board that he was using was of a different size to the one required. The result was that the latter was left to discover the error for himself, a circumstance that led to the matter being drawn to the attention of the respondent's superiors. The appellant, in light of this conduct, took the view that the purpose of the respondent's alteration of the Goods Received Voucher was to conceal his defective work or his inefficiency. He was thereafter charged with contravening clause 18 of S.I.148/2009: Collective Bargaining Agreement for the Printing, Packaging and Newspaper, that is:

“any act or omission inconsistent with the fulfilment of the express or implied conditions of employment.”

The respondent was found guilty by a Disciplinary Officer and dismissed from employment. He appealed to the Chief Executive Officer who upheld the findings of the Disciplinary Officer. He further appealed to the National Employment Council for the industry (NEC) which ruled that the penalty of dismissal was too harsh in the circumstances. It ordered:

(i) Reinstatement of the respondent without loss of salary and benefits;

(ii) That the respondent forfeits one month's salary; and

(iii) That he be served with a final written warning valid for 12 months.

The appellant was aggrieved by this decision and appealed to the Labour Court which dismissed the appeal and made the additional order that if re-instatement was no longer an option, the respondent be paid damages in lieu of reinstatement.

This did not go down well with the appellant who has filed the present appeal.

It is common cause that the respondent does not deny the charge. He only takes issue with what he perceives to be a harsh penalty under the circumstances. Both the National Employment Council and the court a quo agreed with him.

The respondents defence, essentially, is premised on the following assertions:

1. The order form that he filled in and issued to the supplier reflected the correct dimensions of the required white sheet board (i.e. 610 by 860mm);

2. The supplier, however, delivered the wrong size, i.e. 610 by 810mm, which was smaller than what was ordered;

3. Upon noticing the anomaly, the respondent made a report to that effect to his superiors;

4. His actions in thereafter altering the dimensions of the sheet board on the Goods Received Voucher so that they accorded with what was actually delivered, were motivated by the need to clarify the real position for accounting purposes. This was because, without such alteration, the employer would have paid more when it was entitled to pay less for the smaller sized paper which was actually delivered;

5. In other words, his motive was to protect the appellant's financial  interests;

6. He had no desire to conceal any wrongdoing or incompetence, and, in any case, the appellant suffered no financial prejudice as a result of the impugned conduct; and

7. Finally, given these circumstances, the conduct in question did not strike at the root of the employment contract. Even if it did, the appellant was unreasonable and misdirected itself in the exercise of its discretion on punishment.

The appellant challenges these assertions and insists that the respondent altered the document in question without lawful authority and only did so in order to conceal poor work performance. This constituted a breach of trust and confidence, and, more importantly, the appellant further contends, in so altering the document in question, the respondent flagrantly violated the relevant provisions of its Standing Operating Procedures which read as follows:

“5.2 Receive supplied goods and check against P.O.R.

5.2.1 Check if Order number and supplier correspond with P.O.R.

5.2.2 Check if quantity is correct and to specific requirements with P.O.R.

5.2.3 Check quality and measurements before signing delivery documents from supplied.

5.3 If goods are not to standard of satisfaction, raise G.R.N. and return to supplier immediately, indicate areas of concern clearly for supplier to understand reason for rejection.”…,.

Instead of following the laid down procedure, the appellant charges that the respondent received a sub-standard product compared to what was ordered, without any “checks or measurements”.

Further, that as a result of this action, additional paper had to be requested to fulfil the order, a circumstance that put the appellant “at risk” of conduct not in conformity with the requisite I.S.O. requirements.

The appellant did not elaborate on this assertion.

The appellant further charges that, alternatively, the respondent should have obtained non-conformity authority from his superiors before accepting the wrong order.

The grounds of appeal raise two issues:

(1) Whether or not the appellant exercised its discretion reasonably in deciding that the misconduct of the respondent justified his dismissal; and

(2) Whether the court a quo was correct in interfering with an employer's discretion to dismiss.

In contending that the National Employment Council and the court a quo were correct in their finding that the penalty of dismissal was not warranted by the circumstances of this case, the respondent contends as follows:

“The principle is well established in our law that the court will not interfere with the discretion of an employer to dismiss an employee found guilty of misconduct provided that the alleged misconduct goes to the root of the employment contract unless there has been misdirection or unreasonableness on the part of the employer.”

The respondent went on to cite the following dictum to support this contention, Mashonaland Turf Club v George Mutangadura SC05-12:

“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 question that then arises, on the basis of the law and authorities on this matter, is whether the appellant 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.”

Counsel for the appellant contends that in casu, since neither the National Employment Council nor the court a quo made a finding on the existence or otherwise of a misdirection or unreasonableness on the part of the appellant in dismissing the respondent, both were “wrong” in interfering with it.

While there may be merit in this contention, I am not persuaded that the decision reached by the National Employment Council, and confirmed by the Labour Court, was, on this basis, wrong. I am further not satisfied that the failure by these two tribunals to articulate a finding that the appellant misdirected itself in imposing the penalty of dismissal, necessarily erodes the validity of their interference with the penalty. The Labour Court found no reason to interfere with the National Employment Council's finding to the effect, inter alia, that, in the circumstances of the case, dismissal was too harsh; that the appellant's failure to write a non-conformity report was 'correctable without much prejudice' and that in any operation there should be a meaningful/reasonable margin of error. In my view, a conclusion based on these facts - even if not articulated - that the appellant unreasonably exercised its discretion on penalty, would be justified. To further justify such a finding would be the fact that the appellant does not allege that it suffered any financial prejudice as a result of the misconduct in question. To the contrary, and as indicated, there is a suggestion by the respondent that through such conduct, he had in fact spared the appellant possible financial prejudice.

The appellant made reference to what seemed to be potential prejudice when it stated that requesting, as it did, additional paper to fulfil the order had put it 'at risk' of acting contrary to the requisite ISO requirements. This statement was, however, not elaborated upon.

The court is thus not able to assess the measure of such potential prejudice.

Finally, I find that the misconduct in question, having been committed for the reasons given by the respondent, and not having caused the appellant any real prejudice, financial or otherwise, appropriately fits into what was described in the case of Vide Clouston & Co Ltd v Carry…, cited with approval in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR S…, as:

“misconduct (which), 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 short, while the respondent admits to having acted contrary to the express or implied conditions of his employment, I find myself in agreement with the conclusion of the National Employment Council and the court a quo that the misconduct was not one that, on any reasonable basis, merited the harsh penalty of dismissal. In view of this I find that the appellant acted unreasonably in dismissing the respondent from employment, and, therefore, misdirected itself.

I find, in the final analysis, that the appeal has no merit and ought to be dismissed. However, in the interests of completeness, the judgment of the court a quo will be amended to include the option of recourse to that court, in the event that the parties fail to reach agreement on the quantum of damages, if any, to be paid to the respondent.

Accordingly, it is ordered as follows:

1. The appeal be and is hereby dismissed with costs.

2. The judgment of the court a quo is amended to include the following:

“Should the parties fail to reach agreement on the damages, if any, to be paid to the respondent, they are granted leave to approach this court for quantification of such damages.”

The appellant, (hereinafter referred to as “the Bank”), is a registered commercial bank. It has branches throughout the country. Until 7 September 2004, the respondent was employed by it as a Branch Manager at its Jason Moyo Branch in Bulawayo. On 22 June 2004, the Bank preferred the following charges of misconduct against the respondent:

(i) Failure to comply with standing instructions;

(ii) Gross incompetence or inefficiency;

(iii) Habitual and substantial neglect of his duties; and

(iv) Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract as per the Labour Relations Act [Chapter 28:01] as amended by Act No.17/02 as read with S.I.130 of 2003.

On 20 August 2004, a disciplinary hearing was conducted by the Bank in respect of these charges and this resulted in the respondent being found guilty on all charges. A penalty of dismissal was imposed.

The facts upon which the charges were premised are the following.

The respondent, as the Branch Manager for the Jason Moyo Branch, had a lending limit of Z$10 million. On 2 June 2004, the respondent authorized the encashment of a cheque in the sum of Z$73 million against an account which was already overdrawn in the sum of Z$10,690,875=. In respect of the second charge, the facts on which the respondent was convicted were that his branch was amongst the highest in terms of anomalies relating to the failure to adhere to data capture. The branch had the highest number of overdrawn accounts, greatest exposure to risk in relation to client indebtedness, as well as the highest number of unclassified savings accounts. In relation to the third charge, the respondent was alleged to have disobeyed instructions to 'un-pay' cheques against certain accounts, which was evidence of habitual and substantial neglect of his duties.

Overall, he was charged with an act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.

The respondent was aggrieved by the outcome and appealed to a labour officer, who, in turn, on 9 December 2004, referred the matter to compulsory arbitration on an alleged unfair dismissal.

On 14 February 2005, the arbitrator issued an award. She confirmed the finding of guilt on the charges of misconduct but set aside the penalty of dismissal imposed by the Bank. The arbitrator also ordered the Bank to reinstate the respondent, serve him with a final written warning and transfer him to a different branch. The Bank appealed to the Labour Court which dismissed the appeal with costs and upheld the arbitral award.

This appeal is against the dismissal of that appeal by the Labour Court.

The appeal is premised on essentially two grounds;

(i) Firstly, that the court, in upholding the arbitrator's award against a finding of misdirection on the part of the arbitrator, had also misdirected itself; and

(ii) Secondly, that the court a quo had misdirected itself in its finding that the severe written warning operating against the respondent should not be taken into account in the assessment of a penalty to be imposed upon him.

The basis for the arbitrator's decision to set aside the dismissal of the respondent by the Bank is implicit in the following excerpt from the arbitral award:

“Be that as it may, I find it very difficult to isolate Mbalaka and dismiss him after the Bank officially presented a table of managers from branches nationwide who flouted the same rules as Mbalaka did. Mbalaka's percentages of flaws could have been higher but the fact remains the same, more than one manager committed the same offence. Singling out Mbalaka for dismissal irrespective of his personal record in the file would be tantamount to victimisation unless there was a Code of Conduct which tabulated degrees of blameworthiness on each offence. The Labour Amendment Act 17 of 2002 read together with S.I.130 of 2003 do not express different categories of punishment based on the offences.

As long as an offence is committed it deserves the same concern but the Act gives room to avoid dismissal by looking at mitigating factors; section 12B(4).”(sic)

It is also evident from the arbitral award that the arbitrator neither considered nor made a determination on the exercise, by the Bank, of its common law right to dismiss an employee where an act of misconduct is regarded by an employer as going to the root of the employment contract. There was no finding on the part of the arbitrator that the employer, in imposing the penalty of dismissal, had exercised its discretion capriciously nor that it had acted upon a wrong or incorrect principle of the law.

The Labour Court dismissed the appeal despite a finding which it expressed in these terms:

“I find that the arbitrator misdirected herself in only two aspects. Firstly, in finding that because Mr Mbalaka was not the only one who committed acts of misconduct, to charge him alone was tantamount to victimization. This was a misdirection that goes to the root of the case because it influenced the arbitrator in coming up with the award  she made and in that manner, that decision was partly based on a wrong premise.”…,.

The Labour Court also relied on the dicta in Lancashire Steel (Private) Limited v Mandevana & Ors SC29-95, wherein the court stated:

“Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty, it is not in law relevant that others may be guilty.”…,.

It is beyond doubt that the Labour Court was alive to the discretion that is reposed in the employer in the application of this principle in disciplining an employee for an alleged misconduct as appears in the following statement by the court a quo:

“This does put to rest the argument about perceived selective punishment and victimisation. The respondent should face the consequences of his actions and cannot be allowed to hedge behind others.”

In our view, this finding by the Labour Court was eminently sound, both on the facts and on the law, and yet, the Labour Court then went on to contradict itself in an apparent abandonment of this finding by stating as follows:

“The arbitrator did support the argument in a way. She stated that Mbalaka's co- workers, who were probably on the same black list with him, exited with hefty packages. By parity of reasoning, it defies logic to dismiss him. I agree with her. He has faced the music as it were, gone through a gruelling hearing, borne the embarrassment that goes with it, and a dismissal where others are let go with hefty packages defies all logic and common sense, since disparity in sentences is discouraged. The misdirection is thus not so gross as to warrant interference by this court.”…,.

Given the finding by the court a quo that the arbitrator had misdirected herself in ruling that the charges of misconduct preferred against the respondent amounted to selective punishment and victimization, and that the misdirection went to the root of the case, it is the finding of this Court that the Labour Court, in turn, grossly misdirected itself in then holding that the misdirection by the arbitrator was not so gross as to warrant interference….,.

In the light of the misdirection by the Labour Court…, we find that there is merit in the appeal and it ought to succeed.

Accordingly, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the Labour Court is hereby set aside and is substituted with the following:

(a) The appeal is allowed with costs.

(b) The arbitral award by Mrs F Muzofa, of 14 February 2005, be and is hereby set aside.

(c) The finding of guilt by the Hearing Officer, and the resultant dismissal of the respondent from employment, be and is hereby upheld.

I have already agreed that there was no retrenchment on 6 March 2014. A wish existed, but the parties did not agree.

I am unable to distinguish this case from Hamilton Fortunate Gomba v Associated Mine Workers Union HH118-05 where PATEL J…, said:-

“At common law, either party to an indefinite contract of employment is entitled to terminate it by giving the requisite period of notice to the other party. Under our law, however, the employer's right to terminate upon notice is effectively hamstrung by section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 2003. In the absence of the employee's agreement or consent, the employer is confined to two possible avenues for terminating the employment contract. The first is to suspend then the employee on the grounds of misconduct in terms of section 3 of the above-cited Regulations, as read with section 12B of the Labour Act. The second is to follow the route of retrenchment as prescribed by section 12C of the Labour Act, as read with the Labour Relations (Retrenchment) Regulations, 2003 (S.I.186/2003).

In the instant case, the respondent has followed neither of the above avenues in purporting to terminate the applicant's contract of employment. Accordingly, it must be found that the applicant's employment with the respondent has not yet been lawfully terminated in accordance with the Labour Act and its subordinate Regulations.” 

In casu, the respondent chose the retrenchment route as provided for under section 12C of the Labour Act [Chapter 28:01] as read together with S.I.186 of 2003. The applicant was advised of that route on 6 March 2014 whereupon he requested that details of the proposed retrenchment be reduced to writing.

Despite the stance taken by the respondent that the effective date of his termination was 6 March 2014, subsequent correspondence between the parties, after the applicant had exercised his mind on the respondent's letter of 6 March 2014, confirms that the thrust was on agreeing on the retrenchment package. I take the view that, if say the parties had reached agreement on the retrenchment package on 6 March 2014 all what would have remained was to register the package in terms of the law. In casu, that was never the position and to date the respondent has not abandoned the retrenchment route. Until that journey is completed, through the finalisation of a retrenchment package, the applicant remains on the respondent's payroll and hence the need to compel the respondent to continue paying him pending the finalisation of the retrenchment package. I equate the applicant's position to an employee who is on forced leave on full salary and benefits….,.

To the extent that the applicant has established an illegality on the part of the respondent, I find it not necessary to delve into the other numerous matters raised herein. The legal position is that the applicant has not yet been retrenched and is therefore entitled to his salary and benefits. The effective date of termination of employment is the date the parties, either on their own or through the Retrenchment Board or Minister, will reach agreement on the retrenchment package. That date cannot be 6 March 2014. All the applicant agreed to was that his employment was being terminated through a process called retrenchment. That process has not been concluded.

The relevant paragraphs of the minutes of the meeting of 6 March 2014 state that:-

“Purpose of the Meeting

§ SJ then further informed CM that the company was now placing him on retrenchment after failing to secure as suitable placement elsewhere in the Old Mutual world-wide group and was offering him the standard Old Mutual retrenchment package. SJ requested CM to ask any questions and seek clarification on anything that had been said.

§ CM said that the Acting GCEO had given him a brief outline of the Risk Role restructure but had not gone into detail on the new structure of the Risk department.

§ CM responded on a “without prejudice basis” and stated that, in view of the fact that he holds an employment contract, a point not disputed by anyone, the employer should write formally to notify him of the matters discussed in the meeting.

§ LG agreed to provide CM with this letter on the same day. He explained that the retrenchment Regulations require a discussion to be conducted and the reasons for retrenchment explained, which is what had been done.

§ CM was also advised that the retrenchment would be with immediate effect, and, as a result, he was required to hand over to the Managing Director, items listed on the attached copy of a letter handed to him during the meeting.”

(SJ above stands for S.J Hammond representing the respondent and CM stands for the applicant).

It is important to note from the above minutes that the respondent was alive to the fact that “retrenchment Regulations require a discussion.” The position is that the discussion was never concluded as the respondent had wished and hence referral to the Retrenchment Board. Accordingly, any conclusion to the effect that the retrenchment was with immediate effect on 6 March 2014 is totally misleading and incorrect as borne out by the facts of this matter.

It is, in my view, untenable that the court can allow the applicant to suffer in the face of an illegality, and, moreso, when the balance of convenience is squarely in his favour. One wonders what prejudice the respondent is being exposed to when there is still a retrenchment package to be concluded. If continued payment of salary and benefits is proved to have not been merited, something extremely remote, then recovery can be made from the retrenchment package.

I have no doubt that the respondent is fully aware of the provisions of the law regarding retrenchment. I therefore do not understand its argument about terminating employment and then discussing a retrenchment package. In our law, as already indicated, retrenchment is one of the ways of terminating a contract of employment. The respondent, in my view, deliberately sticks to termination on 6 March 2014, yet it accepts that discussions on retrenchment were never concluded. To that end I see no reason why costs should not be awarded on a higher scale.

As in Hamilton Fortunate Gomba v Associated Mine Workers Union HH118-05…, the circumstances of this case demand that I give a final order. I accordingly order as follows:-

1. The refusal by the respondent to continue paying the applicant his full salary and benefits pending finalisation of the retrenchment package by the Retrenchment Board be and is hereby declared illegal;

2. Pending the finalisation of the Retrenchment package by the Retrenchment Board, the respondent be and is hereby ordered to continue paying the applicant his full monthly salary and benefits; and

The appellant contended that he never received a letter of dismissal from the employer. 

He said he was entitled to damages in respect of lost earnings computed by using the salary scale of an employee in his Grade as at 30 October 2010. He used the same salary to calculate his leave pay for 12 years that he said he has been on suspension. He also used the same measure to calculate the bonus he claimed he was entitled to during the period of 12 years. The claim for general damages was based on the alleged prejudice that he claimed he suffered as a result of failing to educate his children.

The court a quo correctly dismissed the claim by the appellant on the ground that it was based on a deliberate misinterpretation of the provisions of section 13 of the Labour Act [Chapter 28:01]. The learned judge…, said:

“The first ground calls for an interpretation of the order of the Senior Labour Officer. The plaintiff averred that the second defendant was obliged to write to him informing him that he stood dismissed from the date of suspension and thereafter pay him his terminal benefits within two weeks of the receipt of the order. He contended that the failure to write the letter of dismissal means that he remained an employee. Mr Chiurayi contended that he was dismissedby the Senior Labour Officer from the date of suspension.”

Section 2(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, S.I.371 of 1985 in question read:

“No employer shall summarily or otherwise terminate a contract of employment with an employee unless -

(a) He has obtained the prior written approval of the Minister to do so; or

b)…, not relevant.

c)…, not relevant.

d) The contract of employment is terminated in terms of section 3.”

Section 3 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, S.I.371 of 1985 reads:

“3(1) Where an employer has good cause to believe that an employee is guilty of -

a) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract.

b)…, (i) not relevant.

The employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

Section 2(1) and 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, S.I.371 of 1985 replaced the common law right of an employer to summarily dismiss an employee. Instead, the authority to dismiss an employee was given to the Minister or his delegatee.

The second defendant complied with the requirements of this section, as demonstrated by the letter of 6 January 1998. In that letter, the second defendant applied for an order terminating the plaintiff's employment. The senior labour officer granted an order terminating the plaintiff's employment with effect from the date of his suspension. The date of suspension was 5 January 1998. 

It was not necessary for the second defendant to formally write to the plaintiff that it was terminating his employment from the date of suspension.

The appellants have contended that the proceedings under which they were found guilty of misconduct were null and void by virtue of the fact that the respondent did not proceed under an employment code as required under the law.

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.

WHETHER THE RESPONDENT TERMINATED THE CONTRACT OF EMPLOYMENT

The appellant maintained that the respondent did not terminate the contract of employment in the circumstances set out in section 12B of the Labour Act [Chapter 28:01]. It was submitted that the respondent did not immediately allege constructive dismissal and the consequent termination of the employer/employee relationship and that he was quite content, one and a half months after the transfer letter, to seek particulars for the purposes of defending himself in misconduct proceedings scheduled for 15 January 2013.

His conduct pointed to him being an employee and not to one who had been constructively dismissed.

It has been held that where an employer commits a breach which goes to the root of the employment contract, the employee is entitled to treat himself as discharged from further performance. He is constructively dismissed. However, he must act promptly.

In Astra Holdings (Private) Limited v Peggy Kahwa SC97-04, this court stated the principles governing constructive dismissal as follows:

“Constructive dismissal is claimable where an employer has committed conduct which, as a breach, goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment. In Western Excavating v Sharp [1978] 1 ALL ER 713, LORD DENNING at 717 d - f said:

'If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled, in those circumstances, to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must, in either case, be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.'”…,.

The respondent in this case availed himself of neither option.

He did not leave at the instant nor did he give notice and say he would be leaving at the end of the notice. He continued to attend at work and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right up to the end of January 2013.

As the appellant submitted, his was not the conduct of one constructively dismissed.

It follows that section 12B(3) of the Labour Act [Chapter 28:01] was not shown to apply to the respondent's situation. That being the case, he was properly dismissed for the misconduct of absenteeism following the disciplinary proceedings held by the appellant in default of his appearance.

The appeal must therefore succeed. In the result, the following order is issued:

1. The appeal is allowed with costs.

2. The Judgment of the Labour Court is set aside and substituted with the following:

“1. The appeal is allowed with costs.

This is an appeal against the whole judgment of the Labour Court handed down at Harare on 30 August 2013.

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.

The appellant was employed by the respondent as the Chief Assayer from 1996. It was accepted that as Chief Assayer his duty was to keep bullion gold in a safe in respect of which he was the sole custodian of the key. It is common cause that throughout the period of his employment there was a missing spare key to the safe; however, the appellant had done nothing to correct that position.

On or about 10 May 2012, the safe was opened by the appellant in the presence of two of the respondent's officers who wished to collect certain samples from the safe. It was then discovered that nine (9) bars of gold bullion were missing from the safe. Despite this discovery, the appellant did not report the matter to his employers. On 11 May 2012, he attended a Head of Department meeting with his superiors but failed to report the matter - even when asked if he had anything to report.

After leaving the meeting, the appellant was called back and asked about the missing bullion samples.  Only then did he confirm that they were missing and expressed the view that they were probably stolen.

The appellant was asked to write a report and was subsequently charged with two counts of misconduct.  The first charge alleged conduct inconsistent with the fulfilment of the express or implied conditions of his employment. The second alleged substantial neglect of his duties. He was convicted on both counts and dismissed.

The matter eventually ended up before an arbitrator who found the dismissal to be substantively fair. Aggrieved by this decision the appellant appealed, again unsuccessfully, to the Labour Court.

In his appeal before us, the appellant raised two issues;

(i) Firstly, the finding that the appellant was guilty on the first charge was the result of a factual misdirection by the arbitrator and the Labour Court was wrong to uphold it.

(ii) Secondly, the charge of substantial neglect of duties was improper as the conduct prescribed by the Statutory Instrument is one of habitual and substantial neglect. Not only was the charge improper but habitual neglect of duties had not been proved.

Both charges warrant the penalty of dismissal.

Regarding the first charge, it is plain that the appellant, by failing to secure the gold samples, was in breach of a fundamental term of his contract of employment.

His argument that his sole duty was merely to keep the key is nonsensical. Indeed it was conceded by counsel for the appellant that his duty was to keep the gold samples and that involved checking the safe from time to time. The appellant had last checked the safe in January 2012 - some four months or so before the samples were found missing.

When questioned by the Senior Security Officer, the appellant admitted to keeping the key in a drawer from which he suspected it might have been retrieved in order to steal the samples.

As to the second charge, the spare key had been missing throughout the period of the appellant's employment - which spanned 17 years. The consistent failure by the appellant, over this period, to take any measure to secure the safe, whether by replacement of locks or otherwise, can only amount to habitual and substantial neglect of his duties.

Although, in formulating the charge, the word “habitual” was not used by the Disciplinary Committee, it is clear from the established facts that the appellant's conduct amounts to habitual and substantial neglect of his duties.

The need for employees to submit to their employers' authority is firmly grounded in common law. 

Section 4 of the National Employment Code of Conduct, S.I.15 of 2006 merely codifies common law. Thus, both at common law and statute, an employer/employee relationship can only subsist in an environment where the employee is ready and willing to submit to the employer's lawful authority.

Subordination to the employer's lawful orders is a fundamental ingredient of the contract of employment without which it cannot exist. This emerges quite clearly from the definition of labour law where Dr L MADHUKU, Labour Law in Zimbabwe…, says:

“Labour law is concerned with labour work which is done in a position of subordination, that is, when an employee works under the command, the control and the authority of an employer, when the work is not carried out in a position of subordination, as in the case of self-employment, labour law does not apply.”

That definition is consistent with what has come to be known as the 'supervision and control test' formulated in the Blismas v Dardagan 1950 SR 234 case as follows:

“It is the essence of a contract of master and servant that the servant should submit to the direction of the employer and obeys his employer's instructions not only in the things he has to do but as to the time and manner in which he has to do them.”

I might as well add, “…, and place where he has to do his employer's work.”

M GWISAI in his book, Labour and Employment Law in Zimbabwe…, refers to the supervision and control test as the 'hallmark' of the employment relationship. This is a fundamental indispensable ingredient of the employment contract.

In light of the law, and the respondents open defiance of their employer's lawful orders, there is no dispute that they were correctly found guilty as charged by the disciplinary committee. The only bone of contention is the severity of the punishment. In other words, the simple issue for determination is whether or not, after balancing the aggravating and mitigating factors in the circumstances of this case the disciplinary committee acted reasonably in upholding the employer's decision to penalise the respondents with dismissal.

Section 4 of the National Employment Code of Conduct, S.I.15 of 2006 classifies both offences as serious and warranting dismissal. Where, however, an employee commits a dismissible act of misconduct dismissal is not mandatory but discretionary on the part of the employer in terms of section 7(3) of the National Employment Code of Conduct, S.I.15 of 2006 which provides thus:

“The dismissal penalty to be imposed for an offence in section 4 is not obligatory but is meant as a guide to employers and an employer may, at his or her discretion, apply a lesser penalty for example, a written warning.”..,.

It is important to note, right from the outset, that where an employee commits a dismissible act of misconduct under section 4 of the National Employment Code of Conduct, S.I.15 of 2006 the law vests the discretion whether or not to dismiss the offending employee on the employer alone and no one else.

The test for wilful disobedience to a lawful order warranting dismissal was laid down in the familiar case of Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206…, where GUBBAY JA…, had this to say:

“…, wilful disobedience or wilful misconduct, the words, in my view, connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

In this case, the respondents received at least three (3) months written notice of the order to transfer. They challenged the lawful order, through their lawyers, on moral and compassionate grounds without success. After their pleas for a reprieve from transfer had been turned down, they all knew, as a matter of fact, that their employer required them to be at their new work stations, at all costs, by 1 January 2013. Upon consideration of the respondents' representations, the appellant bent over backwards and extended the date of compliance to 1 April 2013. Despite that indulgence, the respondents, with full knowledge, defied the order.

The disobedience was wilful and deliberate, therefore going to the root of their respective contracts of employment.

The transfers were being done in accordance with their respective contracts of employment to enhance the employer's operational efficiency. As Chief Designated Agents, they were managerial employees profoundly aware of the employer's transfer policies and requirements. The requirement to submit to regular periodic transfers was therefore a material term of their respective contracts of employment. As such, their refusal to obey the employer's order in this respect could only amount to wilful refusal to do the work they were employed to do.

In this regard, the disobedience constituted a serious negation of their respective contracts of employment.

Such conduct undermined and paralysed the employer's work thereby constituting a fundamental breach of their respective contracts of employment. By refusing to go where the employer's work was to be performed the respondents were virtually rendering themselves incapable of performing their employer's work thereby repudiating their respective contracts of employment. The disobedience was not in error nor on the spur of the moment, but carefully considered and relentless over a long period of time.

Under the circumstances, can it seriously be contended that the employer's decision to dismiss was unreasonable considering that the respondents had persistently refused to go where the employer's work was to be done?

Ordinarily, for an employer's election to dismiss to be vitiated for irrationality, the unreasonableness has to be gross or so outrageous in its defiance of logic that no reasonable employer properly applying his mind would have made such a decision.

I now turn to consider the reasonableness or otherwise of the penalty of dismissal in the circumstances of this case.

In justifying that penalty, the Chairman of the Disciplinary Committee had this to say at p 323 of the record of proceedings:

“PENALTY

….,. It was the unanimous view of the disciplinary authority that the wilful disobedience of the respondent was in a very serious degree and was seriously aggravated. The mitigation was not of sufficient weight to operate to an extent as to excuse the penalty of dismissal. There was no offer by the respondent to do the correct thing nor was there any expression of regret by the respondent.”

With respect, I am unable to find any fault with the above line of reasoning which is logical and consistent with all the facts which are common cause. Although the above remarks were specific to the fourth respondent, they apply equally to all the four respondents.

In reversing the disciplinary committee's penalty of dismissal, the arbitrator reasoned, at p 448 of the record of proceedings, as follows:

“A careful analysis of the record of proceedings reveals that the disciplinary committee made justifiable findings in substantiating breach of the said sections of the National Code.

However, I differ with them in the penalty they gave for such contravention given the mitigatory factors and the circumstances of the case. I am of the view that the claimants' mitigatory factors were very pertinent to persuade the adjudicating authority to mete (out) a less punitive penalty than dismissal and further compel them to obey the lawful order.”…,.

The court a quo, in a brief cryptic judgment, considered and approved the above line of reasoning saying:

“The arbitrator's preceding analysis shows that she was alive to her powers as well (as) the relevant factors to consider. My own assessment is that the mitigation outweighed the aggravation. The offence is, by definition, a serious offence. However, the manner in which it manifests is what needs to be examined…,.”…,.

What emerges quite clearly from the above line of reasoning is that both the arbitrator and the court a quo were arrogating to themselves a discretion which they did not have thereby usurping the discretion of the employer under section 4 of the National Employment Code of Conduct, S.I.15 of 2006.

As I have already stated, once an employer has established that an employee committed a dismissible act of misconduct, as happened in this case, the discretion whether or not to dismiss lies solely with the employer.

Generally speaking, it is not for the appellate court, arbitrator or tribunal to substitute its own discretion for that of the employer. The point was brought home by MALABA DCJ in Innscor Africa (Pvt) Ltd v Letron Chimoto SC64/2012…, where the learned DEPUTY CHIEF JUSTICE observed thus:

“A principle has now been firmly established to the effect (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 this case, the Labour Court did not even appreciate that it was dealing with a case of discretion by the arbitrator.”

Having regard to the circumstances of this case, and the totality of the undisputed evidence placed before the disciplinary committee, it can hardly be said that it acted unreasonably. Both the arbitrator and the Labour court fell into error by applying the wrong test. The correct test, on appeal, was whether the disciplinary committee, on the facts before it, had acted unreasonably in ordering dismissal and not whether the mitigating factors outweighed the aggravating factors as postulated by the arbitrator and sustained by the court a quo.

In Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 it was held that the existence of a moral excuse would not assist an employee guilty of a serious act of misconduct going to the root of his contract of employment if the employer was intent on dismissal as happened in this case.

Both the arbitrator and the court a quo therefore fell into error and misdirected themselves by fastening onto, and reversing, the penalty of dismissal on moral and compassionate grounds.

Whether or not the mitigating factors outweighed aggravating circumstances was therefore an irrelevant consideration, unless the manner in which that decision was arrived at was shown to be unreasonable.

Once the employer had proven that the respondents had committed a serious dismissible act of misconduct, and in the absence of any error, gross unreasonableness or misdirection, their fate lay firmly in the hands of the employer in terms of section 7(3) of the National Employment Code of Conduct, S.I.15 of 2006.

The discretion whether or not to extend mercy lay with the appellant in its capacity as the employer.

It is apparent that both the Labour Court and the arbitrator were labouring under a serious misapprehension of the law in assuming that they could substitute their own discretion for that of the employer in the absence of any error or misdirection on the part of the disciplinary committee. In Mashonaland Turf Club v Mutangadura SC05-12, ZIYAMBI JA was at pains to remind Labour Court Judges and arbitrators that it was not open to them to alter a penalty of dismissal in the absence of misdirection or unreasonableness on the part of the employer.

That caution appears to have found no takers as it continues to be disregarded. What is especially alarming and of serious concern is the belief by some authorities that they can replace the employer's discretion to dismiss with their own to reinstate and then compel the employees to obey the employer's orders.

Given the respondents' transgressions, amounting to a fundamental breach of their respective contracts of employment, the decision to dismiss the respondents from employment was eminently reasonable.

For the foregoing reasons, this Court came to the unanimous conclusion that both the arbitrator and the court a quo, being creatures of statute without inherent jurisdiction, fell into error and misdirected themselves by exercising a non-existent discretion. In the result, the appeal can only succeed.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and in its place is substituted the following:-

“(a) The appeal be and is hereby allowed.

This is an appeal against a decision of the Labour Court dated 1 December 2011. The background to this matter may be summarized as follows:

The respondent was employed by the appellant as a Health Education Officer. In August 2007, the respondent approached her supervisor, a Mrs Chimhamhiwa, and advised her that they were overwhelmed at the clinic because of the growth of the Group. During this period, the respondent was granted permission to attend a training course in December 2007 until the end of the month at the Red Cross. In January 2008, on completion of the training, 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.

In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S)…, the Court held that the Labour Act [Chapter 28:01] contains no provision which either expressly, or by necessary implication, alters or purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship.

In arriving at this conclusion, I am not oblivious to the basic socio-economic reality that pervades the labour market, not only in this country but also almost everywhere else. The markedly unequal bargaining power of prospective employers on the one hand and aspirant employees on the other more often than not entails the latter having to succumb to the dictates of the former insofar as concerns the material terms and conditions, including the duration, of their contracts of employment.

Having determined that the parties effectively signed and honoured an agreement to terminate the employment of the respondent with the appellant, and that this circumstance constituted a final resolution of the dispute between them, it becomes unnecessary to consider the alternative ground of appeal relating to whether or not the respondent repudiated the employment contract.

Section 12B of the Labour Act provides for laid down procedures for the dismissal of any employee falling within its jurisdiction as follows:

“12B Dismissal

(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).

[Paragraph substituted by section 7 of Act 7 of 2005]

(1) An employee is deemed to have been unfairly dismissed –

(a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;

(b) If, on termination of an employment contract of fixed duration, the employee –

(i) Had legitimate expectation of being re-engaged; and

(ii) Another person was engaged instead of the employee.

(2) In any court 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 employees previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.

[Section substituted by section 10 of Act 17 of 2002].”

It was the applicant's allegation that he was unfairly discriminated against by the first respondent, in that charges of theft were preferred against him and not the casual workers he was working with. He further alleged that there was no basis for such differential treatment.

On that allegation, he claimed that his fundamental right to equal protection of the law enshrined in section 56(1) of the Constitution was violated.

The position of the law is that an employer has a discretion to choose whom to discipline out of a group of employees who may have committed an act of misconduct. The basis of the discretion is the principle of privity of contract. Once an employer takes a serious view of an employee's misconduct, the employer can institute disciplinary proceedings against that employee. As a matter of law, it matters not that others, believed by the affected employee, to be equally guilty of the act of misconduct charged against him or her are not charged. It is the consideration of the individual employee's own alleged acts of misconduct which influences the decision by the employer whether to charge him or her with misconduct.

In Zimbabwe Banking Corporation Ltd v Mbalaka SC55-15, the court…, expressed the following view:

“The Labour Court also relied on the dicta in Lancashire Steel (Private) Limited v Mandevana & Ors SC29-95, wherein the court stated:

'Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment; but, such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not, in law, relevant that others may also have been guilty.'…,.

It is beyond doubt that the Labour Court was alive to the discretion that is reposed in the employer in the application of this principle in disciplining an employee for an alleged misconduct as appears in the following statement by the court a quo:

'This does put to rest the argument about perceived selective punishment and victimisation. The respondent should face the consequences of his actions and cannot be allowed to hide behind others.'”

See also Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S).

This is an appeal against the whole judgement of the Labour Court, Harare, handed down on 6 March 2015.

BACKGROUND

The appellant was employed by the respondent as a Finance Manager in the year 2010. When the events that gave rise to this matter occurred, in October 2012, he was the Acting Chief Finance Officer.

On 3 October 2012, the appellant received a phone call which was later followed up by an email from Tetrad Investment Bank Limited (Tetrad). In both instances, a request was made of him to write a letter of undertaking. The letter was to be written on the respondent's letter head. The e-mail reads:

“DD Mining letter of undertaking…,.

Above supplier holds an order from yourselves which we have financed. We would be grateful if you could sign the attached letter of undertaking to pay to Tetrad on your letterhead.”

The email was written by one Toddy Muchongwe, General Manager, Corporate Banking at Tetrad and was addressed to the appellant. The body of the draft letter of undertaking that was attached to the email reads:

“Undertaking to direct all payments to Tetrad account number…,.

Acting under instructions received from…, and pursuant to an ongoing contract/arrangement between ourselves and…, where we regularly place orders of varying quantities of…, which we receive on account, we hereby irrevocably and unequivocally undertake to direct all payments as they fall due to the account held in your books for all goods received in good order and accepted by ourselves.

The details of the account to which all payments will be directed are as follows:

Account Name:

Account Number:

Branch:

We also undertake that there will not be a variation to the payment account unless we have received written instructions from Tetrad Investment Bank authorising such a variation.

Should any circumstances arise to prevent or unduly delay the transfer of any funds due for payment into the said account necessary advices shall be given to the bank and in the absence of such advices the bank shall be entitled to follow up and obtain any confirmations from ourselves as may be deemed necessary.

This letter is not transferable and will remain valid for as long as there are outstanding payments for goods received from…, or unless otherwise cancelled by the bank and written confirmation has been received.”

Also attached to the email, together with the draft letter of undertaking, was a purchase order purporting to emanate from the respondent company to DD Mining and General Suppliers (Pvt) Ltd for an item described as “CE-125 PERIPHERAL PUMP” with a grand total value of “125,625=02.”

The appellant allegedly consulted his immediate superior, one Simbisayi Wilfred Munemo, who gave him authority and the appellant proceeded to put the Tetrad draft on the respondent's letter head and he signed it. The appellant filled in the blanks in the draft Letter of Undertaking. Having done this, the letter now reflected that the writer was “acting under instructions received from DD Mining General Suppliers and pursuant to an ongoing contract/arrangement between ourselves and DD Mining and General Supplies.” He filled in the account name as “DD Mining and General Supplies.” He also filled in the account number and the branch name. He also filled in the blank in the last paragraph of the draft letter with the name “DD Mining and General Supplies”. The letter was sent to Tetrad. Thereafter, Tetrad phoned the appellant's superior to confirm that the letter of undertaking was in order.

In September 2013, the appellant and his immediate superior were called by the police to give statements in relation to an alleged fraud relating to the financing arrangement of DD Mining and General Supplies by Tetrad. The immediate superior apparently stated that he had consulted with the Chief Executive Officer who saw nothing amiss about the appellant's conduct in the Letter of Undertaking.

In January 2014, the respondent company's auditor was called by the police in connection with pending fraud cases relating to the respondent. At the meeting, the auditor was briefed about the Letter of Undertaking that was written to Tetrad. The auditor briefed the then Acting Chief Executive Officer who then raised two charges of misconduct against the appellant.

The appellant was charged by the Acting Chief Executive Officer with fraud and also with acting in a manner that is inconsistent with the fulfilment of express or implied conditions of his contract of employment as defined in sections 4(d) and 4(a) respectively, of the Labour (National Employment Code of Conduct) Regulations, 2006, S.I.15 of 2006. The letter of suspension stated, inter alia, that -

“The Company (Marange Resources Private Limited) (sic) became aware, in January 2014, that on 3 October 2012 you wrote and issued a letter of undertaking to Tetrad Investment Bank Limited on behalf of DD Mining and General Supplies. It is a common cause fact that you were fully aware that the basis upon which the letter of undertaking was made had nothing to do with Marange Resources (PVT) LTD. It is common cause and clearly known by you that the purchase order upon which you acted upon (sic) bears no resemblance to the Marange resources (PVT) LTD order book/form. In your position you clearly know that Marange Resources (PVT) LTD does not trade as Marange Diamond Fields but you proceeded to commit the company to be tied to such an order and the associated transaction that occurred. It is further common cause fact that you were fully aware that at no time in the history of Marange Resources (PVT) LTD that DD Mining and General Supplies had conducted business with Marange Resources (PVT) LTD.”

With specific reference to the charge preferred against the appellant in terms of section 4(a) of the Labour (National Employment Code of Conduct) Regulations, 2006, S.I.15 of 2006 (any act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment), the letter further stated:

“…, your position has a contractual and legal duty to act and conduct yourself honestly and solely in the interests of the Company. You wrote and issued a letter of undertaking that bound the Company to a financial transaction which had nothing to do with the Company. You breached the express and implied term of your contract of employment in relation to trust and integrity. You occupy a position of trust and your act and conduct in this matter was inconsistent with the above as you breached the trust bestowed upon you by the Company to manage and protect its interests. Your act and conduct in this matter has demonstrably lacked integrity to an extent of putting the company to serious risk, disrepute and irreparable damage.”

The matter went before a Disciplinary Committee which found the appellant guilty of the latter charge, conduct inconsistent with express or implied provisions of the contract of employment. The appellant was consequently dismissed from employment.

Dissatisfied with his dismissal, the Appellant referred the matter to a Labour Officer for conciliation in terms of section 8 of the Labour (National Employment Code) Regulations, 2006, S.I. 15/2006 (the National Code of Conduct). The matter was heard by a labour officer in terms of section 93 of the Labour Act. Following unsuccessful conciliation, the matter was referred to arbitration in terms of section 98 of the Labour Act.

The arbitrator agreed that an infraction had indeed been committed by the appellant and confirmed his conviction. He however set aside the penalty of dismissal and replaced it with a final written warning valid for 6 months and he reinstated the appellant.

Disgruntled with the arbitral award, the respondent appealed to the Labour Court. Equally dissatisfied with the award, the appellant also filed a cross-appeal on eight grounds. These grounds of appeal are not material to the determination of this appeal.

The Labour Court upheld the main appeal and dismissed the cross appeal. The arbitral award was set aside and substituted with the following;

“The penalty of dismissal of the respondent be and is hereby confirmed and the reinstatement of the respondent be and is hereby set aside.”

THIS APPEAL

This is the finding that is the subject of this appeal. Two issues arise from the lengthy grounds of appeal relied on by the appellant. These are:

1. Whether or not the Labour Court was correct in confirming the finding of guilty on the second charge preferred.

2. Whether or not the Labour Court had a basis on which to interfere with the decision of the arbitrator on the issue of the appropriate sentence.

I now deal with these questions seriatim.

1. Whether or not the Labour Court was correct in making a finding of guilty on the second charge preferred

The appellant maintains that the finding by the disciplinary hearing that he is guilty of “any act or conduct inconsistent with the fulfilment of the express or implied conditions of one's contract of employment” was erroneous as there was no evidence to justify such a finding.

It is common cause that, at the material time, the appellant was the Acting Chief Finance Officer of the respondent. Although the appellant's contract of employment was not produced at any stage and is not part of the record, it is trite that all contracts of employment contain both express and implied provisions. Every contract of employment is hinged on a relationship of trust between the employer and the employee. This relationship of trust is an implied provision in any employment contract even if it may not be expressly stated. In signing a contract of employment, an employee undertakes to carry out the express and implied mandate of the employer.

It is an essential principle in employer and employee relationships that an employee has a duty to safeguard the interests of the employer.

In casu, the appellant's position, as the Acting Finance Officer, imposed on him the duty to exercise due care and diligence. During the disciplinary hearing the appellant reportedly conceded and confirmed that it was his duty and role to advise the respondent company's Finance Department.

This Court has, on a number of occasions, pronounced on an employee's conduct that is inconsistent with the express or implied conditions of the contract of employment. One such case is Standard Chartered Bank Zimbabwe Limited v Michael Chapuka SC125-04 where the following is stated…,:

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee…,.”…,.

The Appellant conceded that the letter that gave rise to the litigation between the parties was written at Tetrad's bidding and initiative. The contents of the letter were authored by Tetrad. The appellant was an employee of the respondent and not of Tetrad. The appellant's conduct, in writing the letter and signing it, amounts to him acting in pursuance of the interests of a third party; which third party is not included in the employer-employee relationship that he had with the respondent. This is so because by appending his signature to the letter of undertaking, the appellant vouched for the truthfulness of the contents of the letter. He vouched for the correctness of the allegations in a letter that did not emanate from or benefit his employer. In addition, he did this without ascertaining the truth of the contents of the letter in circumstances where other departments of the respondent company would have been in a position to advise him accordingly.

It is undisputed that the appellant did not verify the contents of the letter in question, in particular, that there was an ongoing contract between the respondent and DD Mining and General Supplies. Appending a signature to a letter that communicated what had not been verified by the appellant was not only negligent conduct on his part but it also exhibited a lack of the diligence that would be expected of an employee of his level, and, in fact, of every employee of whatever level. The best interests of an employer can only be achieved if employees diligently verify any undertaking that binds their employer. As was aptly stated in the Namibian case of Helao Nafidi Town Council v Shivolo [2016] NAHCMD [2016]…,:

“The drift of Roman-Dutch and English authority is to the effect that the employer-employee relationship imposes a duty on the employee to act in the employer's best interest. The employee has a duty not to work against the employer's interests. The duty arises even though there is no express term in the contract of employment to that effect. As has been aptly stated in Lesotho Highlands Development Authority v Sole, the liability for breach of a fiduciary duty is not necessarily delictual or contractual but sui generis and will depend on the particular circumstances of each case. At the core is the principle that a person placed in a fiduciary duty will be in breach of his/her duty by failing to act bona fide in the interests of the employer.”…,.

The question arises whether, despite the alleged assent by his superior, the appellant ought to be said to have not acted in the best interests of the employer when he signed the letter of undertaking without verifying its contents.

The answer ought to be in the negative.

By failing to verify the contents of the letter of undertaking before appending his signature, the appellant did not act in the interests of the employer. It was his signature that was to be appended on the letter and not that of his superior. There was therefore a duty on him to verify the contents that he signed for. In any event, it was not the appellant's case that his superior verified the contents of the letter of undertaking.

The fact that the appellant sought, and obtained, approval from his immediate superior did not take away from him the duty to verify information that had the effect of binding his employer. The immediate superior's approval did not amount to verification of the content of the letter.

The following excerpt from the Disciplinary Authority's determination is apposite insofar as it reflects how it arrived at and justified the finding of guilty:

“2. With respect to section 4(a), the Respondent is a Senior Manager who acknowledges that he also has an advisory role to his Supervisors and he should have conducted himself honestly and diligently in the interest of the organisation:

2.1 He ought to have verified that Marange Resources had an existing order and Contract with DD Mining;

2.2 The letter of undertaking should have had Marange Resources References; The respondent merely printed a document without applying his mind to it;

2.3 The fact that Mr Munemo knew about this transaction does not make it right, and it does not absolve Mr Munemo of answering charges if the company chooses to do so;

2.4 The Respondent should take full responsibility for the letter of undertaking and its consequences. He cannot run away from his signature…, the act of the respondent is tantamount to gross negligence, in writing a Letter of Undertaking on behalf of Marange Resources without verifying facts from other departments. In his evidence, he failed to take Responsibility for what the letter was stating.”

Viewed in the light of the above, the confirmations by the arbitrator, and, subsequently, by the court a quo, of the verdict of guilty by the Disciplinary Authority cannot be faulted.

In the result, the appellant was therefore correctly found guilty of the misconduct of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. The court a quo thus correctly found that it could not interfere with the finding of guilty with which the appellant was aggrieved. It was incumbent upon the appellant to ensure the truth of what he was signing for and in this he failed.

2. Whether or not the court a quo had a basis to interfere with the decision of the arbitrator on sentence

It is settled in our law that an Appellate Court must be slow in interfering with the discretion exercised by a lower court. 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 considerations, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the material for so doing. See Barros & Anor v Chimphonda 1999 [1] ZLR 58 [S]…,.

The Labour Court sat as an appellate tribunal. The only basis on which it could have interfered with the decision of the arbitrator is if the arbitrator did not show a basis for interfering with the discretion to dismiss that was exercised by the employer. As stated in Geza v ZFC 1998 (1) ZLR 137 (SC), appeal courts should not lightly alter penalties of dismissal without showing that there was gross unreasonableness, mala fide or capriciousness.

In considering the appropriate penalty to impose on the appellant, the disciplinary authority stated, inter alia, that the conduct of that appellant went to the root of the contract of employment. Furthermore, that, in terms of the law, once it is proved that the conduct complained of goes to the root of the contract of employment, the penalty to be imposed lies squarely at the disposal of the employer. The appellant's plea for a written warning was found not to meet the justice of the case. On the strength of authorities of the Supreme Court cited in the Disciplinary Authority's determination, the appellant was dismissed from employment.

See Innscor v Letron Chimoto SC06-12; Mashonaland Turf Club v George Mutangadura SC05-12; ZB Financial Holdings v Maureen Manyarara SC03-12.

In considering whether the dismissal of the appellant was lawful, the Arbitrator opined that as the appellant was a first offender, a correctional penalty was the most appropriate. He referred to a judgement of the Labour Court, NEI Zimbabwe (Pvt) Ltd v Makuzva LC/H/248/04 and quoted the following excerpt:

“I am convinced that in providing for section 12B(4) in the Act, the Legislature meant to ensure that employers do not rush to dismissals merely because the acts of misconduct were dismissible…, any disciplinary action taken must be largely corrective and reasonable.”

The Arbitrator proceeded to state that the same principle is echoed in section 7(1) of the National Code of Conduct which provides as follows:

“(1) In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should only be taken when the said earlier steps have proved ineffective.”

He further stated that this principle should have been a guiding factor in the exercise of the respondent's discretion. Furthermore, that the respondent had, in any event, not suffered any prejudice and that there was nothing on the record to show that the appellant's mitigating factors were reasonably assessed and taken into account. He also opined that as the contract of employment was not produced during the disciplinary hearing, the respondent's stance that the misconduct went to the root of the contract was unreasonable as it was based on an inference. He proceeded to highlight that that the respondent was aware that the appellant had written the Letter of Undertaking after receiving a call and an email from Tetrad and that there was no finding of proof of any sinister motives linked to the Letter of Undertaking. He therefore found that the merits of the case do not warrant a penalty of dismissal. He proceeded to set aside the dismissal penalty, and, instead, imposed one of a final written warning valid for six months.

The Labour Court set aside the Arbitrator's penalty of a final written warning and confirmed the appellant's dismissal. It referred to the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha SC60-03 in which it was stated that once an employer takes a serious view of the misconduct committed by an employee to the extent that it considers it a repudiation of the contract, which repudiation it accepts by dismissing the employee, then the question of a penalty less severe than dismissal will not arise for consideration.

The court a quo correctly found further guidance in the case of ZB Financial Holdings v Maureen Manyarara SC03-12 where it was stated that even where mitigating factors are taken into account, this would not necessarily assist an employee where the employer considers the misconduct as one that is so serious as to go to the root of the contract of employment.

The undisputed fact is that the appellant wrote a letter to Tetrad claiming that he was acting under instructions from DD Mining and General Supplies which had an ongoing contract or arrangement with the respondent in terms of which the respondent regularly placed orders. At p 5 of the judgement of the court a quo the learned judge aptly stated:

“The crux of the matter is said to be that the respondent gave false information in the letter of undertaking that there was an on-going contract between the appellant and DD Mining and that he was acting under instructions from DD Mining.”

By his conduct, in writing the Letter of Undertaking that had falsehoods, the appellant abandoned his duty of safeguarding the interests of the respondent. He did not verify the truthfulness of what he was signing for and thereby binding the respondent, as its representative, in his capacity as the Acting Chief Finance Officer.

The alleged or purported authorisation does not avail the appellant any relief in this regard. Furthermore, Tetrad did not write the letter on behalf of the appellant. The appellant wrote it and appended his signature thereto. The fact that the content of the letter was suggested by Tetrad does not take the appellant's case any further. By his admission, that he was told what to write in the letter, the appellant, in essence, admitted that he had abandoned the interests and the instructions of the respondent - his employer.

The appellant signed the letter of undertaking without due diligence, thereby disregarding his duty to his employer. He committed an act and conducted himself in a manner that is inconsistent with express or implied terms of his contract of employment. This Court's statement, in the case of Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S), is apposite:

“It is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated. Standard Chartered Bank Zimbabwe v Chapuka SC125-04.”…,.

The contention by the appellant that his conduct cannot be so viewed because the contract of employment was not produced during the hearing only goes to confirm the appellant's unsuitability for continued employment with the respondent.

It is settled that the decision on what penalty to impose on an employee is an exercise of discretion by the employer. That discretion, however, must be exercised judiciously.

The arbitrator's finding that the employer had not exercised this discretion judiciously was not founded on any valid consideration. The arbitrator seemed to labour under the mistaken belief that mitigating factors, as provided for in section 12B(4) of the National Code of Conduct, have the effect of altering the common law position that allows an employer, who views an employee's misconduct as one going to the root of their employment agreement, to exercise its discretion and terminate the relationship.

The following excerpt from Standard Chartered Bank Zimbabwe Limited v Michael Chapuka SC125-04…, now quoted more fully, is of assistance in the proper determination of matters of this nature:

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter. In Clouston & Co Ltd v Corry [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a dictum at p129:

'Now, the sufficiency of justification depends 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 misconduct in a servant which will not justify the termination 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.'”…,.

Further, at pages 8–9 of the judgement the following is also stated:

“In my judgment, what was said by the Tribunal about the effect of the misconduct committed by Chapuka against Standard Chartered would not have been sufficient to justify interference with the judgment of the Appeals Board. The relevance of the statement by the Tribunal that the intention of Chapuka in committing the misconduct was not to defraud Standard Chartered and that no prejudice was suffered by Standard Chartered as a result of his acts is open to doubt, because the alleged intention of a fraudulent employee cannot be taken as a standard with which to determine whether an employer acted reasonably in taking the view that the misconduct was so serious in nature as to justify dismissal.”…,.

For the reasons discussed above, the decision of the court a quo cannot be faulted.

In the result, the appeal fails in its entirety. Costs will follow the cause. It is therefore ordered as follows:

The appeal is dismissed with costs.

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.”

On the issue of the appropriate penalty, it is common cause that the prescribed penalty for negligent performance of duty, in terms of the appellant's Code of Conduct, is a final written warning. As there is no need to remit the matter, that is the penalty that should be substituted…,.

Accordingly it is ordered:

1. The appeal is allowed with costs.

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

“(i) The appellant's dismissal is set aside.

(ii) The appellant is found guilty of negligent performance of duty.

(iii) The appellant is given a final written warning.”