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.”
