This is an appeal against the judgment of the Labour Court
handed down on 17 January 2013.
The brief facts of the matter may be summarized as follows.
The appellant was employed by the respondent as a manager in its Audit Department.
She was allocated for her use, a computer which had an internet facility
already installed. The computer and the internet facility were for official use
in the course of her employment. On 13 July 2011, she was suspended from
employment and on 18 August 2011, after due investigation, she was charged in
terms of the respondents' Code of Conduct, under the respondents' most serious
category, with two offences, that is:-
(i) Wilfully applying a wrong use, or unauthorised purpose,
to assets or to property; or, alternatively
(ii) Carrying out an act which is inconsistent with the
express or implied conditions of the contract of employment.
She was found guilty of both charges by both the
Disciplinary Grievance Committee and the Appeals Committee, and, as a result,
she was dismissed from employment.
Dissatisfied with the penalty of dismissal she appealed to
the Labour Court which upheld the dismissal.
The appellant has appealed to this Court on two grounds set
out as follows:
1. The court a quo erred at law in upholding the
appellant's dismissal on the basis of an IT policy document which was not part
of her contract of employment.
2. The court a quo grossly misdirected itself and erred at
law in failing to consider relevant issued (sic) placed before it. It ought to
have considered and made a finding on whether or not the appellant's computer
could have been hacked in the light of evidence placed before it.
The allegation against the appellant was that on
22 April 2010 she had sent a video clip entitled “work done in the
kitchen” via email. It was not in dispute that the video clip contained
indecent, obscene and immoral material. It was found that the dissemination of
such material was contrary to the IT policy of the respondent which formed part
of her contract of employment. The offensive material had been sent from her
computer during working hours.
At the hearing, counsel for the appellant abandoned the
first ground and proceeded to argue on the second ground. Indeed, the decision
to abandon the first ground was well advised in view of the fact that paragraph
21 of the appellant's contract of employment specifically incorporated the
respondent's office procedures, staff handbook and staff code of conduct. This
would obviously include the respondent's IT policy document.
In relation to the second ground of appeal, counsel for the
appellant submitted that the court a quo had misdirected itself and erred at
law in failing to make a finding on whether or not the appellant's computer had
been hacked in the light of evidence placed before it.
It should be noted that although the appellant argued that
someone could have hacked her computer and sent the offensive material, she
refused to disclose to the Disciplinary Hearing whether or not the person to
whom the offensive material was sent was known to her in spite of being
questioned directly by members of the Committee.
Counsel for the appellant properly conceded, in our view,
that the appellant's refusal to answer the question of whether she knew the
recipient, during the disciplinary hearing conducted by the respondent, placed
her in considerable difficulty in defending the charges. Although the appellant
made the allegation that someone could have hacked her computer she did not
place any concrete evidence to support this speculative statement. She did not
specify which other persons had access to her computer' s password nor did she
state that at the time that the offensive email was sent someone other than
herself had access to it.
The court a quo proceeded to draw an adverse inference from
her refusal to answer the question as to whether or not she knew the recipient
of the offensive material. The court stated, at page 3 of the judgment, as
follows:
“During the course of the hearing, the appellant was asked
whether or not she knew the recipient address and she declined from answering.
This raises the question – why did she refuse to answer? This, in my view,
causes this court to draw an adverse inference against the appellant. Thus, it
can be concluded that appellant did send undesirable material on email during
working hours using the respondent's facility.”
In our view, the court's reasoning in this regard cannot be
faulted. It is supported by the case of Reserve Bank of Zimbabwe v Granger
& Anor SC34-00 where it was held
as follows:
“A gross misdirection of facts is either a failure to
appreciate a fact at all or a finding of fact that is contrary to the evidence
actually presented, or a finding that is without factual basis or based on
misrepresentation of facts.”
Taking into account the court's reasoning, there can be no
basis for the allegation by the appellant that the decision of the court a quo
was irrational as it was based on the evidence that was actually presented.
Counsel for the respondent had claimed costs on a higher
scale in his heads of argument. However, during the hearing, he took the view
that in the light of the appellant's concessions he would not persist with the
claim.
It was therefore the unanimous view of this Court that the
appeal was devoid of merit.
Accordingly, we made the following order:-
“The appeal be and is hereby dismissed with
costs.”
