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.
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;
(ii)
that the court's finding of negligence was not the subject of
appeal; and
(iii)
that negligence is not a competent verdict on a charge of theft.
I
shall deal firstly with the last ground of appeal.
NEGLIGENCE
AS COMPETENT VERDICT ON CHARGE OF THEFT
As
a general rule, the standard of proof required in disciplinary
matters is that on a balance of probabilities. This is obviously not
as stringent as the standard required in criminal cases.
By
the same token, a disciplinary tribunal is endowed with a greater
measure of flexibility than that expected before a court of criminal
law. Nevertheless, there are certain basic principles that neither a
court nor tribunal can depart from.
One
of those principles is that the offence that the accused is found
guilty of must be commensurable with the offence that he has been
charged with. In other words, both offences must bear some legally
cognisable affinity with one another.
In
our criminal law, as is probably the case in any other legal system,
the essential elements of theft and offences based on negligence do
not share any meaningful convergence. They are sui
generis
and fundamentally distinct offences. In my view, the same must apply
to the treatment of these offences qua
acts of misconduct in disciplinary matters.
This
is clearly recognised in the Employment Code of Conduct applicable in
the present matter – as prescribed in the Collective Bargaining
Agreement: Engineering and Iron and Steel Industry (S.I.301 1996),
amending the principal agreement contained in Statutory Instrument
282 of 1990.
The
Schedule to the Code sets out four broad categories of misconduct and
defines the diverse offences constituting misconduct. Negligence is
identified as an act of misconduct under item B(4)(b), while the
specific offence of theft is captured under item D(c).
They
are clearly separate and distinct acts of misconduct.
The
appellant in
casu
was charged with theft as defined in item D(c). The Labour Court
found him guilty of negligence. That finding of negligence was
clearly not a competent verdict on the particular charge of theft
preferred against the appellant. In this regard, the court patently
ignored the specific provisions of the Code that should have guided
its decision in the matter.
In
short, as was conceded by Adv. Ochieng
in his curious but not inappropriate reference to a malapropism
having been committed, the court's finding was grossly erroneous.
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 and therefore invalid.
Again,
the court appears to have disregarded the requirements of the Code
and thereby committed a further fatal error.
POWER
TO SUBSTITUTE DECISION OR ORDER
Section
89 of the Labour Act [Cap
28:01]
regulates the functions, powers and jurisdiction of the Labour Court.
Section 89(2), in its relevant portion, provides that:
“In
the exercise of its functions, the Labour Court may –
(a)
In
the case of an appeal –
(i)
Conduct a hearing into the matter or decide it on the record; or
(ii)
Confirm, vary, reverse or set aside the decision, order or action
that is appealed against, or substitute its own decision or order.”
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. See
Zimasco
(Pvt) Ltd
v Chizema
2007 (2) ZLR (S) 314 at 316E-317G.
Furthermore,
sitting as a court of appeal, it can only deal with the matter on the
basis of the grounds of appeal that have been raised by the
appellant. See Chikanda
v United
Touring Company Limited
SC7/99 at p3.
In
the instant matter, it is not in dispute that the appellant was never
at any stage charged with negligence. Moreover, the grounds of appeal
before the Labour Court were confined to theft, without any reference
to negligence, and negligence was not canvassed by the parties in the
proceedings before it.
What
the court did, by finding the appellant guilty of negligence, was to
usurp the functions of the respondent's disciplinary and appeals
committees.
It
follows that the court fundamentally erred in its finding of
negligence, as that was an issue which was clearly not the subject of
the appeal before it.
DISPOSITION
It
seems necessary before concluding this judgment to make one
observation regarding the conduct of the appellant himself.
Having
regard to the record as a whole, it seems that the Labour Court
failed to take into account the totality of the evidence before it.
Quite contrary to its finding on the charge of theft, the facts of
the case suggest that there was ample evidence, albeit
circumstantial, to indicate that the appellant was indeed guilty of
theft.
Regrettably
for the respondent, it neglected to file any cross-appeal on this
point. Had it done so, the outcome of this matter might have been
entirely different.
In
any event, the appeal must be allowed on all of the grounds of appeal
framed by the appellant.
It
was for the above reasons that we allowed the appeal and set aside
the decision of the Labour Court.
ZIYAMBI
JA:
I agree
GARWE
JA:
I agree
Guni
& Guni,
appellant's legal practitioners
Coghlan,
Welsh & Guest,
respondent's legal practitioners
