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 10th 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.”
