Discipline re: Disciplinary Hearings iro Conduct Inconsistent With Express & Implied Conditions of Employment Contract

SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

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 ...

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.

SC06-12 : INNSCOR AFRICA (PVT) LTD vs LETRON CHIMOTO
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court setting aside the decision of the arbitrator by which she confirmed the dismissal of the respondent from employment following a conviction for misconduct. The respondent was convicted of conduct inconsistent with the fulfilment of the express or implied terms or conditions of his contract of employment contrary ...

The respondent was convicted of conduct inconsistent with the fulfilment of the express or implied terms or conditions of his contract of employment contrary to the provisions of section 4(a) of S.I.15 of 2006.

It was alleged that the respondent, in the course of his employment as a pizza maker, had produced a pizza without having received the necessary docket authorising the production of the pizza.

In terms of the code of conduct what the respondent did constituted a dismissible offence. The disciplinary hearing committee and the arbitrator found that the misconduct by the respondent was of a serious nature going to the root of the relationship of employment and that it involved an element of dishonesty on the part of the respondent.

The Labour Court overturned the penalty of dismissal and substituted it with reinstatement. In doing so it held that the arbitrator had not taken into consideration that the respondent was acting under pressure. It went on to say that the appellant had not suffered any prejudice through the production of the pizza and that the pizza was worth only $4=. It also said that the penalty should have been corrective rather than punitive.

The unanimous view of the Court is that the Labour Court seriously misdirected itself in coming to the conclusion it did. There is no question that the appellant had contested the allegation by the respondent that he was acting under work pressure. Indeed, the Labour Court acknowledged this in the third paragraph of its reasons for judgment. The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers.

The finding that the pizza was only $4= was of no consequence. The offence committed involved a betrayal of trust and confidence reposed in the respondent by the appellant thereby going to the root of the relationship between the employer and employee. In the circumstance, the holding by the Labour Court that the respondent ought to have been corrected is a misapplication of the provisions of section 7(1) of S.I.15 of 2006. The provision was not intended to apply in a situation where the misconduct of an employee goes to the root of the contract of employment.

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 an exercise of discretion by the arbitrator. The Labour Court merely substituted its own discretion for that of the arbitrator, without finding any recognisable misdirection on the part of the arbitrator.

In the circumstances, the Court is satisfied that the appeal ought to succeed. Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

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

"The appeal is dismissed with costs."

SC12-12 : ANDREW MACHAYA vs FARM AND CITY CENTRE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

This is an appeal against the judgment of the Labour Court in which the Court allowed an appeal against an award made by an arbitrator, set aside the award and directed that the matter be set down for quantification before the Court. The background relevant to the determination of this matter is as follows. The respondent was ...

The background relevant to the determination of this matter is as follows.

The respondent was employed by the appellant as a Personnel Manager. In or about 2003, the respondent suspended the appellant on allegations of misconduct. A hearing to determine those allegations was aborted when it was realised that the Code of Conduct under which the appellant was charged was inapplicable. No determination was made in respect of the allegations of misconduct.

In June 2000, the appellant approached the Ministry of Labour complaining, firstly, that he had been unlawfully suspended, and, secondly of other unfair labour practices. On 22 August 2001, a Labour Relations Officer determined that the respondent had not made an application in terms of the provisions of section 2 of S.I.375 of 1985 for the dismissal of the appellant. He consequently ordered the respondent to pay the appellant the equivalent of four months salary as compensation for loss of employment. On 3 September 2001, the appellant appealed to the Senior Labour Relations Officer against that decision and the respondent cross-appealed on 11 October 2001.

The Senior Labour Relations Officer, on 27 November 2003, determined that no application to dismiss the appellant had been made by the respondent. Without inquiring into the merits, he then ordered the reinstatement of the appellant without loss of pay and benefits from the date of suspension. In the alternative he ordered that the appellant be paid his salary and benefits from the date of suspension to the date of determination and damages in lieu of reinstatement in a sum to be agreed to by both parties.

On 31 January 2003, the respondent appealed to the Labour Relations Tribunal against that decision but then withdrew that appeal on 26 March 2003.

On 11 June 2003, the appellant was paid his arrears in respect of salaries and benefits in the sum of Z$162,516=19 by the respondent. In due course, the matter was referred to an arbitrator who awarded the appellant thirty months salary in lieu of reinstatement and backpay from the date of suspension to 26 March 2003, being the date when the respondent informed the appellant of its decision to pay damages. The respondent then appealed to the Labour Court, which made the determination which forms the subject matter of this appeal.

The Labour Court, in its determination, made a number of findings. Firstly, that the arbitrator had erred in quantifying damages in the absence of evidence justifying such award. Secondly, that the arbitrator erred in finding that the only position the appellant could have taken was that of a Personnel Manager. Thirdly, that the arbitrator erred in finding that the damages payable to the appellant were to be based on wage rates prevailing at the time of the award….,.

It is apparent from the record that although the respondent claims that an application to dismiss the appellant was made in terms of S.I.371 of 1985, no such application appears to have been received by the Minister, and, consequently, no approval for the dismissal of the appellant was given by the Minister. It is common cause that at the relevant time the appellant could only have been dismissed in terms of the provisions of S.I.371/85.

The papers filed of record reveal that at all times, the appellant complained that he had been unlawfully suspended and that he remained an employee of the respondent. Indeed, one of the issues raised by the appellant before the Senior Labour Relations Officer, and the arbitrator, was the status of his contract of employment. However, neither of them made a determination of this issue.

In light of the observations I have just made, the finding by the Labour Court that the question of the respondent's employment status had not been raised in proceedings before the arbitrator is a misdirection.

The issue of the employment status of the appellant was consistently raised by him and was an important matter.

It is clear that the Labour Relations Officer, the Senior Labour Relations Officer, the arbitrator and finally the Labour Court, made no finding on this issue. It is evident from the record that at no time was the appellant properly suspended and dismissed. The respondent's counsel has conceded as much before this Court. Therefore, in the absence of the appellant having been properly dismissed, the question of damages and reinstatement does not arise….,.

The appellant's contract of employment could only have been terminated in terms of the provisions of S.I.371/85. It is also not in dispute that permission to dismiss the appellant was not granted by the Minister in terms of the aforementioned Regulations. There was, therefore, no valid suspension or dismissal of the appellant from employment. The Labour Officer, the Senior Labour Officer and the arbitrator, therefore, had no jurisdiction to determine this matter. In the exercise of the review powers of this Court, the proceedings before these three bodies must be set aside.

The law is clear that every thing that transpired from the time of the appellant's suspension was a nullity. In the circumstances, there is no doubt that at all times, the contract of employment between the appellant and the respondent remained extant and binding upon the parties. Accordingly, the appeal succeeds and it is therefore ordered as follows:-

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

2. The judgment of the Labour Court be and is hereby set aside.

3. The proceedings before the Labour Officer, the Senior Labour Officer and the arbitrator, be and are hereby set aside.

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

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.”

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

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

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

This is an appeal against a judgment of the Labour Court. The point of law to be determined is whether the Minister's decision, in terms of section 12C(9) of the Labour Act [Chapter 28:01], constitutes a termination of the employment contracts of the affected employees.

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court upholding an appeal against an arbitral award. The background to the appeal is as follows. The appellant was employed by the University of Zimbabwe (“the University”) as a full time lecturer in the department of Rural and Urban Planning. It is common cause that sometime ...

This is an appeal against the judgment of the Labour Court upholding an appeal against an arbitral award.

The background to the appeal is as follows.

The appellant was employed by the University of Zimbabwe (“the University”) as a full time lecturer in the department of Rural and Urban Planning. It is common cause that sometime in October 2008 the appellant stopped reporting for duty. In November 2008 he was removed from the pay sheet and his salary was stopped. In December of the same year a firm of legal practitioners, purporting to act on his behalf, addressed a letter to the respondent in which they challenged the latter's intention to evict the appellant's family from the accommodation afforded to the appellant by the respondent. Ultimately, the appellant's family was evicted. An invitation was sent to the appellant to physically avail himself to the respondent's offices by 6 February 2009.

The appellant did not attend as requested.

In August 2009, the appellant addressed a letter to the respondent which was in the following terms:

“This memo serves to inform you that following the official reopening of the University by the Vice-Chancellor, after the long temporary closure, I am here to resume my normal teaching duties. I, however, apologise for missing the opening sessions due to some logistical problems. Nonetheless, I promise to make up for the lost hours as soon as you give me my teaching load for the semester.”

The appellant was, however, barred from performing any duties and was denied access to his office. On 23 September 2009, the appellant wrote to the respondent alleging unfair labour practice and demanding an end to the alleged practices. On 14 October 2009, the appellant advised the Ministry of Labour of the alleged unfair labour practices and requested conciliation. On 15 October 2009, the respondent laid charges of misconduct against the appellant resulting in his dismissal.

When conciliation proved fruitless, the matter was referred to an arbitrator for compulsory arbitration. The arbitrator found that the respondent had committed unfair labour practices in ejecting the appellant from its flat and by stopping his salary and benefits without having formally charged him with misconduct. It had also failed to honour its duty to the employee to provide him with work when it denied him access to his office. The arbitrator also found that there was no evidence produced by the respondent to show that the appellant had obtained employment elsewhere. Deciding that the appellant had been dismissed constructively, the arbitrator issued an award in favour of the appellant. In the award, the arbitrator ordered that the appellant be reinstated to his employment without loss of salary and benefits, or, in the alternative, that he be paid damages in lieu of reinstatement.

Dissatisfied with the award, the respondent lodged an appeal with the Labour Court. The learned President of the Labour Court upheld the appeal and set aside the award by the arbitrator.

The appellant has appealed to this Court against that decision.

The grounds of appeal are as follows:

1. That the court a quo erred in making a determination on the substantive correctness of the disciplinary proceedings when that was never an issue before it.

2. That the court a quo also erred in essentially coming to the conclusion that it was proper for the respondent to dismiss the appellant without affording him an opportunity to be heard and so erred in giving effect to the cessation of benefits in the absence of a hearing and in breach of the basic tenets of natural justice.

3. The court a quo further erred in not declaring void disciplinary proceedings that had been put in motion notwithstanding a complaint had been properly lodged with a labour officer and had so been put in motion in order to negate that complaint.

4. The court a quo also erred in dealing with and interfering with issues of fact when such issues are not cognizable before it.

Counsel for the appellant submitted that the appellant had been unfairly dismissed and argued further that the dismissal had been effected contrary to section 12B of the Labour Act [Chapter 20:28].

It is common cause that the appellant did not report for duty for the period October 2008 to the middle of August 2009. The appellant contends that the University had been shut down and was not conducting business.

The respondent, on the other hand, contends that the normal business of the University was not suspended, and, that although students were not in attendance, all staff members were required to report for duty as normal.

Section 12B of the Labour Act [Chapter 20:28] provides that an employee has a right not to be unfairly dismissed from employment. It further provides that a dismissal shall be unfair unless it has been effected in terms of a registered employment code, or, if such is not available, the Labour National Employment Code of Conduct S.I.15 of 2006.

The onus is on the employer to show that the dismissal of an employee was effected in terms of a registered employment code.

The respondent has not denied that it removed the appellant from the payroll and also caused the eviction of his family from the residential premises that had been availed to the appellant as part of his employment benefits. He was also barred from performing any of the duties of a lecturer when he made himself available in August 2009. He was denied access to the office that he had been using prior to November 2008. He was not suspended or subjected to disciplinary procedures before these measures were taken against him. He also wrote letters to the respondent complaining about the alleged unfair labour practices and demanding that he be accorded his employment rights and benefits - to no avail.

The appellant then complained to a labour officer who referred the matter to an arbitrator for conciliation.

SC27-13 : SHECKEM BARRISTER NGAZIMBI vs MUROWA DIAMONDS (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court upholding the decision of the appeals officer to dismiss the appellant from employment with the respondent. At the beginning of the hearing, counsel for the respondent raised two points in limine….,. The preliminary points were contested by counsel for the appellant.

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

This is an appeal against the decision of the Labour Court dismissing, with no order as to costs, an appeal against an arbitral award upholding the dismissal of the appellant from her employment with the respondent.

SC80-14 : DHL INTERNATIONAL (PRIVATE) LIMITED vs KEVIN TINOFIREYI
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

This is an appeal against the whole judgment of the Labour Court, Harare, handed down on 28 January 2011. The brief facts of the matter are as follows:The respondent was employed by the appellant in the capacity of Data Coordinator. On 7 May 2007, the respondent was served by the appellant with two separate ...

This is an appeal against the whole judgment of the Labour Court, Harare, handed down on 28 January 2011. The brief facts of the matter are as follows:

The respondent was employed by the appellant in the capacity of Data Coordinator. On 7 May 2007, the respondent was served by the appellant with two separate charges of misconduct. The two charges were disobedience, provided for under section 19.3.5, and indiscipline, as provided for under section 19.2.10, of the appellant's Code of Conduct. The first hearing was held on the 10^th of May 2007. The respondent was found guilty of disobedience and issued with a final written warning valid for 12 months. The second hearing was held on 22 May 2007 in respect of the indiscipline charge. The respondent was found guilty of indiscipline and punished with dismissal. He unsuccessfully appealed to the General Manager of the appellant. His appeal to the Managing Director met the same fate. The respondent was, however, successful in his appeal to the Labour Court, which ordered that he be reinstated to his former employment, or be paid damages in lieu of re-instatement.

The appellant was disgruntled at this order, and filed the appeal now before the Court.

The appellant's grounds of appeal are as follows:

1. The court a quo erred in law in finding that the provisions of the applicable Code of Conduct precluded the imposition of the penalty of dismissal for the commission of the disciplinary offence of which the respondent had been found guilty;

2. The court a quo, having found that the respondent had committed a disciplinary offence striking to the root of the relationship between employer and employee, erred in law in nevertheless allowing the appeal;

3. Alternatively, the court a quo erred in law in upholding the appeal in its totality without the imposition of any disciplinary penalty on the respondent.

The appellant prays that the appeal be allowed and that an order upholding the original determination of the hearing officer, to the effect that the respondent be dismissed from employment, be granted.

The conduct with which the respondent was charged and for which the penalty of dismissal was imposed is not in dispute. Nor is it disputed that for the conduct in question, i.e. indiscipline categorised as a very serious offence, the appellant's Code of Conduct provides the penalty of a severe written warning. It does not impose the penalty of dismissal.

The appellant argued a quo, and in this Court, that the respondent's refusal to report for duty on 27 May 2007, after being asked to do so by the appellant, amounted to conduct that was incompatible with the fulfilment of the express terms and conditions of his employment. Such terms and conditions, it is further argued, required that he accepts changes in his hours or pattern of work, and upon request, that he works overtime. For these arguments, the appellant relied on, among other authorities, the case of Standard Chartered Bank Zimbabwe Limited vs Chapfuka SC125-04 where the court stated as follows:

“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 employee giving the former a prima facie right to dismiss the latter.”

See also Clouston & Co. Limited v Corry (1906) AC 122…, and Tobacco Sales Floor Limited v Chimwala 1987 (2) ZLR 210 (S).

The court a quo was not persuaded by the appellant's submissions and stated as follows at p16 of its judgment:

“Respondent's reasoning is consistent with the common law position on the master and servant relationship. However, our labour laws have evolved beyond that position. Our law has incorporated international labour standards including the concepts of social justice and democracy. Part and parcel of these concepts is collective bargaining involving employer and employee representatives in the setting of terms of employment. This has led to the introduction of employment codes. (See Section 101 of the Labour Act CAP 29:01). On such codes, GUBBAY C.J. as he then was, had this to say;

'The purpose of a Code of Conduct is to create certainty by spelling out what constitutes an offence in a given work place and, the penalty to be imposed for the commission of such offences.'

Delta Corp v Paul Gwashu SC96-00 (at p.3).

It follows, in my view, that any unwarranted departures from these codes only serves to undermine the labour standards agreed by employers and employees and risk reviving the old master and servant laws of the common law. As the common law was tilted in favour of the employer, continued reliance thereon in labour matters is, in my view, retrogressive.”

The crisp issue for determination is therefore whether the provisions of a Code of Conduct can override, and therefore alter, the common law principles governing an employer's right to dismiss an employee for misconduct that goes to the root of the employment contract.

This Court, in the case of Toyota Zimbabwe v Posi SC55-07 had occasion to consider and determine the exact same issue. In that case MALABA JA…, stated as follows…, judgment:

“The view of section 2 of the Code adopted by the learned President would drastically alter the common law. The position at common law is that a high degree of negligence, such as gross negligence in the performance of work, justifies an employer dismissing the employee: Wallace v Rand Daily Mail Co 1917 AD 479 at 482. 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. We are bound by the rule of construction to the effect that we must presume that there is no intention to alter the common law. As Mr Zhou put it, the Labour Act contains no provision which either expressly or by implication 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. A code of conduct cannot alter or abrogate a principle of the common law. It does not matter that the code of conduct is a product of an agreement.”…,.

In the earlier case of United Bottlers v Kaduya 2006 (2) ZLR150, a similar view was adopted by the Labour Court, albeit in relation to section 2 of the Labour Act ('the Act'). In that case, CHIDYAUSIKU CJ considered the meaning and import of section 2A of the Act and stated as follows…,;

“Section 2A essentially sets out the objectives of the act and specifically provides that in the event of a conflict between the Labour Relations Act and any other enactment the Labour relations Act shall prevail. The section is not a wholesale amendment of the common law. The common law can only be altered by an explicit provision of the Labour Relations Act.”…,.

It is pertinent to add that section 2A of the Labour Act refers to conflict between the Labour Act and any enactment.

'Enactment' does not include common law.

In any case, a proper reading of the authorities cited on this point clearly suggest that Codes of Conduct must be formulated in such a way that their provisions are not in conflict with common law, unless such a course is explicitly sanctioned by the enabling statute - that is the Labour Act.

The respondent did not point the court to any legal provision that either expressly, or by implication, purports to alter the common law principle that an employer has a right to dismiss an employee for misconduct that goes to the root of the employer and employee relationship. The view taken by the court a quo that a Code of Conduct overrides common law, is, in the light of this, clearly erroneous. The court a quo therefore seriously misdirected itself in stating:

1. That the dismissal of the respondent in casu was an 'unwarranted' departure from the appellant's Code of Conduct;

2. That our labour laws have 'evolved' from the position where employers can dismiss an employee for conduct found to be inconsistent with the fulfilment of the conditions of his service; and

3. That it, and any other court, could not 'rewrite' a company's Code of Conduct in the absence of any ambiguity therein.

The fact hardly needs emphasising that a situation where an employee absents himself from work in defiance of an order to the contrary is untenable in any work situation. This is particularly so where the employer is in business and its success and viability hinge on, among other factors, the discipline of its workforce. Discipline in the work place fundamentally entails obedience to orders and respect for authority. It is therefore in the employer's interest to do all in its power to nip in the bud any conduct that may lead to anarchy in the workplace. The respondent deliberately defied an order from his superiors not to leave work. His defiance had the effect of disrupting the appellant's operations and causing inconvenience to its customers. Such conduct was clearly inconsistent with the fulfilment of the express or implied conditions of his employment. On the basis of common law and numerous authorities in this jurisdiction and beyond, such misconduct justified dismissal. (See also Clouston & Co. Ltd v Corry (1906) AC 122…,.).

The point must however be made that not all acts of misconduct that are inconsistent with the express or implied conditions of one's employment warrant the penalty of dismissal. In this respect, McNALLY JA, in the case of Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S), cited with approval the following dictum:

“I consider that the seriousness of the misconduct is to be measured by whether it is 'inconsistent with the fulfilment of the express or implied conditions of his contract'. If it is, then it is serious enough, prima facie, to warrant summary dismissal. Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.”…,.

The respondent in casu has not denied the seriousness of the misconduct for which he was dismissed. He did not, and indeed could not, show that the offence was “so trivial, so inadvertent or otherwise so excusable” as not to warrant the remedy of summary dismissal.

I find, in the result, that the appellant properly, and in its discretion, imposed the penalty of dismissal on the respondent, even though the conduct in question was not dismissible in terms of its Code of Conduct.

In all respects, therefore, the appeal has merit and must, accordingly, succeed.

In light of this finding, it is the view of this Court that it is not necessary to consider the appellant's other grounds of appeal.

It is, in the result, ordered as follows:

1. The appeal is allowed with costs.

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

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

SC05-15 : INNSCOR AFRICA (PRIVATE) LIMITED vs TERRENCE GWATIDZO
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

This is an appeal against the decision of the Labour Court, setting aside the respondent's dismissal from employment and ordering his reinstatement. The pertinent facts of the matter are as follows. The respondent was employed as a pastry maker in the appellant's Pie Division. On 9 October 2005, the appellant requested its employees to report for ...

This is an appeal against the decision of the Labour Court, setting aside the respondent's dismissal from employment and ordering his reinstatement.

The pertinent facts of the matter are as follows.

The respondent was employed as a pastry maker in the appellant's Pie Division. On 9 October 2005, the appellant requested its employees to report for emergency overtime duties. Except for the respondent, who was on authorised time off, all of the other employees reported for duty. Upon the respondent's return to work, his supervisor asked him to write a report stating why he had not reported for emergency duties. The respondent refused to do so, arguing that his time off had been properly sanctioned, and, therefore, there was no need for him to write a report on his time off.

The respondent was later charged with two acts of misconduct, i.e. refusal to work overtime in case of emergency and wilful disobedience of a lawful order given by his superior. The appellant's Disciplinary Committee acquitted the respondent on the first charge but found him guilty on the second charge. It then ordered his dismissal with effect from 26 October 2005 and its decision was subsequently upheld by the appellant's Appeals Committee.

On appeal by the respondent against his dismissal, the Labour Court found that, because it was known that the respondent was on authorized time off, the order to write a report was so unreasonable as to be unlawful. Therefore, the respondent's refusal to comply with that order was not an act of insubordination. The court allowed the appeal and ordered the appellant to reinstate the respondent or pay damages in lieu of reinstatement.

The grounds of appeal herein are essentially twofold:

(i) That the court a quo applied the wrong test in holding that the order given to the respondent was so unreasonable as to be unlawful;

(ii) That the court consequently erred in finding that the respondent's refusal to write the report did not constitute wilful disobedience of a lawful order given by his superior….,.

LAWFULNESS AND REASONABLENESS OF ORDER

In principle, every employee has a duty to obey any lawful order given by his or her employer. See Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, where the meaning of what constitutes a lawful order is explained by GUBBAY JA as follows:

“The second requirement, that the disobedience be directed at 'a lawful order', means simply that the employee is not bound to obey an order to do something not properly appertaining to the character or capacity of his contract of employment. An order which involves a reasonable apprehension of immediate danger to the employee's life or injury to his person, not reasonably contemplated at the time he entered the employment, is unlawful and he is justified in refusing to obey it. For instance, an order to remain in a place in which his personal safety is endangered by violence or disease. See Bouzourou v The Ottoman Bank [1930] AC 271 (PC) at 276. The position would be otherwise were the employee a fireman, a policeman or a member of the armed forces. See Scoble op cit at p 147; Chitty on Contracts 25 ed vol 2 para 3510.

The existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful. This proposition is well illustrated by the old English case of Turner v Mason (1845) 14 M & W 112; 153 ER 411, in which a domestic servant - quite deliberately because she had made a request which was rejected - absented herself during a night when she should have been on duty. Her plea of justification was that her mother was desperately ill, though it is not clear that she so informed her employer. She was summarily dismissed and the Court of Exchequer upheld the dismissal. PARKE B remarked that even if the employer had been made aware of the cause of her request to absent herself, it would not have been sufficient to justify her disobedience to his order….,.

…,. The order to vacate the office did not involve a contravention of any law or any improper conduct on the part of Bowring. It did not expose the appellant to any risk or danger. In fact, it only required him to return to his own office. That order was not so unreasonable as to be unlawful.”

As for the element of reasonableness, KORSAH JA made the following remarks in PTC v Chihoro 1997 (1) ZLR 148 (S)…,:

“What is a reasonable order must necessarily rest on the circumstances of each case. There is no requirement that a lawful order must, in addition, be reasonable. If an order be so unreasonable as to defy common sense then it cannot be a lawful order. For instance, if the respondent herein had been ordered to go and deliver the telegrams immediately after suffering an epileptic seizure the order would have been so unreasonable that it could not be categorised as lawful, and disobedience to it would not justify summary dismissal. Similarly, if the respondent had been requested to deliver the telegrams at a place where a riot was in progress it may well be that his refusal to comply with the order would not justify his summary dismissal.

It is not an offence to refuse to obey an unreasonable order, for such an order is not a lawful order: R v Qumba 1930 CPD 396. And in the Indian case of Punjabhai v Bhagwandas (1928) ILR 53 Bom 309 (C) (cited in Words and Phrases Judicially Defined) MIRZA J expressed the view that -

'Lawful is what is in conformity with (or frequently not opposed to) the principle or spirit of the law whether moral or judicial.'

An order so unreasonable as to oppose the principle or spirit of the law cannot be lawful. What I said in the National Foods case supra should be read in this light. Implicit in lawful is what is not unreasonable.”

What I glean from these remarks is that although there is no positive requirement for an order to be reasonable, an order that is shown to be unreasonable is unlawful and need not be obeyed. I would add that it would be necessary to show that the order is unreasonable in the given circumstances of the case. To put it differently, an order or instruction is unlawful where it is so unreasonable that no reasonable person in the position of the employer would possibly issue it with the expectation that any employee would comply with it.

In summation, the test for evaluating the lawfulness of an order, as derived from the cases, is whether the order:

(i) Is capable of being carried out by the employee;

(ii) Is for the advancement of the employer's business;

(iii) Is closely related to the duties of the employee;

(iv) Constitutes an instruction to the employee to perform a lawful act; and

(v) Is not unreasonable in the circumstances of the case.

WILFUL DISOBEDIENCE AND INSUBORDINATION

In essence, wilful disobedience and insubordination, although treated separately in case authority, are two sides of the same coin. In other words, an employee will be guilty of insubordination where he or she wilfully disobeys a lawful order.

In Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, it was held, per GUBBAY JA, that wilful disobedience connotes:

“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 employee, going to the very root of the contract of employment.”

Similarly, as was observed by KORSAH JA in Chironda v Swift Transport 1996 (1) ZLR 142 (S)…,.:

“Surely, the omission to comply with a lawful order is not necessarily borne out of a defiance of authority. Unless the proved facts lead irresistibly to an intention to hold authority at defiance, it is a serious misdirection to hold that the appellant's omission to comply with an order was wilful.”

According to GROGAN: Dismissal, Discrimination and Unfair Labour Practices (2^nd ed.)…, insubordination arises when an employee refuses to accept the authority of his employer or superior. The employee must, by his act of insubordination, challenge the authority of his employer and thereby undermine their contractual relationship. There must be a calculated breach by the employee of his duty to obey his employer. In short, he must intend to defy the employer's order or instruction.

DISPOSITION

In the present case, there can be no doubt that the order given to the respondent, to write the report, was capable of being carried out by him. Additionally, although there is no reporting requirement spelt out in the appellant's Code of Conduct, I see no reason to disagree with the appellant's position that it was procedurally necessary for each one of its employees to account for his or her absence, in writing, so as to maintain discipline at the workplace. In that sense, the order was not only in the interests of and for the advancement of the appellant's business but also closely related to the duties of the respondent. Lastly, it cannot be gainsaid that the instruction given to the respondent was one to perform a lawful act.

The order given to the respondent was to put in writing the reason for his non-attendance for overtime duty. He was not asked to explain where he was or what he was doing during his time off. He was simply asked to formalise his non-attendance at work. In the circumstances, I do not think that the order can be regarded as being an invasion of his privacy or so unreasonable as to be unlawful.

The respondent refused to write the report as instructed because he was of the firm view that the appellant had no right to ask him to write the report, particularly as the appellant was aware that he was on authorized time off. He felt that the instruction given by his superior was an invasion of his privacy.

Therefore, he deliberately and consciously disobeyed the instruction.

As was made clear in Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, the existence of a moral excuse for disobedience does not make the employee's disobedience any less wilful or the employer's order any less lawful. Thus, the fact that the respondent vehemently believed that he was justified in refusing to obey the order does not diminish the wilfulness of his disobedience or affect the lawfulness of the order. Nor does it matter that the appellant was aware of the cause of the respondent's absence from work. That awareness did not relieve the respondent from his duty to obey the lawful instruction given to him.

The instruction was issued by the respondent's immediate supervisor who held a position of authority over the respondent. Consequently, the respondent had a duty to obey the instruction irrespective of the belief, which he openly proclaimed, that there was no need for him to submit the report. His refusal and failure to obey the order constituted an attack on the authority of his employer and undermined their contractual relationship. Moreover, he compounded his defiance of authority at the disciplinary hearing, by refusing to answer the questions put to him or to explain his earlier defiance. It is abundantly clear on the facts that he intended to defy his superior and ultimately his employer. In the event, there can be no doubt that he was guilty of wilful disobedience and insubordination.

The Labour Court found that the order given to the respondent to write the report was unreasonable and therefore unlawful. It accordingly found that he was not obligated to comply with the order and that his refusal to do so did not amount to insubordination. Having regard to the position that I have taken, the court a quo clearly misdirected itself and erred in its findings. In the result, the appeal against its decision must be upheld, with costs inevitably following the cause.

It is accordingly ordered that:

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

2. The decision of the court a quo is set aside and substituted as follows:

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

View Appeal
SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

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 ...

SC49-15 : CELSYS LIMITED vs NOBERT NDELEZIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

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 ...

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.”

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

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 ...

(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.

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

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 ...

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

3. The respondent be and is hereby ordered to pay costs on the Law Society scale of attorney and client.

View Appeal
SC26-13 : SHADRECK MOYO & 13 OTHERS vs J .L. HOFFMAN and CENTRAL AFRICAN BATTERIES (PRIVATE) LIMITED
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

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 ...

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 contention by the plaintiff that he remains an employee until he formally receives a letter terminating his employment does not make sense. This is because if the second defendant was to write such a letter, it would simply state that he was dismissed from the date of suspension. He would not be entitled to claim earnings from the date of suspension cum dismissal to the date the letter is written.

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

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] ...

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.

3. The respondent shall bear the appellants' costs for the appeal.

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO
Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

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 ...

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.

2. The award of the Arbitrator is set aside.”

SC22-16 : MICHEAL HENRY BROWNE vs TANGANDA TEA COMPANY
Ruled By: ZIYAMBI JA, GWAUNZA JA, PATEL JA

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 ...

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.

I will consider each of these issues in the order indicated....,.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“12.17 Gross Negligence

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

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

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

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

“9. Sexual Misconduct

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

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

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

“12.20 Inconsistent Act, Conduct or Omission

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

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

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

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

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

5. Penalty

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

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

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

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

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

6. DISPOSITION

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

The appeal be and is hereby dismissed with costs.

SC18-17 : HAPPISON SIGAUKE vs FALCON GOLD ZIMBABWE LIMITED
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

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 ...

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.

Accordingly, the appeal is dismissed with costs.

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

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 ...

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.

(b) The arbitrator's decision be and is hereby set aside.”

SC48-16 : ZB BANK vs MARIA MASUNDA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

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 ...

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.

The appellant indicated, in its heads of argument and in submissions to this court, that the main issues to be determined are whether the respondent was negligent and if she was negligent, whether the appellant properly took a serious view of her negligence....,.

As is apparent from the facts placed before this court, the respondent was charged with 'negligence causing substantial loss to the Bank', and, in the alternative, 'failure to comply with standing instructions or follow established procedures resulting in substantial loss to the Bank' in terms of the Code of Conduct for the Banking Undertaking, S.I.273 of 2000.

This offence is a category 'C' offence which does not warrant a penalty of dismissal.

However, the Hearing Officer found her guilty of 'gross negligence', which is a category 'D' offence, resulting in her dismissal.

The National Employment Council Appeals Board ordered the reinstatement of the respondent but did not make a finding on this aspect regarding the decision that was being appealed against.

The court a quo made mention of this in its judgment. On page 2 of the judgment, the court a quo noted that:

“The charge that had been preferred against the respondent was a Category C offence. In terms of the Code of Conduct, Category C offences attracted a warning if one was found guilty. The Hearing Officer, however, found her guilty of a Category D offence i.e. gross negligence when the allegations that had been preferred against her were lesser charges. In this regard the Hearing Officer misdirected himself.”

The court a quo went on to consider other issues and made a finding that the respondent had continued to take the initiative to highlight and bring it to the employer's attention that her department was overwhelmed with increased volumes of work as a result the merger. The reasoning of the court a quo was that the disciplinary committee was bound to impose the penalty indicated for that breach regardless of the seriousness with which the employer viewed the offence.

The argument, which was accepted by the court a quo, was that the respondent ought to have been found guilty of the offence that she had been charged with, a lesser offence or a competent offence flowing from the one charged. Instead, the Hearing Officer found her guilty of gross negligence which is a more serious offence than the one with which she had been charged.

Although the respondent was charged with 'mere negligence', it cannot be denied that what the respondent did was a serious act of misconduct when one has regard to all the factors in this case. In my view, the Hearing Officer cannot be impugned for having arrived at this conclusion after hearing all the evidence against the respondent. It should be noted that disciplinary proceedings, not being courts of law, are not bound by strict rules of procedure and it was quite proper for him to find her guilty of gross negligence where the evidence disclosed such an offence.

In any event, there is no doubt that the respondent was still found guilty of negligence - though it was of a more serious nature.

At common law, an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract.

See Toyota Zimbabwe v Posi SC55-07.

In essence, where the employer takes a serious view of the misconduct he can dismiss an employee even if in terms of the Code of Conduct the offence would have attracted a lesser penalty. This position was set out in Zimplats (Pvt) Ltd v Godide SC02-16 where GOWORA JA noted that:

“At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfillment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion.”

GOWORA JA further noted that:

“The court ought to have asked itself whether the employer had properly taken a serious view of the matter and whether there was sufficient evidence to support the conviction on the preferred charges. Unfortunately, the court a quo did not ask itself these pertinent questions and proceeded to determine the matter on an issue which was not even premised on the grounds of appeal before it. The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the Code does not provide for dismissal as a penalty. In Circle Cement v Nyawasha SC60-03, this court held:

'Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.'”

I associate myself fully with the above remarks.

The issue to be determined by this court is whether the employer took a serious view of the matter and made a finding that the misconduct was of an aggravated nature based on the evidence. It is also important to establish whether the respondent was guilty of an offence which went to the root of the employment contract.

It is clear from the record that the disciplinary hearing was conducted in a fair manner and the respondent had the chance to advance evidence in the claim made against her. It is apparent from a reading of the record that the Hearing Officer…, was cognizant of all the factors that were presented before him. In determining the penalty to be imposed he stated the following:

“I have weighed the facts presented by both parties. I do understand that there was an increase in work because of the merger. However, Mrs Masunda did not understand the value attached to CIMAS claim forms, though she outlined that she was working under pressure. I saw an email here dated 25 April 2008 from Mrs Masunda to Mrs Chimhamhiwa advising her of the pressures that the clinic was facing. The challenge is the value of these claims; one, the face value and two, time value considering inflation. At the moment the Bank had to fund the claims. The claims submitted so far amounted to +/- ZW$620 trillion. Mrs Masunda indicated that CIMAS might pay three quarters of the amount under normal circumstances. The focus is now on the monetary value of the offence at hand and the period that was taken by the respondent to take this issue seriously. According to the Code of Conduct I would refer this as gross negligence causing serious loss to the Bank and this falls under category D and the penalty that goes with this is dismissal.”

There is no doubt that the Hearing Officer took a serious view of the misconduct of the respondent in making a determination of the penalty. The fact that the respondent did not report that the medical aid forms were not being filed, as is required, shows that she did not really appreciate the gravity of the offence. The financial loss to the appellant, as a result of the respondent's negligence, was extremely high.

The respondent did not dispute this during the hearing. She also did not dispute the fact that she only made a report that there was a need to employ another person but did not explain that the work overload had resulted in the failure to file the medical aid claim forms for a long period.

Had she reported this fact to her supervisor the employer might have ensured that another person was employed to assist in doing the outstanding filing work. Her negligence resulted in the company losing ZW$623 trillion.

It is clear that the filing of the medical aid claims was an integral part of the respondent's duties as an employee of the appellant.

Where an employee fails to further the interests of the employer by omitting or refusing to do the work he is employed to do such failure amounts to a serious misconduct that goes to the root of the employment contract. There can be no doubt on the facts of this case that the respondent failed to execute her duties as was expected.

Section 4(2)(f) of the Code of Conduct for the Banking Undertaking, S.I. 273 of 2000 provides that:

“(f) Having examined all the facts, the Hearing Officer shall determine the disciplinary action to be taken, having taken note of comments by the workers' representative.”

The Hearing Officer, having considered all the circumstances, took a serious view of the matter and this resulted in the respondent being found guilty of gross misconduct and dismissed from employment.

That decision, in my view, was not unreasonable. The loss suffered by the appellant was high. That loss could have been avoided had the respondent made a complaint earlier.

I find no impropriety in the manner in which the Hearing Officer exercised his discretion in this regard.

It is a trite principle of our law that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. In other words, the decision must have been irrational, in the sense of being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.

See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

The only basis upon which the court a quo could have made a finding for the respondent is by investigating whether the decision of the Hearing Officer was irrational in the above sense and it is upon making such a finding that the court could have set aside the decision of the disciplinary tribunal. In the absence of a finding of a misdirection by that tribunal, the court a quo therefore misdirected itself by interfering with the finding of the lower tribunal….,.

In the circumstances, the court is satisfied that the appeal ought to succeed.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

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

“The appeal is allowed with costs.”

SC56-16 : AJASI WALA vs FREDA REBECCA MINE
Ruled By: MALABA DCJ, GWAUNZA JA and MAVANGIRA JA

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 ...

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

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 ...

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

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.

SC56-18 : CITY OF GWERU vs RICHARD MASINIRE
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

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 ...

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

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 ...

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…,:

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.

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

This is an appeal against the whole judgment of the Labour Court dismissing the appellant's appeal against the decision of the Appeals Committee and confirming her conviction on misconduct charges and the subsequent penalty of dismissal from employment.The appellant was employed by the respondent, a health care insurance provider, as ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The two grounds of appeal raise three issues for determination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against that part of the judgment of the Labour Court by which it set aside the decision of the initial hearing by the appellant to dismiss the respondent from employment following a finding of misconduct in that she participated in an unlawful collective job action on 4 May 2004.

The court a quo substituted for a dismissal a penalty of a final written warning and ordered reinstatement, alternatively, payment of damages.

The Labour Court did so after consideration of three factors which it took to be mitigatory. These were that; the participation was for two hours, the duration of the collective job action was short; and there was no evidence of previous convictions. The contention by the appellant is that the court a quo misdirected itself in the exercise of its discretion.

The Court agrees that there was a serious misdirection on the part of the court a quo.

The fact of the respondent's participation for a period of two hours is not a mitigating factor because that was the duration of the unlawful collective job action. The offence she was charged with was of participating in an unlawful job action regardless of its duration. Even assuming that the respondent was a first offender the court a quo had to take into account the fact that the employer considered the misconduct as one that was so serious as to go to the root of the contract of employment.

The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by an employer and that it could not interfere with the decision to dismiss without a finding of misdirection on the party of the employer. The reliance on the fact of the respondent being a first offender to set aside the dismissal, in the absence of a finding of misdirection on the part of the employer, was improper.

The unanimous view of the court is that the appeal succeeds.

Accordingly, it is ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the court a quo, setting aside the dismissal of the respondent and ordering her reinstatement, is hereby set aside and substituted with the following order:

"That the dismissal of the respondent be and is hereby confirmed with costs."

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here, in full, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).

2. The penalty imposed on the appellant was a nullity in that there was no compliance with the respondent's Code of Conduct requiring that the Worker's Committee be consulted before such a penalty is imposed.

3. Alternatively, the court a quo erred on a point of law in that it was at large to interfere with the penalty of dismissal because there was no compliance with the respondent's Code of Conduct requiring that the Workers' Committee be consulted before a penalty of dismissal is imposed.

4. Alternatively, the court a quo misdirected itself on a point of law in refusing to interfere with the penalty of dismissal upon a finding that the circumstances of the matter merited a less severe penalty.

The application for leave to appeal was opposed on the basis that the intended grounds of appeal did not disclose any basis upon which the refusal by the Labour Court to interfere with the penalty imposed by the employer could be challenged or could be regarded as an error at law. Accordingly, and in short, it was argued that the appeal had no prospects of success.

At the hearing of the application, without abandoning the other grounds, counsel for the applicant restricted his argument to the last ground of appeal as one that might enjoy some prospects of success on appeal.

I pause to note, in passing, that counsel for the applicant was wise in not expending his energies on the first three grounds of the intended appeal.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

The second and third grounds of appeal are inter-related, not only because they are raised in the alternative but also because they seek to raise the same issue. This is in relation to the irregularity allegedly attendant upon the imposition of the penalty of dismissal.

It was alleged by the applicant, and denied by the respondent, that the Worker's Committee was not consulted before the penalty of dismissal was imposed.

For the purposes of this application, it is not necessary that I determine whether the Workers Committee was consulted or not before the applicant was dismissed. This is so because not only was this an issue that should have been properly brought in an application for review before the Labour Court, but, more importantly, it was never brought to the attention of the court, which, as a result, did not make any findings on it. Therefore, the court could not have erred as alleged or at all in respect of an issue that was not before it and one that it did not determine.

I now turn to the argument on the fourth ground.

Accepting as the correct position at law that an Appeal Court should be slow in interfering with findings of fact and the exercise of discretionary power by a lower court, counsel for the applicant submitted that this position does not hold for the Labour Court when exercising its appellate jurisdiction.

This is so, he argued, because the Labour Court is not an Appellate Court strictu sensu in that the enabling Act empowers it to hear matters brought before it on appeal, de novo. It is therefore not confined to determining the matter on the basis of the record before it but can lawfully act as a court of first instance. Further, he submitted that whilst the Labour Court has appellate jurisdiction, the Labour Act [Chapter 28.01] that grants it this jurisdiction also enjoins the court to infuse the equities of the dispute into the resolution of all matters brought before it - appeals included.

The argument by counsel for the applicant has no prospects of success on appeal.

This is so because the Supreme Court, has, in several cases, pronounced itself on the law regarding the exercise of appellate jurisdiction by the Labour Court in matters relating to penalties. This it has done notwithstanding the provisions of section 2 of the Labour Act [Chapter 28:01] which the applicant sought to rely on; see Mashonaland Turf Club v George Mutangadura 2012 (1) ZLR 183 (S); Innscor Africa (Private) Limited v L Chimoto SC06-12; Ajasi Wala v Freda Rebecca Mine SC56-16; and Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17.

BHUNU JA, writing for the court in Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17 had this to say:

“It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract. Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion. In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.”

It was not the applicant's argument that he will seek to have this Court reconsider its decisions in the cases cited above.

In an application for leave to appeal, the judge considering the application acts as a gate-keeper. The role of the judge is to keep out appeals with no prospects of success.

It presents itself very clearly to me that an application that raises a point that has already been determined by this Court, and has been determined against the very point that the applicant seeks to argue on appeal, is one such application that should not be allowed to pass - unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has some prospects of success in that regard.

The applicant has not indicated an intention to request this court to reverse itself.

On the basis of the foregoing, this application cannot succeed.

Regarding costs, I see no justification for these not to follow the cause.

In the result, I make the following order:

The application is dismissed with costs.

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.On the day following the hearing in this matter, the court issued an order dismissing ...

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.

On the day following the hearing in this matter, the court issued an order dismissing the appeal with costs, and indicated that the reasons for the order would follow in due course. These are the reasons.

FACTUAL BACKGROUND

The respondent is a statutory body established in terms of the Legal Practitioners Act [Chapter 27:07] (the 'Act'). It is a regulator of the legal profession in Zimbabwe. The appellant is a legal practitioner duly registered with the respondent.

In 2013, the Commercial Bank of Zimbabwe Limited ('CBZ Bank') sold a certain piece of land called Stand Number 543 of the remainder of subdivision D of the Grange Township to Mr and Mrs Jambo (hereinafter referred to as 'the purchasers') for US$68,411 inclusive of value added tax (VAT). CBZ Bank appointed Messrs Muskwe and Associates ('Messrs Muskwe') as its conveyancers in the Grange Project under which Stand Number 543 fell. The appellant is the principal of Messrs Muskwe and Associates.

The purchasers secured mortgage finance from the Central Africa Building Society ('CABS Bank') in the sum of US$54,911. On 19 December 2013, through the purchasers' legal practitioners, Messrs Wintertons, the appellant received a letter of undertaking from CABS Bank for the payment of the sum of US$54,911. This amount fell short of the required total by US$9,546, which was to be paid by the purchasers. On 12 February 2014, the purchasers paid US$8,753 to CBZ Bank instead of the full balance of US$9,546. CBZ Bank sent the US$8,753 back to the purchasers, indicating it would only accept the full purchase price. After the refund, the purchasers did not transmit the money to the appellant. The latter proceeded to effect transfer and registration of the property into the names of the purchasers on 3 April 2014 under Deed of Transfer 194/2014. This was before he had received the full purchase price from CABS Bank and the purchasers. The appellant acted on the basis of the undertaking by CABS Bank to pay US$54,911 even though it fell short of the purchase price by US$9,546. On 23 April 2014 CABS Bank honoured its guarantee and paid the sum of US$54,911 into the appellant's trust account. The appellant, however, did not promptly remit the amount to CBZ Bank.

As at 9 December 2014, the purchasers had not paid the full amount required of them.

The full purchase price of US$68,411 was eventually paid into the appellant's trust account. However, it had taken the appellant two years to secure the balance from the purchasers and pay it to CBZ Bank. This process was, however, not without its own rough patches. It appears that prior to 27 January 2016 the appellant and CBZ Bank discussed the payment of the amount held in the appellant's trust account. The appellant requested a grace period of up to 31 March 2016 to effect the required payment. CBZ turned the request down. On 27 January 2016 CBZ Bank gave the appellant seven (7) days' notice to effect full payment, failing which it would register a complaint against him with the respondent. On 15 February 2016, the Bank, through its legal practitioners, wrote to the appellant indicating that consequent upon his failure to comply with the directives and the demands of the letter of 27 January 2016, it was going to register a complaint with the respondent as well as institute legal proceedings against him. Subsequently, the Bank filed a complaint with the respondent on 8 March 2016.

Before this date, the appellant made part payment of US$20,000, on 5 February 2016, leaving a balance of US$48,411. The balance was paid in instalments of US$47,000, on 29 March 2016, and US$1,411, on 22 April 2016 - both after the complaint had been registered with the respondent.

The latter then filed an application with the Legal Practitioners Disciplinary Tribunal (the Tribunal') seeking the deletion of the appellant's name from the register of legal practitioners in terms of section 28(1)(i) of the Legal Practitioners Act [Chapter 27:07]. This would, effectively, mean that the appellant would be de-registered as a legal practitioner. The respondent averred that the appellant, by his conduct, in the course of his practice as a legal practitioner, was guilty of unprofessional, dishonourable, and unworthy conduct contrary to what was expected of him in terms of the relevant provisions of the Legal Practitioners Act and related Statutory Instruments. In particular, the respondent charged that the appellant:-

“(a) Failed to pay promptly to his client, funds that had been deposited in his trust account amounting to $68,411, when the money became due and payable;

(b) Withheld payment of the funds without lawful excuse; and

(c) Failed to produce, despite demand, proof that he, at all material times, held the said funds in his trust account.”

The appellant filed a counter-statement disputing the allegations against him. However, at the hearing of the matter before the Tribunal, he pleaded guilty to all the charges against him and was duly found guilty. He thereafter proceeded to address the Tribunal in mitigation but to no avail. The Tribunal imposed the penalty of deregistration.

Aggrieved at this penalty, the appellant noted this appeal on the following grounds, that I have taken the liberty to summarise:-

1. The Disciplinary Tribunal erred and misdirected itself in taking into account, and premising its findings on irrelevant, extraneous and manufactured facts;

2. The Disciplinary Tribunal erred and misdirected itself in the outright dismissal of the appellant's mitigation, and in finding that migratory (sic) circumstances were only relevant for the purpose of making an application for re-admission to the Registrar of Legal Practitioners, Notaries Public and Conveyancers.

3. The Disciplinary Tribunal erred and misdirected itself by insisting on the ultimate penalty in the face of weighty mitigating factors pleaded by him, including his long blame-free legal career, full restitution made, and demonstrated contrition;

4. The Disciplinary Tribunal erred and misdirected itself in failing to consider the concessions made by the respondent's legal practitioner, that the facts 'squarely' before it did not warrant the ultimate penalty.

5. The Disciplinary Tribunal misdirected itself by mis-reading the facts contained in the appellant's opposing papers which clearly indicated that the full purchase was done (sic) sometime in 2015.

These grounds of appeal, in my view, raise one issue for determination, which is, whether or not the Disciplinary Tribunal erred in imposing the ultimate penalty of striking out the appellant's name from the register of Legal Practitioners, Notaries Public and Conveyancers.

The appellant avers that the Disciplinary Tribunal relied on irrelevant, extraneous and manufactured facts. It is contended, through his first ground of appeal, that the judgment of the Tribunal demonstrates that it related to another person, not the appellant. The appellant, in his heads of argument, however did not motivate this ground of appeal nor did he make any further reference to it.

Accordingly, the first ground of appeal stands abandoned and will not be considered in this judgment.

WHETHER OR NOT THE DISCIPLINARY TRIBUNAL ERRED IN IMPOSING THE ULTIMATE PENALTY OF STRIKING OUT THE APPELLANT FROM THE REGISTER OF LEGAL PRACTITIONERS

The appellant avers that the penalty imposed against him by the Tribunal, for the offences that he faced, was excessive in the circumstances. He charges that the Tribunal, in arriving at its penalty, failed to properly weigh the mitigating circumstances of the case against the aggravating factors thereof. In his view, the court over-emphasised the latter.

The respondent, to the contrary, maintains the position that the Tribunal, in imposing the penalty in question, exercised its discretion in a judicious manner and properly ordered that the appellant's name be struck out from the Register of Legal Practitioners, Notaries Public and Conveyancers.

Given that the appellant pleaded guilty to all the charges laid against him, the respondent correctly submits that the issue to be determined is whether the Tribunal was correct in finding that the appellant was not a fit and proper person to continue practising as a legal practitioner, and, therefore, imposing the penalty that it did.

The appellant effectively pleaded guilty to having mis-appropriated trust funds.

It bears mention that the amount involved, despite having ultimately been transmitted to the client, was not insignificant. A look at the relevant cases and other authorities clearly suggests that courts of law take a very serious view of the abuse of trust funds by a legal practitioner. Further, that lawyers, as a class, generally hold themselves up to very high standards of honesty, integrity, and professionalism in the discharge of their legal duties. In the case of Incorporated Law Society Transvaal v Behrman 1977 (1) SA 904 (T)…, the court unequivocally stated that a practitioner who contravened the provisions relating to his trust account was guilty of unprofessional conduct and liable to be struck off the roll or suspended from practice. The court, in Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)…, expressed the same sentiments as follows:

“I deal now with the duty of an attorney in regard to trust money….,. Where trust money is paid to an attorney, it is his duty to keep it in his possession and to use it for no other purpose than that of the trust. It is inherent in such a trust that the attorney should at all times have available liquid funds in an equivalent amount. The very essence of a trust is the absence of risk. It is imperative that trust money in the possession of an attorney should be available to his client the instant it becomes payable.”…,.

Concerning the high standards that lawyers themselves have set up for themselves, this Court, in Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) had this to say:

“In the first place, lawyers, as a professional class, live by their own high code of ethics and their own moral standards.

Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs. Secondly, if legal practitioners, as a professional group, are to earn a respected position as guardians, not only of the public, but also private interest, then, every legal practitioner must live up to the principles of decency in the relationship of a trustee to the goods and monies entrusted to him by the person who has sought this protection. A legal practitioner who breaches this trust casts a shadow on the good name of the rest and also remains a danger to the unsuspecting public, unless his name is expunged from the register of legal practitioners; see, generally, in this regard, Law Society, Transvaal v Matthews 1989 (4) SA (T) at 394 B-396H.”…,.

It is therefore against the principles set out in the authorities cited above that the appellant's submissions, in impugning the 'ultimate' penalty that the Tribunal imposed on him, will be considered.

It is evident, from a reading of the judgment of the Tribunal, that it considered both the mitigating and aggravating circumstances of the case, and related to pertinent authorities, before imposing the penalty in question. The Tribunal stated as follows:-

“Turning to the sentence; in arriving at the appropriate sentence, the Tribunal takes into account the mitigating and aggravating circumstances as advanced by the respective legal practitioners.

The Tribunal takes note of the submissions by the respondent's counsel that the accused is 58 years old and was therefore 54 years old at that time of commission of the offence. He has been in practice for 33 years (29 years at the time of the commission of the offense). During this period, he has travelled the straight and narrow. He is suffering from high blood pressure and has been traumatised by the case. He paid the amount due to the complainant as far back as 2016 and there is no longer any prejudice to the complainant. The conviction should be considered as a speck on his otherwise colourless career. The respondent prayed that he be suspended from practice for a period of between 18 and 24 months wholly suspended for a period of five years on condition that he does not offend again. In addition, the Tribunal should order that the respondent does not, during the period of suspension, operate a trust account. In support of the proposed sentence, Mr Chinamora referred to The Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA), Kwazulu-Natal Law Society, Northern Provinces [2006] SCA 59 (RSA) where it was decided that the case did not warrant the ultimate sentence of de-registering the legal practitioners.

The applicant submitted, in aggravation, that the offence was a very serious one which reflects badly on the respondent's honesty and integrity and detracts from his fitness to continue practicing as a legal practitioner. The respondent's conduct has a negative impact on the integrity of the entire profession and should be visited with a befitting sanction which is de-registration. Mr Mutasa referred to the case of Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) at 390 C-E where the apex court confirmed the decision of the Tribunal to deregister Mr Chizakini for misappropriating trust funds.

As rightly submitted by Mr Mutasa, the proper approach to be taken in arriving at an appropriate sentence is set out in the Chizikani case (supra).”

In weighing the aggravating against the mitigating circumstances argued for the parties, the Tribunal found (correctly, in my view), the following to be particularly damning of the appellant:

“(i) That the appellant's submissions in relation to his mature age, the long and unblemished career spanning 30 years in the practice of law, and professionalism during that period 'cut both ways if not sharper, in aggravation.'

(ii) That with such credentials, and being the principal of his law firm, the appellant should have been more exemplary in his conduct;

(iii) That his transgressions were 'compounded' by the fact that he proceeded to effect transfer of the property to the purchasers without securing the entire purchase price, a circumstance that jeopardised the interests of the seller, since the balance of US$54,911 was paid into his trust account well after the transfer;

(iv) That the appellant thereafter failed, and with no reason given, to remit this and the other amount paid by the purchasers to CBZ Bank, only doing so after some two years, and even then, after demand, and in instalments;

(v) That, as of 28 August, 2015, after the full purchase price was paid by CABS Bank and the purchasers, the respondent's account reflected a balance of only US$35,332=21, against the total required amount of US$68,411, which showed that he no longer had the amount in his account when payment was required;

(vi) That, in this respect, no explanation was advanced by the respondent as to what had happened to the client's funds;

(vii) That the respondent, despite pleading guilty before the Tribunal, had up to that point exhibited lack of contrition through his persistence in defending 'the indefensible until the very last minute' and;

(viii) That the amount of trust funds abused by the appellant was in no way insignificant.”

It is my view that there is little, if anything, to fault in the Tribunal's analysis of the evidence before it, nor in the manner that it weighed the mitigating factors pleaded by the appellant, against the aggravating circumstances of the case, vis a vis the appellant's conduct as a whole. I further find the reasoning of the Tribunal, as outlined above, to be unassailable. The reasoning is in tandem with the plethora of authorities in our jurisdiction and beyond (supra), that make it very clear that a lawyer who abuses a client's trust funds risks the ultimate penalty of being de-registered as a legal practitioner.

Having found that the respondent's submissions in mitigation 'overlooked the shadow' cast by his conduct on the good name and integrity of the rest of the legal profession, the Tribunal then considered the consequences of the penalty that it went on to impose on the appellant. It, in this respect, cited the following text from the headnote in Die Prokureursode van die O.V.S v Schoeman 1997 (4) SA 588 (O)…,:-

“The consequences of an order of striking off are serious and far reaching. But, the facts usually determine the punishment, and, even the making up of a deficiency in trust moneys, deep remorse, and ignorance concerning book-keeping and basic business principles are not themselves sufficient to avoid a striking off order in all cases. Those are, however, all factors in mitigation of punishment which should be placed in the scales.”…,.

In applying the above to the circumstances of the case before it, the court found that the absence of an explanation by the respondent as to what happened to his client's money, coupled with his lack of remorse, exhibited a high degree of dishonesty. It also found that his plea of guilty to all the charges levelled against him was a clear admission that he had mis-appropriated the client's funds. This conduct, the Tribunal opined, demonstrated that the appellant was not a fit and proper person to continue in the practice of law.

Before finally imposing the penalty, the tribunal was fully cognisant of the fact that it was not to be lightly imposed. It was guided in this respect by the following remarks by HOLMES J…, in Incorporated Law Society, Natal v Naunde 1959 (1) SA 2 (N)…,:-

“In matters of this sort, the Court ever seeks to blend a measure of mercy with the justice of punishment, and would readily agree, in the present case, to an adjournment, or to a suspension of the respondent instead of a striking off, if some basis for such a course could be found.

But, unhappily, the paramount factor in this case is the large amount of deficiency, and this factor overrides the element of restitution - even if made.

In the result, we are of the opinion that our duty, painfully though it may be, is plain and we grant the order sought by the Law Society for striking off of the respondent's name, leaving the matter of restitution, if made, to stand as a point in favour of the respondent, if and when he should apply for the re-instatement of his name on the roll.”

As already noted, the Tribunal in casu also found that the 'deficiency' was not inconsiderable. In the result, the Tribunal's view was that the conduct 'attracted' nothing short of the ultimate penalty, which it went on to impose. It also ordered the appellant to pay the respondent's expenses in connection with the proceedings.

I find that there is merit in the respondent's submission that the Tribunal judiciously exercised its discretion, after a proper consideration of the facts of the case and relevant authorities, in imposing the penalty that it did on the appellant. The court in Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A)…, reasoned that the exercise of the court's discretion in matters of this nature involves the weighing up of the conduct complained of against the conduct expected of an attorney, and, consequently, making a value judgment.

There is nothing, in my view, to suggest that the value judgment that the Tribunal made, against the facts and circumstances of the case before it, was flawed in any way.

It should be noted, in addition, that the discretion enjoyed by a court of first instance in relation to a penalty that it imposes in cases involving the misappropriation of trust funds by a legal practitioner, is not one that an Appeal Court may lightly interfere with…,.

The Appeal Court may only do so where it finds that the court of first instance arrived at its conclusion capriciously, exercised its discretion injudiciously, or relied upon a wrong principle of law; see Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, where it was stated as follows:

“…,. 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 discretion in substitution, provided always (that it) has the materials for so doing.”

Taking the foregoing into account, I am satisfied that, in arriving at the penalty that it imposed, the Tribunal adopted the right approach as set out above. This was after it had properly weighed the aggravating against the mitigating circumstances of the case. The court a quo's ultimate finding, that the mitigation pleaded was outweighed by the aggravating circumstances of the case, is, in my view, not to be faulted.

DISPOSITION

In light of the foregoing, the court found that no basis had been established for interfering with the discretion exercised by the Tribunal in imposing the ultimate penalty of striking the appellant's name off the register of Legal Practitioners, Conveyancers and Notaries Public.

The appeal was accordingly devoid of merit, hence, the order made by the court dismissing the appeal with costs.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment....,.

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

The respondent's failure to challenge the question of liability amounts to an admission of guilt.

It was therefore grossly irrational for the court a quo to find the respondent not guilty as charged in circumstances where he was virtually pleading guilty to the charge.

It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract.

Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion.

In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.

The words of ZIYAMBI JA, in Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S), are worth recounting where she says:

“In the exercise of their powers, in terms of section 12B(4) of the Labour Act, the Labour Court and Arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of misdirection or unreasonableness, on the part of the employer, in arriving at the decision to dismiss an employee, an Appeal Court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of misconduct which goes to the root of the contract of employment.”

It is an implied term of every employee's contract of employment not to make unauthorised disclosure of his employer's secrets. The refusal by the respondent, in the cross-appeal, to sign the declaration of secrecy was, therefore, a fundamental breach of his implied term of employment in this respect.

An employer cannot be blamed for offloading an employee who refuses to be bound not to disclose his trade secrets. The need for confidentiality in an employer/employee relationship cannot be over-emphasized. For that reason, it cannot be said, by any stretch of the imagination, that the appellant in the cross-appeal acted irrationally or unreasonably when it terminated the contract for wilful refusal to sign the declaration of secrecy. No sane employer would be comfortable employing an employee whom he cannot trust to keep his secrets.

In the result it is ordered that:

1. The cross appeal is allowed with costs.

2. The judgment of the court a quo is partially quashed to the extent that it set aside the respondent's conviction on the charge of wilful disobedience of a lawful order, and, consequently, paragraph (4) of the operative part of that judgment is set aside and substituted as follows:-

“The appeal is allowed with costs, the arbitral award is set aside in respect of the penalty of a final written warning imposed upon the respondents, and, consequently, the respondents' dismissal from employment is confirmed.”

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court, which upheld the decision of the Appeals Board of the National Employment Council Banking ("NEC") to the effect that the charge preferred against the respondent was inappropriate and that he had been unfairly dismissed.FACTUAL BACKGROUNDThe respondent was employed ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as an Administrative Clerk and was also the chairperson of the workers committee. The management of the appellant and the workers' committee had been in a dispute over salary increments of the employees for some time. In August 2010, the dispute was referred to a conciliator, who, in September 2010, issued a Certificate of No Settlement.

Thereafter, between 8 and 15 September 2010, the respondent sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees' salaries. He also stated that the workers' committee had decided to embark on a collective job action to press their interests. The emails were sent through the appellant's IT facility to more than ten recipients at a time.

On 23 September 2010, the respondent was charged with misconduct for contravening section 11(1) of S.I.273 of 2000 (“the Code"), it being alleged that he had acted in a manner which was inconsistent with the fulfilment of the express or implied conditions of his contract.

The basis of the charge was that the respondent had generated offensive emails to a group of staff members against the Bank's standing policy contained in its Information Security Management Policy Document (“IT Policy Document”), particularly sections 4.4 and 4.4.1.

It was also alleged that the contents of the emails were inflammatory and contained confidential information. Further, that the responses that the e-mails generated from staff members who received them ended up congesting the network, thus, interrupting normal business communication in the Bank.

A disciplinary hearing was held in October 2010.

The respondent was found guilty of the misconduct with which he was charged and dismissed from his employment. He appealed to the Grievance and Disciplinary Committee whose proceedings ended in a deadlock. The matter was then referred to a second Grievance and Disciplinary Committee which also ended in a stalemate.

Thereafter, the matter was placed before the National Employment Council Banking Appeals Board, which held that the conduct complained of did not constitute an offence in terms of the charge that had been preferred against the respondent. Accordingly, it held that the charge preferred against the respondent was inappropriate. It stated, further, that although the respondent exceeded the limit of the number of emails allowed by the respondent's IT Policy Document, thereby breaching the appellant's standing policy, the e-mails were neither inflammatory nor offensive, and that no confidentiality had been breached.

It also stressed that the respondent's conduct was in pursuit of a right to represent workers and that the emails were meant to call for collective job action, or, at least, put pressure on the appellant to accede to the workers' wage demands. Consequently, the National Employment Council Banking (NEC) Appeals Board ordered that the respondent be reinstated to his former employment without loss of salary or benefits.

Significantly, it did not order an alternative of damages in lieu of reinstatement in terms of section 89(2)(c) of the Labour Act [Chapter 28:01].

Aggrieved by the decision of the National Employment Council Banking (NEC) Appeals Board, the appellant appealed to the Labour Court. It averred that the Appeals Board erred in failing to find that a Category D offence had been committed, that the penalty of dismissal was appropriate in the circumstances, and that, alternatively, and in any event, it erred in failing to afford to the appellant any alternative to reinstatement.

Per contra, the respondent submitted that the appellant had failed to establish the conduct that allegedly constituted the offence in question. He also contended that the National Employment Council Banking (NEC) Appeals Board was not mandated to give an alternative for damages in lieu of reinstatement. Further, that it was not bound by section 89(2)(c) of the Labour Act because that provision only relates to the Labour Court in the exercise of its functions and not internal structures such as the National Employment Council Banking (NEC) Appeals Board.

The court a quo took the view that as the employees were considering going on strike over the wage dispute, the respondent acted within the bounds of his official duties as the chairman of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court however stated that although the respondent may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal.

Consequently, the appellant 's appeal was dismissed.

The appellant was aggrieved by the decision of the court a quo and appealed to this Court on the following grounds, viz:-

1. Having come to the conclusion that the respondent's conduct was in breach of the appellant's IT policy, in that he had sent emails to more than the maximum permissible number of recipients at a time, the court a quo erred in concluding that such conduct did not amount to a dismissable misconduct;

2. The court a quo erred in failing to appreciate that the respondent's conduct, in violating the standing regulation, was a breach of his privileges as the representative of the workers' committee and could therefore not be excused;

3. Having come to the faulty conclusion that the respondent was to be reinstated, the court a quo erred in not providing for an alternative of damages as is required under the statute.

I will now consider the grounds of appeal in light of the evidence before the court.

Whether the court a quo erred in concluding that the misconduct, of sending emails to more than the maximum permissible number of recipients at a time, did not amount to dismissable misconduct

It is pertinent, in order to determine this issue, to consider the charges preferred against the respondent.

He was charged with contravening section 11(1) of S.I. 273/2000, namely:

"Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under Category 'A', 'B' or 'C'."

The particulars of the charge were stated as follows:-

"Between 8 and 15 September 2010, you generated some offensive emails to a group of staff members against the Bank's standing policy on Information Security Management Policy document section 4.4 and 4.4.1. Besides the contents of the email being inflammatory and confidential, the responses you asked from staff members ended up congesting the network affecting normal business communication in the process."

The first ground of appeal addresses the finding of the National Employment Council Banking (NEC) Appeals Board, expressed thus in its judgment:-

"The Appellant obviously exceeded the limit of number of recipients allowed by the bank IT policy. The limit was 10 people per email."

This finding was upheld by the Labour Court which described the respondent's conduct in this respect as amounting to him having "gone overboard by breaching (the) Respondent's standing policy."

Counsel for the appellant took the view that having found that the respondent exceeded the maximum number of 10 emails at a go, the National Employment Council Banking (NEC) Appeals Board, and the court a quo, erred in not finding him guilty.

Counsel for the respondent, on the other hand, submitted that the particulars of the charge did not speak to exceeding the permitted number of e-mails to be sent at a time. Accordingly, he contends further, the respondent could not have been found guilty of a charge that had not been preferred against him.

In response, it was the appellant's submission that charges are crafted by lay persons and not lawyers. To this end, he contended that the respondent ought not to be spared a conviction on the basis of what was in effect a technicality, given that labour matters generally ought not to be determined on the basis of technicalities.

I am persuaded by the respondent's submissions.

He clearly was not charged with violating any standing policy forbidding the dispatch of more than 10 emails at a time using the appellant's server. As correctly contended for him, the appellant's IT Policy Document specifically provides for this infraction in its clause 4.4.5.

A closer look at the relevant portions of the clauses which the respondent was accused of breaching, that is 4.4 and 4.4.1 is instructive.

Clause 4.4 proscribes the accessing or distribution of inappropriate or offensive material which may harm the reputation of ZB Financial Holdings Ltd "both internally and externally.”

Clause 4.4.1 underlines the fact that its communications systems are for business purposes only, and states that any employee found abusing such facilities would be subjected to disciplinary action in accordance with the applicable Code of Conduct.

These provisions, and the charges based on their alleged violation by the respondent, clearly do not speak to the specific issue of dispatching more than 10 emails at a time.

While it may conceivably be argued that sending more than 10 e-mails at a time amounts to abuse of the appellant's electronic communication system, the fact that the latter saw it fit to remove this particular conduct from the ambit of abuse in general, in my view, evinces the intention to keep the two offences separate and distinct.

Clearly, therefore, the National Employment Council Banking (NEC) Appeals Board determined this aspect of the dispute on the basis of a matter not properly before it.

The respondent could not be found guilty of sending an email to more than 10 people at a time as that was not the charge that had been preferred against him, nor did it form the particulars of the charge the respondent was called upon to answer.

This finding stands notwithstanding that the respondent may, and appears to have, indeed acted contrary to the instruction as provided under 4.4.5 of the Information Security Policy.

That, however, was not the charge that he was facing. It was therefore not open to the National Employment Council Banking (NEC) Appeals Board to substitute the charge put to the respondent with another charge.

The National Employment Council Banking (NEC) Appeals Board therefore misdirected itself.

In its turn, the Labour Court, by upholding the same finding by the Appeals Board, also fell into error.

The law is clear, that, it is not open to the court or a tribunal to substitute a charge laid against an employee with another one and proceed to make a determination based thereon.

There is authority that places this type of action outside the realm of what may be termed a technicality on the basis of which a labour matter should not be determined.

The remarks of the learned judge in Zimasco (Pvt) Ltd v Chizema 07-SC-038-2007 (2) ZLR 314 (S) (SC38-07) are apposite.

In that case, the court had occasion to deal with the question as to whether the failure by the court to alter a charge amounted to deciding the matter on a legal technicality.

It held as follows at para 10 and at 317A-C;

"It should be noted that it clearly was not the responsibility of the Labour Court to 'amend the charge sheet' in this matter by substituting the charge preferred against the Respondent with another one. The court is not there to formulate charges or cases for litigants. In cases of this nature the court's brief is to determine, on the basis of evidence placed before it, whether or not a case has been proved against the Respondent."…,.

The same point was stressed in Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd 13-SC-031 (SC31-13)…, and 2019 (2) ZLR 10 (S) where the court stated as follows…,:-

"It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.

The reason for this is obvious, viz:

The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of section 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice."…,.

The above remarks are instructive in this matter, and, by parity of reasoning, apply equally to a case where one is acquitted of an offence with which they were not charged.

The decision of the court a quo, that the appellant could not be dismissed for misconduct that in fact did not form the basis of the charge levelled against him, is, therefore, of no force or effect.

It follows from the foregoing that the appellant's first ground of appeal lacks merit on two fronts:

(i) Firstly, it seeks to sanitise the improper substitution by the court a quo of the charges that the appellant brought against the respondent with a new charge.

(ii) Secondly, the ground of appeal purports to impugn a decision of the court a quo, that, as I have determined, was improper and of no force or effect.

The first ground of appeal is accordingly dismissed.

Whether the court a quo erred in failing to appreciate that the Respondent's conduct, in violating the standing regulations, was a breach of his privileges as the representative of the Workers' Committee and could therefore not be excused

Counsel for the appellant correctly does not dispute that the respondent, as chairman of the Workers' Committee, had a right to champion the cause of the workers by, among other means, communicating with them through use of requisite media.

Nothing, therefore, turns on the respondent's citation of various statutory and Constitutional provisions that protect and emphasize the importance of workers' rights being championed by and through their chosen representatives.

Counsel for the appellant contends, however, that in exercising this entitlement, the respondent did not have the right to breach the law - in this case the standing policy in question.

There is merit in this contention.

The right to champion workers rights is, in my view, not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated: in this case, by the relevant Code of Conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained.

It falls to reason, therefore, that the respondent would not be able to hide behind his position as the chairperson of the workers' committee should the conduct alleged against him be proved.

In upholding the National Employment Council Banking (NEC) Appeal Board's ruling on this point, the court a quo took the view that the respondent did not abuse the appellant's facilities for personal gain but did so because he had a right, indeed a duty, to communicate to fellow employees the developments on the wage dispute. Accordingly, his actions, albeit violating standing instructions, did not merit the harsh penalty of dismissal.

The court found no fault with the respondent's use of the appellant's email facility, stating that he had, in the past, used the same medium of communication. Accordingly, in the court a quo's view, the respondent's conduct, as alleged, was proper.

The view taken by the court a quo does not find support in the law, however.

In Chidembo v Bindura Nickel Corporation 2015 (2) ZLR 25 (S), an employee who had disclosed confidential information sought to argue that although the information had been unlawfully obtained, the disclosure was lawful as he was the chairperson of the Workers Committee.

The court, in rejecting this submission, reasoned as follows…,:-

“The disclosure of confidential information, without the requisite authority of the employer, remained an unlawful act in terms of the Respondent's code.

The fact that the Appellant committed the misconduct while performing his role as the workers committee chairperson is of no moment. This is because his status as a workers' committee chairperson did not turn what was unlawful into a lawful act. It became unlawful the moment he disclosed the information without the authority of the Respondent.

An employer is perfectly within its right to put in place measures that will protect confidential and sensitive information relating to its employees and operations against unlawful disclosure. Employee salary scales fall into this category of information. Given that the Code of Conduct in casu expressly provides that it is only the employer who can authorise any disclosure by any employee of such information, the words of CHIDYAUSIKU CJ, in the case of Zimbabwe Electricity Supply Authority v Moses Mare 05-SC-043, SC43-05, are apposite:

'In my view, members of the Workers' Committee are not a law unto themselves…,. In defending the rights of the workers, a member of the workers committee is enjoined to observe due process.'"…,.

These remarks are, in my view, entirely apposite in casu.

The view taken by the court a quo, that a workers' committee member is at liberty to violate the employer's Code of Conduct as long as he does so in his exercise of the right to champion the workers rights, is clearly wrong and not sustainable at law.

What is to be determined next, therefore, is whether or not the respondent did violate the specified standing policies?

Further, whether if he did so, such conduct constituted the dismissible misconduct that he was charged with?

Earlier on in this judgment I paraphrased the import of relevant portions of the clauses which the respondent was accused of breaching.

Clause 4.4 of the IT Policy Document proscribes the accessing or distribution of inappropriate or offensive material which may harm the reputation of ZB Financial Holdings Ltd both internally and externally. Clause 4.4.1 stresses that the appellant's communications systems are for business purposes only, and, that abusing them was a punishable offense in accordance with the applicable Code of Conduct. Examples of such abuse are indicated in the clause as including, but not limited to, the transmission by email of information considered "highly confidential” such as confidential personal data of any member of staff; private business activities; and transmission of any such material that may be deemed offensive or abusive.

My reading of the letter setting out the acts or conduct that formed the basis of the misconduct charge levelled against the respondent, (set out above), is that these were:

(i) Firstly, the generation and dispatch, by him, to “a group of employees”, of emails that contained confidential material, in addition to being offensive and inflammatory.

While the considerable number of addressees of the e-mails is evident from the record, the appellant asserts, and is not challenged on it, that the recipients totalled 378.

(ii) Secondly, the appellant took issue with part of the content of such emails, which successfully solicited responses that ended up congesting the network and affected normal business communication within the Bank.

It is not disputed that the respondent sent the emails in question. Nor does the respondent deny that he did not seek the authority of the appellant before doing so. He in fact conceded as much during the disciplinary hearing.

The appellant charges that the emails, among other content, disclosed confidential information relating to the salaries earned by fellow employees.

The respondent however disputes that he sent information that could be classified as confidential since the table that he sent, filed on p170 of the record, did not specify the names of the senior staff managers who benefitted from defined levels of salary increments indicated in the table.

In any case, the respondent argues further in his heads of argument, the recipients of the information had a "legitimate interest in knowing the salary scales” pertaining at the appellant's business.

The court a quo was persuaded by the respondent's submissions and took the view that no evidence was placed before the court to substantiate this allegation. The appellant, on the other hand, contends that a glance at the table on p170 of the record would easily enable the recipients of the email concerned to identify the affected senior employees.

I am persuaded by the appellant's submissions in this respect.

It would not be unreasonable to assume, as the appellant contends, that the recipients of the information contained in the table in question would know who of the junior and senior managers fell into which grade and would therefore be earning the respective salaries specified therein.

The appellant submits, in this respect, correctly in my view, that the respondent could have made the point that certain increases had been effected, and even relied on the percentages quoted, without divulging the actual salaries of fellow employees.

Against this background, I find, contrary to the view taken by the court a quo, that the appellant did place before the court evidence substantiating the charge that the respondent abused its IT systems and disclosed confidential information relating to the salaries of certain employees, in violation of clause 4.4.1 of its IT Policy Document.

The appellant alleged that the emails generated by the respondent were considered by it to be, in addition, inflammatory and offensive. The court a quo opined that the particular e-mails or the exact phrases that were alleged to be offensive or inflammatory were not specified in the letter containing the charges. Further, that no evidence was placed before the court to substantiate these allegations.

The court's observations, in my view, cannot be faulted, particularly if regard is had to the respondent's accurate assertion that this particular matter has not been pursued by the appellant in this appeal.

I will, accordingly, give no further consideration to this charge.

The appellant, in its heads of argument, has not expanded on aspects of the charges relating to the alleged abuse by the respondent of the appellant's IT policy for private business nor has anything further been said about the alleged clogging of the appellant's electronic communication system.

Paragraph 4.4.1 of the policy document creates the special misconduct of abuse, by an employee, of its company-facilitated communication media and services. It further provides that any employee found abusing the services in question shall be subject to disciplinary action in accordance with the Code of Conduct. The misconduct is clearly characterised as one of commission.

I take the view that, in the circumstances at hand, there is a conceptual difference between doing an act that contravenes a laid down policy of the employer and failing to obey a standing instruction or order of the same employer.

I find, therefore, that the act with which the respondent was charged was not provided for under Categories 'A' 'B' or 'C' of the appellant's Code of Conduct.

What falls to be determined next is whether the conduct complained of was properly characterised as "serious” and inconsistent with the terms of the respondent's contract of employment.

In Wala v Freda Rebecca Gold Mine SC56-16, the court had occasion to define the terms "serious act of misconduct.” It stated as follows…,:-

“In Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S), McNALLY JA approved of the dictum by LORD JAMES of Hereford in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on, at 218H-219A, to say:

'I consider that the seriousness of the misconduct is to be measured by whether it is inconsistent with the fulfilment of the express or implied conditions of his contract. If it is, then it is serious enough, prima facie, to warrant summary dismissal. Then, it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.'

The seriousness of a misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the Appellant was found guilty of went to the root of the contract of employment, in that it had the effect of eroding the trust the employer reposed in him, as found by the arbitrator, could it still be said that the misconduct was trivial to warrant a penalty of dismissal?

The Appellant worked against company policy.

It is a serious act of misconduct for an employee to deliberately act against the employer's policies to advance personal interests."…,.

It is argued for the appellant –

(i) Firstly, that the conduct in question went to the root of the respondent's contract of employment, and, not least, because the respondent had breached a confidentiality arrangement that he had entered into with the appellant.

(ii) Secondly, it is argued that compliance with the IT policy of the appellant that the respondent breached was cast in peremptory terms. Accordingly, the policy had to be obeyed without reservation: see Messenger of the Magistrates' Court, Durban v Pillay 1952 (3) SA 678 (A).

I find that there is merit in the appellant's submissions.

The appellant proved that the respondent worked against company policy by abusing its company-facilitated communication media and services.

As properly highlighted in Chidembo v Bindura Nickel Corporation 2015 (2) ZLR 25 (S), an employer is perfectly within its right to put in place measures that will protect confidential and sensitive information relating to its employees and operations against unlawful disclosure.

Employee salary scales are confidential information and should not easily be disclosed.

The respondent therefore disclosed other employees' salaries through abuse of the appellant's communications media and services.

I find, accordingly, that this particular misconduct was both serious and inconsistent with the fulfilment of his contract of employment. The same misconduct also properly fell within Category 'D' of the appellant's Code of Conduct.

I will now consider the propriety of the penalty of dismissal that was imposed on the respondent.

The appellant argues, in this respect, that the decision to dismiss the respondent was properly reached on the basis that the appellant, as his employer, took a serious view of the misconduct in question. Further, that the appellant, in taking such a serious view of the misconduct, was not shown to have acted unreasonably.

Accordingly, there was no cause to interfere with the decision that flowed from the view taken by the appellant.

The appellant relies for this argument on the case of Circle Cement (Pvt) Ltd v Nyawasha 03-SC-060 (SC60-03) where the following is stated…,:-

"Once the employer had taken a serious view of the act of misconduct committed by the employee, to the extent that it considered it to be a repudiation of the contract which it accepted, by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee."…,.

The appellant argues, lastly, that the penalty of dismissal was competent since it was provided under, and in terms of the Code of Conduct.

I find merit in these submissions.

The respondent, as submitted for the appellant, abused its communications media and services in order to disclose, not just the salary scales of the junior and senior employees falling into the categories listed, but also the actual salaries awarded for each grade. This was in addition to an indication of the percentages by which the salaries of employees in the grades listed were raised.

As the appellant correctly contends, the respondent could have simply shown these percentages and not the actual salaries of the affected employees. There is therefore merit in the submission by the appellant that the respondent breached his privileges as a workers committee representative through conduct that violated the IT policy of the appellant.

Clearly, his being a workers' committee representative did not convert an unlawful act into a lawful one.

The respondent, in any case, has not shown that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted: see Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S).

No basis has, accordingly, been established for interfering with the penalty of dismissal.

The appellant's second ground of appeal therefore has merit and is hereby upheld.

This finding renders the appellant's last ground of appeal irrelevant to the determination of this appeal.

DISPOSITION

In light of the foregoing, I find that the appeal has merit and ought to succeed.

In the result, it is ordered as follows:-

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

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

“(a) The appeal is allowed with costs;

(b) The Respondent shall stand dismissed from his employment with the Appellant with effect from 26 October 2010, the date of his initial dismissal."

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is hereby set aside and substituted as follows:

(i) The appeal is dismissed with costs.

(ii) The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course. These are the reasons.

BACKGROUND

The appellant was employed by the respondent as a Stores Clerk. On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the Stores Book. After the disappearance of the pump, the co-employee was convicted of theft. The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.

The matter was referred to the relevant National Employment Council and then to an arbitrator. The latter referred the case back to the respondent's Disciplinary Committee to rehear the matter. The Disciplinary Committee found the appellant guilty of theft and that decision was confirmed by the respondent's Appeals Committee.

On appeal to the National Employment Council, it was ordered that the appellant be reinstated.

The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

The Labour Court found the appellant not guilty of theft on the basis of what it regarded as purely circumstantial evidence. Instead, it found him guilty of negligence because of his apparent admission to that effect in the proceedings before the Disciplinary Committee. The court took the view that negligence was a competent verdict on a charge of theft. It also found that the appellant's negligence had resulted in prejudice to the respondent, and, therefore, constituted a grave offence warranting dismissal for a first offence. The court set aside the conviction of theft and substituted a conviction of negligent performance of duty resulting in loss to the employer. It then confirmed the penalty of dismissal.

The appellant now seeks an order for his reinstatement or damages in lieu thereof. His grounds of appeal are threefold:

(i) That the applicable Code of Conduct only permits dismissal for negligence following two prior warnings;...,.

DISMISSAL WITHOUT PRIOR WARNINGS

Insofar as concerns the penalties that may be imposed for proven acts of misconduct, the Code of Conduct is very clear and specific as to what may or may not be done. By virtue of section 5(6)(b):

“An employee may only be dismissed by the commission of an act of misconduct for which the appropriate penalty, in terms of this Code, is dismissal.”

In relation to the offence of negligence, specified in item B(4)(b) of the Schedule, a first offence calls for a written warning and a second offence invites a last written warning. It is only the commission of a third offence of negligence that attracts the drastic and ultimate penalty of dismissal.

The record in casu shows that the appellant was given a “valid warning” in 2007. However, it is not clear whether this was a first or second warning or whether it was one given in writing. Moreover, there is no indication as to whether this warning was for negligence or some other offence.

Thus, even if it were to be accepted that negligence is a competent verdict on a charge of theft, and that there was clear evidence of negligence on the part of the appellant, the penalty of dismissal imposed by the Labour Court was clearly ultra vires the Code of Conduct and therefore invalid.

Again, the court appears to have disregarded the requirements of the Code of Conduct and thereby committed a further fatal error.

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

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

The background facts are as follows:

Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the GMB held a strategic planning workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those eligible to attend the workshop were divisional heads and departmental heads. Officers below departmental heads could also attend the workshop if invited.

Murawo was neither a divisional head nor a departmental head.

On 5 March 2004, Murawo attended the workshop and presented his paper. However, it later turned out that Murawo's attendance at the workshop had not been authorised by the GMB directorate. He was, therefore, asked to leave the workshop.

On 6 March 2004, Murawo left the workshop and checked out of the hotel, but remained within the hotel premises because he had a cheque to give to Mrs Zemura (“Zemura”), the GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB directorate.

Consequently, the directorate called upon Mhonde, Murawo's head of department, to ensure that Murawo left the hotel premises. Subsequently, Murawo left Troutbeck Inn after giving Zemura the cheque that he was supposed to give her.

Thereafter, on 8 March 2004, Murawo was suspended without pay and benefits on the ground that he had committed two acts of misconduct in terms of the GMB Code of Conduct (“the Code”). In relevant part, the letter of suspension, written by Mhonde, reads as follows:

“On Wednesday the 3rd of March 2004, you communicated to me that the Marketing Director had invited you to the Strategic Planning Workshop. This, however, turned out to be untrue.

On Saturday morning, at about 08.30am, on the 6th March 2004, I told you to leave the Troutbeck Inn immediately as you were not invited to the meeting. However, up to lunchtime you were still at the premises and now purporting to have been tasked by the A/CEO to discuss issues related to workers with the Union representatives, Mr Munodawafa and Mr Mhunza, and present them in the seminar. This also turned out to be untrue.

Given the scenario explained above, Management has decided that you be suspended without pay and benefits with immediate effect, and you are being charged in line with the GMB Code of Conduct as follows:

1. Category I section 1: 'Insubordination – wilful and unreasonable disobedience of a lawful order from a superior'.

2. Category I section 5: '…, activities inconsistent with the express or implied condition of his contract of employment.'…,.

In keeping with the provisions of our Code of Conduct you are required to reply in writing answering to the above charges…,. Your reply must, of necessity, cover the following aspects:

(a) Admit or deny the charges.

(b) Facts to be taken into account if you admit the charges.

(c) If you deny the charges, offer an explanation of the basis of your defence…,.”

On 9 March 2004, Murawo replied to the letter of suspension. His letter, in relevant part, reads as follows:

“I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that, since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago.

I prepared a document for presentation. Initially, the presentation was short and just a small section of the presentation of the Engineering Department. I, however, developed a longer presentation which I thought could be incorporated in the Engineering Report. I thought I was contributing to the organisation's cause. I did not know that in doing so I was contravening any section of the GMB Code of Conduct.

Therefore, if at all I contravened category I section 1 and 5 of the Code, the contravention was not wilful.

When I was excused from the activities of the 6th of March 2004, I checked out of the hotel. I, however, realised that I had forgotten to give a cheque I had been asked to bring to Mrs Zemura. As the morning session had already started, I thought it was not wise to disturb the session. I waited for an opportune moment to give the cheque to Mrs Zemura. That moment presented itself at lunchtime and I duly handed over the cheque to Mrs Zemura. At the same time, some apples and potatoes I had ordered away from the hotel, after checking out, were only delivered to me around the same time. I then left for Harare…,.”

On 18 March 2004, Murawo appeared before a disciplinary hearing committee which found him guilty on both counts, and recommended his dismissal. He was subsequently dismissed with effect from the date of his suspension, i.e. 8 March 2004.

Thereafter, on 3 May 2004, Murawo appealed to the Acting Chief Executive Officer (“Muvuti”) against the dismissal. In that appeal he alleged that he had attended the workshop because Mhonde had indicated to him that he (Mhonde) would be comfortable if he (i.e. Murawo) attended the workshop and presented his own paper as an addendum to his (i.e. Mhonde's) report. He also denied being ordered by Mhonde to leave Troutbeck Inn.

Nevertheless, on 30 May 2004, Muvuti dismissed the appeal.

Aggrieved by that decision, Murawo appealed to the Labour Court. After hearing evidence and considering written submissions filed on behalf of the parties, the Labour Court allowed the appeal in respect of the first count, i.e. the count alleging “wilful and unreasonable disobedience of a lawful order from a superior”, but, dismissed the appeal in respect of the second count, i.e. the count alleging that Murawo committed “activities inconsistent with the express or implied condition of his contract of employment.”

Dissatisfied with that result, Murawo appealed to this Court....,.

The main issue in this appeal is whether Murawo was properly found guilty of “activities inconsistent with the express or implied condition of his contract of employment.”

However, before dealing with that issue, I would like to consider a submission by Murawo's counsel in his heads of argument.

The submission was that the Labour Court erred in its interpretation of the act of misconduct specified in section 5 of category I offences, and that, in terms of the eiusdem generis rule of statutory interpretation the conduct complained of by the GMB does not constitute the act of misconduct specified in section 5.

The act of misconduct specified in section 5 reads as follows:

“Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied condition of his contract of employment.”

As already indicated, Murawo was charged with “activities inconsistent with the express or implied condition of his contract of employment.”

The submission by Murawo's counsel was that the activities inconsistent with the express or implied condition of an employee's contract of employment, envisaged in section 5, must be activities in the same genus or class as incitement, intimidation and indulging in disorderly behaviour.

The learned author, GAIL-MARYSE COCKRAM, states the eiusdem generis rule as follows, at p153 of her work, The Interpretation of Statutes 3ed:

“Where a list of items which form a genus or class is followed by a general expression, the general expression is, in the absence of a contrary intention in the statute, construed eiusdem generis to include only other things of the same class as the particular words.”

I should now determine whether the eiusdem generis rule applies to the interpretation of Employment Codes of Conduct.

I do not think it does.

I say so because, in general, Employment Codes of Conduct are not drafted with the same expertise and precision required for the drafting of statutes. Almost invariably, Employment Codes of Conduct are drafted by laymen with little or no knowledge of law.

However, even if the eiusdem generis rule applied to Employment Codes of Conduct, I am of the view that the rule should have no application in the present case because it would lead to an absurdity. It would mean that “activities inconsistent with the express or implied condition of his contract of employment” which are in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour” would constitute acts of misconduct, whilst other “activities inconsistent with the express or implied condition of his contract of employment”, which are not in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour”, which could be more serious activities, would not constitute acts of misconduct.

In any event, the eiusdem generis rule is not a rule of general application, and has to be applied with caution.

This point was made by SOLOMON CJ, in Rex v Nolte 1928 AD 377…, where the learned CHIEF JUSTICE said:

“Moreover, the rule itself is one that has to be applied with caution, and is not of general application. Thus, LORD ESHER, in Anderson v Anderson (1895 1 QB 752) in commenting upon the rule, said:

'I am not surprised to find that the modern tendency of the Courts has been to construe general words in their ordinary sense'…,.”

Similar views were expressed by BARON JA in S v Makandigona 1981 (4) SA 439 (Z AD)…, as follows:

“It must be remembered that the eiusdem generis rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words. Thus, Craies on Statute Law 7ed says at 181:

'The eiusdem generis rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being what it is, a mere presumption, in the absence of other indications of the intention of the legislature.'”

In the circumstances, I am satisfied that the Labour Court did not err in its interpretation of the act of misconduct specified in section 5 of Category I offences. I am also satisfied that the conduct complained of by the GMB constitutes the act of misconduct specified in section 5.

I now wish to determine whether Murawo was properly found guilty of the act of misconduct specified in section 5.

I have no doubt in my mind that he was.

In the Labour Court, four people gave evidence and were cross-examined. These were Murawo, the GMB Marketing Director (“Makwenda”), Mhonde, and Zemura.

Murawo alleged that he attended the workshop at Troutbeck Inn because he had been invited to do so by Mhonde. That allegation was denied by Mhonde, who said that Murawo had told him that he had been invited to the workshop to present his report by Makwenda. On the understanding that Makwenda had invited Murawo to attend the workshop, Mhonde authorised Murawo's travel arrangements. Makwenda denied that he had invited Murawo to the workshop.

Zemura said that although initially Murawo was not part of the group of people going to attend the workshop he subsequently told her that he had been asked to attend the workshop by Mhonde, and present his report. Acting on that information, she booked him into the hotel.

In his judgment, the Senior President of the Labour Court said the following at pp 24-25 of the cyclostyled judgment (judgment no. LC/H/51/2006):

“On the issue of inconsistent conduct, I am persuaded to agree with the respondent's submissions that the appellant lied and conducted himself in a manner not befitting an officer of his status.

The first lie relates to the issue of who actually invited the appellant to the workshop.

I do not believe that Mr Mhonde ever invited the appellant. The appellant would have said so in his response to the allegations contained in the letter of suspension. Instead, the appellant told the truth by stating the following:

'I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago. I prepared a document for presentation….,.'

The above constitutes the truth on the issue of invitation. Any departure from the above cannot be true.

If that were not the case, I would have expected the appellant to go further and say: 'You verbally invited me to present my ten page report as an addendum to yours'.

The appellant does not say so because he knows that he had told his boss that Mr Makwenda had invited him. That was a lie.”

And at p26, the Senior President continued as follows:

“All arrangements for the appellant's attendance at the workshop were based on lies from himself.

The lie to Mrs Zemura was that the Technical Manager (Mhonde) had authorised him to attend, and the lie to Mr Mhonde was that Mr Makwenda had invited him to present a detailed paper on the Safety, Health and Environment Programme. Both officers had then, in good faith, proceeded to facilitate the appellant's attendance at the workshop…,.

My finding, therefore, is that the appellant attended the workshop without authority and that he lied about his invitation. Such conduct was therefore inconsistent with the express and implied conditions of his contract of employment i.e. a violation of the expected degree of honesty and integrity.”

It is clear, therefore, that the learned Senior President made specific findings of fact on the credibility of the four people who testified before him. He found that Murawo had lied, and that the witnesses who testified on behalf of the GMB had told the truth.

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

“It has repeatedly been laid down that, in view of the advantages enjoyed by the trial court, in seeing and hearing the witnesses, and in being steeped in the atmosphere of the trial, an Appeal Court is, in general, reluctant to disturb the findings of a trial court on questions of fact.”

In the present case, I can find no reason for disturbing the findings of fact made by the Labour Court. In my view, the conclusions reached by the Senior President cannot be described as being so outrageous in their defiance of logic that no sensible person applying his mind to the questions to be decided could have arrived at such conclusions.

Finally, I wish to deal with the submission made by Murawo's counsel that a penalty less than dismissal ought to have been imposed.

The issue of the appropriate penalty for misconduct inconsistent with the fulfilment of the express or implied conditions of a contract of employment was considered by this Court in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (SC). At 218D-219A McNALLY JA said:

“In Halsbury's Laws of England, 4ed Vol 16, para 642, it is said:

'Misconduct inconsistent with an employee's proper discharge of the duties for which he was engaged is good cause for his dismissal, but, there is no fixed rule of law defining the degree of misconduct which will justify dismissal.'

That passage is based on a dictum by LORD JAMES OF HEREFORD in Clouston & Co Ltd v Corry [1906] AC 122 at 129 (PC), cited with approval in Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 2 All ER 285 (CA) at 287H as follows:

'Now, the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be conduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.'

I consider that the seriousness of the misconduct is to be measured by whether it is 'inconsistent with the fulfilment of the express or implied conditions of his contract'. If it is, then it is serious enough prima facie to warrant summary dismissal…,. Then, it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

In the present case, Murawo's misconduct can hardly be described as “so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.” On the contrary, the misconduct was serious and premeditated, and called for the penalty of dismissal.

In the circumstances, the appeal is devoid of merit and is, therefore, dismissed with costs.

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced.

Counsel for the defendant applied for absolution from the instance on two broad grounds:

(i) The first was that the plaintiff failed to disclose a cause of action; and

(ii) The second was that even if he did disclose it, he failed to prove the damages he is entitled to receive.

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 meant that he remained an employee.

Counsel for the defendant contended that he was dismissed by 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 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 Condition 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;

(c) (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 delegate.

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 contention by the plaintiff, that he remains an employee until he formally receives a letter terminating his employment, does not make sense.

This is because if the second defendant was to write such a letter, it would simply state that he was dismissed from the date of suspension. He would not be entitled to claim earnings from the date of suspension cum dismissal to the date the letter is written.

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said that at least, in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171 of the Constitution.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful “need” for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters.

It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.

Ordinarily, existing legislative mechanisms that are in place would logically need to be followed unless there exist strong reasons for intervention or unless a reading of any specific provision suggests otherwise in terms of the jurisdiction question: see, for instance, Mapini v Omni Africa (Pvt) Ltd HH494-13 and also the discussion in Derdale Investments (Pvt) Ltd v Econet Wireless (Private) Ltd & Ors HH656-14.

Generally, it would also be amiss to lose sight of a major reason behind the creation of the Labour Court: which was that it would be a specialist court on labour issues.

More significantly, in casu, the Labour Court had already been approached as a court of original jurisdiction in terms of the appeal and interim relief sought, in keeping with legislative intention.

The approach to the High Court was registration-related because when it comes to registration of labour awards, the Labour Court clearly lacks jurisdiction as the legislature gives this power to Magistrates' Courts and the High Court depending on the value of the award.

Registration of awards, in terms of section 98(14) of the Labour Act, is, therefore, an area of Labour Law where the statute endows the Magistrate Court and the High Court with registration jurisdiction: see Trust Me Security Org v Mararike & Ors HH325-14.

Also, Articles 34 and 36 of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] empower the High Court as the forum to set aside an award on specified grounds.

For the court to intervene on the basis of public policy, however, the infringement of public policy would have to be palpably outrageous. The approach is to construe public policy restrictively: see Zimbabwe Posts (Pvt) Ltd v Communications & Allied Services Workers Union HH60-14; Makonye v Ramodimoosi & Ors HH52-14; Wei Properties (Pvt) Ltd v S & T Export & Import (Pvt) Ltd HH336-13.

The respondent's reasons, in this case, were that an alternative claim for damages in lieu of reinstatement had not been made.

The principle is indeed where reinstatement has been ordered that damages be stated as an alternative to reinstatement.

This argument was put forward against the backdrop of an outstanding appeal in which the basis of the appeal is that the dismissal of the applicant was warranted. As such, the appeal should be heard since dismissal of the applicant is the real gist of its grievance.

The Appeal Court will, needless to say, address the way forward on damages such as by ordering remittal for this issue to be addressed by the arbitrator if deemed necessary.

Appeals should not be heard through the back door.

Another grievance said to justify non-registration was that the computation of tax should have been done on the whole figure instead of piece meal as the piece method employed amounted to tax evasion.

In my view, this was an issue which, if the respondent felt strongly about, should have raised with the arbitrator within 30 days of receipt of the award.

I say this because Article 33(1)(a) of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] permits a party, on notice to the other party, to request the arbitral tribunal to correct any error in computation among other errors.

The respondent's argument lacked merit and was simply one of convenience and avoidance.

In any event, this court lacked the necessary details to engage effectively with this assertion. I was therefore of the view that, overall, this was not a case of compelling need that justified intervention.

Furthermore, in allowing registration, I took into account that with interim relief having been denied, the applicant also stood on firmer ground than the respondent.

In terms of section 92E(2) of the Labour Act [Chapter 28:01], the general legal position is that an appeal does not suspend the decision appealed against.

Also, in terms of section 92E(3) of the Labour Act, pending such determination, the Labour Court may make such interim determination as the justice of the case demands: see Giya v Ribi Tiger Trading HH 57-14.

In this case, the Labour Court had already decided, at the time I heard the application for registration, that interim relief did not meet the justice of the case.

The respondents heads of argument had been very clear that the application for interim relief, which was pending at the time it filed its case, was central to its opposing registration.

What was therefore instructive in registering the award was the fact that the application for stay of execution had been dismissed. It remained extant since it had not been stayed or suspended: see Greenland v Zimbabwe Community Health Intervention Research Project HH93-13.

Accordingly, the above were my reasons for registering the applicant's arbitral award.

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed.

In opposing the application, the respondent raised three preliminary issues:

(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.

The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].

The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:

" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.

The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.

The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."

In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.

A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.

I agree with this view.

The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).

In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.

I therefore decline the invitation to withhold my jurisdiction in the matter.

(ii) The second preliminary issue raised by the respondent relates to the late filing of the application for review.

The point was first raised in the respondent's opposing affidavit. Thereafter, the applicant filed an answering affidavit together with an affidavit headed "Affidavit of Condonation."

It has been argued, on behalf of the respondent, that, because the affidavit explaining the delay was not filed before the main application, and was not accompanied by a formal application, the application for condonation must be denied.

I find this objection frivolous especially in view of the provisions of Rule 4(c) of the High Court Rules.

In terms of this Rule, the court is empowered to authorise departures from the strict observance of its own Rules where the court is satisfied that such departure is required in the interests of justice.

The departure from the Rules, by the applicant, was very slight in my view. Further, it did not occasion any prejudice to the respondent, who, before the hearing, was aware that an application for condonation would be made and the grounds thereof.

In terms of Rule 259, a party intending to institute review proceedings must do so within eight (8) weeks from the date of the decision to be reviewed. If he or she does not do so within the prescribed period, he or she must first make an application for the extension of the period.

In considering an application for the extension of the period within which the review proceedings may be instituted, the court will have regard to;

(i) The period of delay;

(ii) The explanation for such delay;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The respondent's interests in the finality of his judgment;

(vi) The convenience of the court; and

(vii) The avoidance of unnecessary delay in the administration of justice.

This, in my view, grants the court wide discretion to come up with a value judgment that best serves the interests of justice.

The consideration of an application for condonation for late filing of a review application is not a hurdle course where the applicant has to pass certain hurdles before their application can be granted. In my view, it is a consideration in which all or some of the factors I have referred to above are taken into account to enable the court to make a determination in the best interests of justice.

I have taken into account all the factors referred to above. In particular, I have been influenced by the respondent's attitude that the period of delay is not unreasonably long. While the reason for the delay may not be termed impressive, I have taken into account the strong merits of the applicant's case and regard this as pivotal in tipping the scales in favour of the granting of the application for condonation.

I now turn to the merits of the application.

The applicant has advanced, as one of the grounds for review, the fact that the Disciplinary Committee that sat to determine the charges of misconduct against her was improperly constituted.

She alleges that no member of the Workers Committee, who are also members of the Works Council, sat on the committee when the Code stipulates that three should sit.

Relying on the Supreme Court judgment in Madoda v Tanganda Tea Company Limited 1999 (1) ZLR 374 (S), the applicant argued, that, the decision of the Committee was therefore a nullity by virtue of the non-compliance.

I agree.

The judgment in Madoda v Tanganda Tea Company Limited 1999 (1) ZLR 374 (S) binds me to hold that where a Disciplinary Committee is established in terms of a registered Code of Conduct and the composition of the Committee is not as provided for in the Code, the deviation from the provisions of the Code constitutes a procedural irregularity, which, if not vitiating the proceedings, renders them voidable at the instance of the employee.

Assuming that I am wrong in holding that the decision of the Committee was a nullity by reason of non-compliance with the provisions of the Code of Conduct; in my view, the applicant would succeed in her application on another basis. This is as follows:

The applicant has alleged, as one of the grounds for review, that, the decision of the respondent was grossly unreasonable. This, in my view, brings under the spotlight the content of the decision of the respondent to dismiss the applicant.

The powers of the High Court, on review, have been extensively discussed: see Fikilini v Attorney General 1990 (1) ZLR 105 (S); Secretary of Transport v Makwavara 1991 (1) ZLR 18 (S).

In the matter of Secretary of Transport v Makwavara 1991 (1) ZLR 18 (S), the Supreme Court accepted as correct the concession by both counsel that administrative action is subject to control by judicial review under three heads: illegality, irrationality, and procedural impropriety.

It is with the first ground that we are concerned with in these proceedings.

In my view, the respondent made an error in law in arriving at its decision.

According to the facts of the application, it is not in dispute that the applicant did not furnish the respondent with proof of her qualifications. It is further not in dispute that she obtained her employment with the respondent on the strength of the alleged qualifications.

In my view, it cannot be disputed, that, if the respondent had known, way back in 1991, that the applicant was not possessed of the qualifications she purported to hold, she would not have been employed. The misrepresentation by the applicant therefore induced the contract between the two parties.

This point has not escaped the respondent's legal practitioner. He correctly notes, in his supplementary heads of argument, that, the question of the applicant's qualifications was a pre-requisite to employment.

In the circumstances of this matter, the remedy pursued by the respondent, in charging the applicant with an act of misconduct, was, in my view, ill-conceived.

By charging the applicant with an act of misconduct, the respondent has pushed itself into a legal conundrum. It is this:

The applicant is either an employee of the respondent or she is not. If she is an employee, then the question of her qualifications falls away. But, only employees of the respondent can be charged with misconduct. Therefore, by charging the applicant with an act of misconduct, the respondent has elected to clothe the applicant with the status of an employee.

However, once it has accepted that the applicant as an employee, the effect of any misrepresentations inducing the contract of employment falls away. In other words, the respondent, in my view, can only use the misrepresentation to terminate the contract of employment and not to discipline the applicant.

If I were wrong in my above finding, I still would have upheld the applicant's application on another basis.

It is common cause that the applicant was employed as a Clerk/Typist. Although her duties were not given in the application, one would assume that these were the ordinary duties normally associated with this post. For the charge of misconduct against the applicant to be sustainable, the respondent must have ordered her to perform those duties and responsibilities required of her by her contract of employment: see Zupco v Mabhande & Another 1998 (2) ZLR 150 (S).

The production of educational certificates is a singular act that is expected of most people joining employment at whatever level. It is not a duty or responsibility expected in terms of any contract of employment. It is a duty or responsibility expected of all employees, to bring into being the contract of employment, unless the employer decides to overlook or waive its right to this requirement.

In my view, failing to produce educational certificates should rightfully result in no contract at all and cannot found ground for dismissal once the contract has come into being.

On the basis of the foregoing, I make the following order:

1. The purported dismissal of the applicant from employment is hereby set aside.

2. The respondent is to pay the applicant's costs.

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

This is an application for leave to appeal from a judgment of the Labor Court. The court a quo found no merit in the application for leave to appeal and dismissed it, on the main, that, the draft notice of appeal did not raise questions of law.

The applicant was dissatisfied with the judgment of the court a quo and filed an application for leave in terms of Rule 60 of the Supreme Court Rules, 2018.

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant was employed by the first respondent as a Stock Quality Analyst. He was charged with misconduct by the first respondent on the basis that he had been found in possession of unauthorised email communication which was between Group Executives. The first respondent was of the view that the applicant's conduct amounted to an act of un-authorised impingement of emails in the organisation. The applicants conduct was aggravated by the fact that the applicant had allegedly shared this information with other persons without the written consent of the first respondent in terms of the first respondent's IT policy.

Following a charge of misconduct, a hearing before the Disciplinary Committee was set down but was postponed on six separate occasions at the request of the applicant. On the final occasion, the Disciplinary Committee proceeded to hear the matter and found the applicant guilty in absentia.

He was subsequently dismissed from employment.

Following the applicant's dismissal, he proceeded to file an appeal with the Appeals Committee in terms of the Disciplinary Code. Again, the applicant did not attend the hearing before the Appeals Committee and the Committee proceeded to dismiss the appeal and to uphold the decision by the Disciplinary Committee.

The applicant appealed to the Labour Court under LC/B/37/2019 before MURASI J on the basis, that, the hearing committee had erred by not finding that he was wrongfully charged. The applicant further averred that the committee had erred in finding that he was in possession of documents whereas the documents, subject to the charge, had been loaded onto his computer following a breach of his password.

The first respondent raised a point in limine to the effect that the appeal was improperly before the court as the applicant had not appeared before the two lower tribunals, which tribunals had issued default judgments against him, and, as such, these decisions could not be appealed against.

The court proceeded to uphold the point in limine and struck the matter off the roll.

The applicant then made an application for condonation of late filing of an application for review and extension of time within which to file an application for review.

The court a quo dismissed the application.

The court found that the applicant failed to give a reasonable explanation for the delay in making a valid application for review, and that, in any event, he lacked prospects of success on review.

The applicant subsequently sought for leave to appeal to this Court under LC/MT/48/20. The applicant argued, that, the court a quo had made material omissions in its findings and that its discretion had been based on wrong principles of law. He also attached his intended Notice of Appeal to the application.

The court a quo dismissed the application on the basis that the applicant's intended grounds of appeal did not raise questions of law as required by the Labour Court Rules.

Undeterred by this dismissal, the applicant launched this application.

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU
Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

This is an appeal against the decision of the Labour Court where it ordered that the appellant reinstate the respondent into employment without loss of salary and benefits or be paid damages in lieu of reinstatement if reinstatement was no longer possible.FACTUAL BACKGROUNDThe respondent was employed by the appellant as ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as a Marketing Manager. Sometime in 2012, the appellant resolved to renovate its front office. The respondent, being a senior employee, was tasked to oversee the implementation of the aforesaid resolution.

Efforts to find suitable vendors to do the renovations failed, and, as a result, it was suggested that the appellant engage the services of the respondent's advertising agency, a company called DDH & M Advertising (Private) Limited. It was agreed that the company would be engaged to select reputable interior architects and to manage the project implementation on behalf of the appellant.

Sometime in November 2012, the advertising agency wrote to the respondent advising her of the outcome of its search for suitable contractors.

The agency brought forward three contractors:

The first contractor, Thuthukile International (Private) Limited was keen to supply but it later pulled out due to pressures from other clients. The second contractor was Kaschula and Co. It had certain conditions which the advertising agency deemed not to have been standard procedures. The last company, Archi Craft Architect (Private) Limited, was determined, by the advertising agency, to have a combination of both the mechanical and technical know-how to do the job.

As a result, acting upon the recommendation of the advertising agent, the respondent, on 6 November 2012, authored an internal memorandum in terms of which permission was sought to award Archi Craft Architect (Private) Limited the contract to renovate the offices.

At a meeting held on 28 November 2012, with the respondent's superiors, including the finance executive, it was decided, that, the contract would be awarded to Archi Craft Architect (Private) Limited.

This decision was made with the respondent and her superiors being fully aware of the company's written policy which prohibited the engagement of a service provider without the involvement of the Purchasing Committee.

As the respondent and her superiors had failed to follow company procedure, they were subsequently charged in terms of the appellant's Code of Conduct, under Group IV offences; namely, gross negligence or incompetence in the performance of their duties which damaged the employer's interests.

The appellant's disciplinary committee found the respondent guilty of the charges and she was subsequently dismissed. She appealed to the Appeals Committee which appeal was also dismissed.

Aggrieved by the decision of the Appeals Committee, the respondent appealed to the Labour Court seeking an order for the setting aside of the decision of the Appeals Committee.

The court a quo held, that, it was unproven that the respondent had flouted the appellant's procurement policy. It further determined, that, all she did was to merely advise that a certain vendor be contracted. It was further held, that, in the circumstances, the respondent had not advised anyone to by-pass the Purchasing Committee.

In the result, the court a quo upheld the appeal and ordered that the respondent be reinstated or be paid damages in lieu of reinstatement if reinstatement was no longer possible.

Aggrieved by the decision of the court a quo, the appellant has lodged the present appeal on the following grounds:

(a) The court a quo grossly erred and misdirected itself on the facts when it failed to find that the respondent had participated in the process that culminated in the wrongful engagement of Archi Craft Architect (Private) Limited to carry out renovations at the appellant's offices. Such a misdirection was so gross as to amount to a misdirection at law.

(b) The court a quo erred at fact, in that, on one hand, it noted that in terms of the appellant's procurement policy, all tenders had to be submitted to the Procurement Committee for final approval, and, in the other, failed to find that the respondent had flouted this procedure, when all facts pointed to this. Such misdirection was so gross as to amount to a misdirection at law.

(c) The court a quo erred in law when it failed to find that the conduct of the respondent in that regard constituted gross negligence on her part.

(d) The court a quo seriously misdirected itself when it proceeded to determine this matter on the basis that the respondent had been accused of contracting Archi Craft Architects (Private) Limited, when, in fact, the charge was that she had caused and/or facilitated the aforesaid engagement such gross misdirection by the court a quo amounts to a misdirection at law.

(e) The court a quo erred when it failed to find that the respondent, through her memorandum dated 6 November 2012, led to the wrongful engagement of Archi Craft Architect (Private) Limited.

At the hearing of the appeal, the appellant submitted, that, the respondent failed to follow proper channels as required by the company's policy. The appellant further argued, that, instead of securing three quotations and then submitting them to the company's Purchasing Committee, the respondent secured two quotations only and submitted them to her immediate supervisor. It was further argued by the appellant, that, the court a quo erred in overturning the decision of the disciplinary committee which was based on factual findings yet the court a quo had not found any gross misdirection on the part of the disciplinary hearing.

Per contra, counsel for the respondent submitted, that, the respondent, in the discharge of its duties, had merely recommended the engagement of Archi Craft Architect (Private) Limited. It was submitted, that, the respondent, in recommending the vendor to her supervisor, was not grossly negligent nor was she incompetent in the execution of her duties.

After hearing submissions by both parties, it seems to me that there are only two issues for determination, and these are they:

1. Whether the court a quo erred in not finding that the respondent had flouted the company procedure; and

2. Whether the court a quo erred in not finding that the conduct of the respondent constituted gross negligence.

I shall deal with the issues in turn.

Whether the court a quo erred in not finding that the respondent had flouted the company procedure

The appellant, in its submissions, argued, that, the respondent acted unlawfully by setting in motion an unprocedural process that led to the awarding of the contract to Archi Craft Architect (Private) Limited. It further submitted, that, the respondent made the request to recommend the awarding of the contract to Archi Craft Architect (Private) Limited with the full knowledge that the appellant's Purchasing Committee had not presided over the selection process. In the circumstances, the appellant submits, that, the court a quo erred in not finding that the respondent had flouted its company procedure.

On the other hand, the respondent denied flouting any procedure.

She insisted, that, it was not her duty to select the ultimate vendor. She further submitted, that, her role was to simply request, which request could be granted or denied, and that whoever contracted the vendor is the one who bypassed the company's Purchasing Committee.

In determining the issue before it, the court a quo was alive to the fact, that, the awarding of the contract to Archi Craft Architect (Private) Limited violated the appellant's written policy. Whilst recognizing this procedural irregularity, the court a quo however did not put the blame on the respondent. In supporting the respondent's case, the court a quo stated:

“…, it was not clear what her duties were in connection with the procurement procedures…, it is not clear who specifically contracted the vendor, but, what is apparent is that it was not the appellant (now respondent)…, whoever contracted the vendor is the one who by-passed the committee and was thus answerable for flouting policy.”

From the record of proceedings, what is apparent is, that, on 5 November 2012, the respondent received a letter from the advertising agent to the effect that they had found suitable contractors, and, from the contractors found, they recommended Archi Craft Architect (Private) Limited for the job. On 6 November 2012, the respondent, acting on the letter by the advertising agent, wrote an internal memorandum that stated as follows:

“We are seeking the permission to contract Archi Craft Architect (Private) Limited to carry out the Front Office renovations based on the submissions by our agency, DDH& M, who we had contracted to source for architectural and design firms bids to renovate the offices.”

The respondent, in the memorandum, sought “permission to contract” Archi Craft Architect (Private) Limited.

The respondent, at that stage, and with her position as one of the senior employees implementing the project, ought to have known, that, as they now had a list of prospective contractors, the list was supposed to have gone through to the Purchasing Committee.

That did not happen.

The respondent sought permission to contract, and permission was granted.

The respondent's submission, that, whoever awarded the contract was the one who flouted policy lacks merit.

What her superiors did was to concur with the wrongful path that had been proposed by the respondent. It follows, that, the procedure taken by the respondent, and the subsequent concurrence with the procedure, flouted company policy.

Hypothetically, if the renovations had been done in line with company policy, and credit was being given, surely the respondent would not have excused herself and say that I was not involved in the final selection so do not give me credit.

The court a quo, in the circumstance, erred in not finding that the respondent had flouted company policy.

Whether the court a quo erred in not finding the conduct of the respondent constituted gross negligence

The argument proffered by the appellant was that, at all times, the respondent was aware of the fact, that, the appellant had a Purchasing Committee whose mandate was to preside over the selection of service providers.

Counsel for the appellant submitted, that, the respondent set in motion the process that led to the unprocedural engagement of Archi Craft Architect (Private) Limited and that the manner in which the respondent handled the affairs of the appellant shows negligence of a gross nature.

On the other hand, the respondent submitted, that, she had no final say in the awarding of the tenders and she did not prevent anyone from complying with the procurement requirements. She argued that the charge of “gross negligence of duty” was not proved.

To determine if the court a quo erred in not finding the conduct of the respondent grossly negligent, it is important to establish what the term gross negligence entails. It was held, in Standard Chartered Bank of Zimbabwe Ltd v Chipininga 2004 (2) ZLR 94 (S)…, that:

“It has been pointed out that 'gross negligence' is a nebulous concept, the meaning of which depends on the context in which it is used and it is a futile exercise to seek to provide a definition which would be applicable to all circumstances: see Govt of Republic of SA (Dept of Ind.) v Fibre Spinners and Weavers (Pty) Ltd 1977 (2) SA 324 (D) at 335E; Bickle v Minister of Law and Order 1980 (1) ZLR 36 (H) at 41A.

It has been described as 'ordinary negligence of an aggravated form which falls short of willfulness' (Bickle's case supra); 'very great negligence or want of even scant care or a failure to exercise even that care which a careless person would use:'see PROSSER 'Law of Torts' 4ed at 183.”

The definition of the concept, which has, for practical purposes, been quoted with approval in many cases, was stated in City of Harare v Chikwanda SC70-20 wherein BHUNU JA quoted the remarks of MURRAY J in Rosenthal v Marks 1944 TPD 172…, where he said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to give consideration to the consequences of his actions, a total disregard of duty: see per WESSELS J in Adlington's case supra at p973 and Cordey v Cardiff ke Co. (88LT 192).”…,.

It is apparent, that, the question whether the respondent ought to have been found guilty of gross negligence of duty can only be determined by reference to evidence that proved, on a balance of probability, that she totally disregarded her duties.

It is common cause, that, the appellant had a written down policy which provided for the procedures to be followed in certain circumstances. It is also common cause that the respondent had a Procurement Committee which had a mandate to preside over the selection of suppliers as and when needed.

In the circumstances, as there were renovations to be done, the Procurement Committee was crucial in the eventual selection of the prospective vendor. All bids that were to be considered would have to pass through the Procurement Committee.

This was a standard procedure that was common to all employees - especially the respondent as the appellant's Marketing Manager.

Her position in the company placed her in a position that she knew, or she ought to have known, about that written policy.

It is not denied that the respondent wrote to her superior recommending the contracting of Archi Craft Architect (Private) Limited without first going through the Procurement Committee.

In her defence, she submitted, that, it was not her duty to select the ultimate supplier, and that all she did was merely recommend which supplier they could pick.

I find no merit in that defence.

As the Marketing Manager of the company, and as one of the senior employees who were seized with the duty of overseeing the implementation of the renovations at the appellant's premises, she had a duty to ensure that the renovations were done through lawful procedures and to ensure that the policy of the appellant is implemented properly.

The conduct of the respondent, as one of the employees who oversaw the project, in recommending the awarding of the contract to Archi Craft Architect (Private) Limited, amounted to gross negligence.

The fact that she initiated the process that led to the unprocedural awarding of the contract shows that she neglected her duty to follow proper procedure.

I associate myself with the remarks in Rosenthal v Marks 1944 TPD 172, that, her actions were grossly negligent in that she totally disregarded the consequences of her actions which amounts to a disregard of duty.

The court a quo, after considering all the evidence, should have found the respondent's conduct grossly negligent. Accordingly, this ground of appeal has merit and it is upheld.

DISPOSITION

The respondent, having been one of the senior employees and managers responsible for the implementation of the renovation project at the appellant's offices, had the duty to make sure, that, at all times, the interests of her employer were looked after.

It is common cause, that, she authored the internal memorandum that culminated in the awarding of the contract to Archi Craft Architect (Private) Limited in a way that was contrary to the appellant's company written policy. As a result, the respondent was actively involved in the flouting of the company's procedure. Her conduct, of not following company policy, was grossly negligent as she disregarded the consequences of her actions.

In the result, the appeal is allowed with costs and the decision of the court a quo is set aside and substituted with the following:

'The Appeal is hereby dismissed with costs.'

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

THE FACTS

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

PROCEEDINGS A QUO

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

PROCEEDINGS BEFORE THIS COURT

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

ANALYSIS

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

DISPOSITION

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

In the result, it be and is hereby ordered as follows:

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

The Labour (National Employment Code of Conduct) Regulations 2006, SI15/06 deals with misconduct under section 4 where its introductory part reads as follows:“An employee commits a serious misconduct if he or she commits any of the following offences…,.(a) Any act of conduct or omission inconsistent with the fulfilment of the ...

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

The applicant approached this Court in terms of section 85(1)(a) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), alleging that the respondents infringed the following of her fundamental rights:

(i) The right to dignity;

(ii) The right not to be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment; and

(iii) The right not to have a health condition disclosed.

The allegation was that these rights, which are enshrined in the Constitution, were violated when the first respondent subjected the applicant to disciplinary proceedings for alleged misconduct arising from her alleged failure to disclose her HIV status in a form she completed when applying for employment with the first respondent.

The allegation was that the disciplinary proceedings were based on a failure to complete a form that compelled her to disclose the condition of her health.

She alleged, that, by subjecting her to the disciplinary proceedings by which she was found guilty of the misconduct charged, resulting in her dismissal from employment, the first respondent infringed her rights.

The applicant seeks an order in the following terms:

“(a) The first respondent's conduct, in requiring that the applicant discloses her health condition, is declared unconstitutional and in breach of sections 57(e); 51 and 53 of the Constitution.

(b) The disciplinary proceedings conducted by the first respondent relating to the applicant's failure to disclose her health condition are accordingly set aside. Any appeal in relation to the said disciplinary proceedings is permanently stayed.

(c) Section 8 of Schedule 4 of the Employment Code of Conduct for the NEC for Welfare and Educational Institutions, which penalises a failure by an employee to disclose their medical status when undergoing a medical examination at the instance of the employer, is hereby declared unconstitutional.

(d) The first respondent is hereby ordered to reinstate the applicant to the post of Ward Manager, or, alternatively, to pay her damages as quantified by the Labour Court for unfair dismissal.

(e) The first respondent and the second respondent are hereby ordered to pay the applicant $30,000 as constitutional damages to compensate her for the violation of her privacy and dignity and for causing the applicant to suffer inhuman and degrading treatment.

(f) The first respondent is hereby ordered to pay costs of suit on a legal practitioner and client scale.”

The facts which gave rise to the application are these:

The applicant was diagnosed with Human Immune-Deficiency Virus (HIV) in 2003 while she was employed at the Avenues Clinic as a nurse. She later resigned in 2006 when her health condition deteriorated. Her health condition later improved, and, in 2010, she applied for a job with the first respondent. She was interviewed for a post of a General Nurse and successfully passed the interview.

The applicant was required to complete a medical examination form before commencing employment.

The medical examination form required her to indicate whether she had suffered from any serious illness or injury. She indicated that she had not suffered from any serious illness. She also failed to disclose that she had once retired from her previous employment on medical grounds.

The applicant proceeded to enter into a contract of employment with the first respondent as a General Nurse.

The applicant was again interviewed in March 2011. She succeeded and was appointed to the post of Ward Manager.

In September 2012, the applicant suffered a stroke and went on sick leave from 21 September 2012. When the applicant resumed work, on 2 December 2012, she was referred to one Dr Ngwende, who advised the first respondent's Human Resources Manager that she had made some progress and could resume her duties. The doctor recommended that the applicant should perform light duties.

The first respondent was not pleased with the health condition of the applicant and served her with an investigation notice, in which it alleged that the applicant had given false information when she completed the medical examination form.

The applicant was suspended from employment on allegations that she contravened Schedule 4(8) of the Employment Code of Conduct for the National Employment Council for the Welfare and Educational Institutions (“the Code of Conduct”) which provides, that, supplying false information or knowingly omitting relevant information in an application for employment, or when undergoing a medical examination, is an act of misconduct.

The applicant was charged with that misconduct, it being alleged, that, she had supplied false information or knowingly omitted relevant information when she completed the medical examination form, in that she said she had not suffered from any serious illness when she knew that the statement was false.

A disciplinary hearing was conducted and the applicant was found guilty as charged. The disciplinary committee found that the applicant committed an act of dishonesty, which is a serious offence as the relationship between an employer and employee is based on honesty and trust.

A penalty of dismissal was imposed.

Aggrieved by the decision of the disciplinary committee, the applicant appealed to the third respondent's Appeals Committee (“the NEC Appeals Committee”). The appeal was allowed. The decision of the first respondent's disciplinary hearing committee was set aside and substituted with an order that the applicant be reinstated to her former position without loss of salary and benefits from the date of dismissal.

The first respondent noted an appeal against the decision of the NEC Appeals Committee to the Labour Court. At the same time, the applicant brought an application for review of the proceedings of the first respondent's disciplinary committee before the Labour Court.

Whilst both matters were pending before the Labour Court, the applicant made this application in terms of section 85(1) of the Constitution.

The applicant alleges, that, the respondents have breached her right to privacy as enshrined in section 57(e) of the Constitution, which provides that:

“Every person has the right to privacy, which includes the right not to have —

(a)-(d)…,.;

(e) Their health condition disclosed.”

The applicant further alleges, that, her right to dignity (section 51 of the Constitution) and her right to protection against inhuman and degrading treatment (section 53 of the Constitution) were violated by the first respondent's conduct in conducting the disciplinary proceedings.

It was the applicant's submission, that, the disciplinary proceedings were designed to compel her to disclose her medical condition, in particular her HIV status.

A preliminary point was raised as to whether the application was properly before the Court, considering that there was a pending appeal and an application for review before the Labour Court.

Counsel for the applicant submitted that what was in the Labour Court was an appeal against the decision of the third respondent. She also submitted that there was nothing constitutional pending before the Labour Court. As such, there is no rule which prevented the applicant from approaching the Constitutional Court in terms of section 85(1)(a) of the Constitution. She went further and argued, that, the Labour Court has no power to issue a declaratur.

It was on that basis that the applicant argued that the matter was properly before the Court.

Counsel for the first and second respondents submitted, that, the application was an abuse of court process as there was a pending appeal before the Labour Court.

Counsel for the third respondent made submissions to the same effect.

He further submitted, that, the ground on which the application was brought was that the first respondent compelled the applicant to disclose her health condition. The matter before the Labour Court involved the determination of the question whether the applicant was compelled to disclose her health condition. The ground on which the application was brought to this Court, alleging the violation of the fundamental rights referred to in the founding affidavit, is the same as the ground on which the appeal before the Labour Court is to be determined.

In determining the question whether the first respondent acted lawfully when it charged, convicted, and dismissed the applicant for giving false information or knowingly omitting relevant information when she completed the medical examination form for employment purposes, the Labour Court would ipso facto decide the question whether the applicant's rights were infringed.

It is important to note, that, the purpose of the disciplinary proceedings was not to compel the applicant to reveal her health condition. The purpose was to determine the question whether she had given false information when she answered in the negative the question whether she had suffered from any serious illness.

If she was honest, she needed only to answer the question in the affirmative.

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

What constitutes wilful disobedience to a lawful instruction at the workplace was defined by GUBBAY JA…, in Matereke v CT Bowring Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, wherein the learned jurist said:“Willful disobedience or wilful misconduct, the words, in my view, connote a deliberate and serious ...

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Discipline re: Disciplinary Hearings iro Conduct Inconsistent With Express & Implied Conditions of Employment Contract

SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

SC06-12 : INNSCOR AFRICA (PVT) LTD vs LETRON CHIMOTO Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC12-12 : ANDREW MACHAYA vs FARM AND CITY CENTRE Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC27-13 : SHECKEM BARRISTER NGAZIMBI vs MUROWA DIAMONDS (PVT) LTD Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC80-14 : DHL INTERNATIONAL (PRIVATE) LIMITED vs KEVIN TINOFIREYI Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

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HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

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SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

SC06-12 : INNSCOR AFRICA (PVT) LTD vs LETRON CHIMOTO
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC12-12 : ANDREW MACHAYA vs FARM AND CITY CENTRE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC27-13 : SHECKEM BARRISTER NGAZIMBI vs MUROWA DIAMONDS (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC70-14 : DOREEN SAGANDIRA vs MAKONI RURAL DISTRICT COUNCIL
Ruled By: MALABA DCJ, GARWE JA and OMERJEE AJA

SC80-14 : DHL INTERNATIONAL (PRIVATE) LIMITED vs KEVIN TINOFIREYI
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

SC05-15 : INNSCOR AFRICA (PRIVATE) LIMITED vs TERRENCE GWATIDZO
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

View Appeal
SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

SC49-15 : CELSYS LIMITED vs NOBERT NDELEZIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and PATEL JA

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

View Appeal
SC26-13 : SHADRECK MOYO & 13 OTHERS vs J .L. HOFFMAN and CENTRAL AFRICAN BATTERIES (PRIVATE) LIMITED
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC47-15 : RAINBOW TOURISM GROUP vs RICHARD NKOMO
Ruled By: ZIYAMBI JA GARWE JA and HLATSHWAYO JA

SC22-16 : MICHEAL HENRY BROWNE vs TANGANDA TEA COMPANY
Ruled By: ZIYAMBI JA, GWAUNZA JA, PATEL JA

SC18-17 : HAPPISON SIGAUKE vs FALCON GOLD ZIMBABWE LIMITED
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC35-16 : NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY vs RICHARD KUNDEYA and PANGANAI MARUFU and EPHRAIM TAWANA and WILLIAM MUSIIWA
Ruled By: GWAUNZA JA, HLATSHWAYO JA and BHUNU JA

SC48-16 : ZB BANK vs MARIA MASUNDA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC56-16 : AJASI WALA vs FREDA REBECCA MINE
Ruled By: MALABA DCJ, GWAUNZA JA and MAVANGIRA JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC56-18 : CITY OF GWERU vs RICHARD MASINIRE
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

SC133-21 : CIMAS MEDICAL AID SOCIETY vs LINDIWE MHUNDURU
Ruled By: HLATSHWAYO JA, BHUNU JA and BERE JA

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC18-17 : BLESSING MUSHAPAIDZE vs ST ANNE'S HOSPITAL and CAPS HOLDING LTD and NATIONAL EMPLOYMENT COUNCIL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA