DISTRIBUTABLE (22)

Judgment No. SC 28/05

Civil Appeal No. 353/01

PINIEL CHINODA v

ZIMSUN (PRIVATE) LIMITED T/A MAKASA SUN HOTEL

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & ZIYAMBI JA

HARARE, MAY 9 & JULY 21, 2005

The appellant in person

S V Hwacha, for the respondent

CHEDA JA: The appellant was employed at Zimsun (Private) Limited (“the respondent”) trading as Makasa Sun Hotel (“the hotel”). According to the appellant, he was not employed by the hotel, but by the company that has slot machines in the respondent’s hotel. The respondent has a Code of Conduct (“the Code”) that deals with dismissible offences. It reads in relevant part as follows:

“DISMISSAL OFFENCES

(a) Clock another employee’s time card intentionally;

(b) – (n) … (not relevant); and

(o) Disobedience to a lawful order or instruction given by an employer or supervisor with serious consequences.”

On 4 August 1994 the respondent issued the following instruction in writing to its employees:

“HOTEL STAFF GAMING – SLOT MACHINES

At the present time we have a policy which bans all Zimbabwe Sun staff gambling at any of our Casino units.

We have decided that due to the competition which now exists between ourselves and other companies, Hotel staff will be allowed to gamble in our Slot Machine Rooms under the following conditions:

1. Staff MUST be off-duty and out of uniform;

2. Only NON-PROGRESSIVE machines may be played;

3. Staff are NOT allowed to take part in any Slot promotions.

Please note that the above will be on (a) trial period of six months with effect from 15 August 1994, and that the existing ban on staff gambling on the tables is still in force.

Should you have any queries regarding the above, please do not hesitate to contact me.”

The document was signed by someone on behalf of Tony Ball, the Group Slot Operations Manager. It was distributed to Casino General Managers, Slot Managers, Assistant Casino Managers, Hotel General Managers and all Hotel Personnel Managers.

The appellant does not deny the existence of this document. In fact he says in his papers that he was aware of the ban on gambling by the respondent’s workers.

On 27 September 1996 a security guard observed the appellant gambling on the slot machines while appellant was on duty. The appellant was initially charged with and found guilty of gambling on slot machines. The National Employment Council for the Catering Industry of Zimbabwe (“the NEC”) Appeals Committee realised that this was not a correct charge and referred the matter back for retrial on the correct charge. The appellant was again found guilty. He appealed to the NEC Appeals Committee. It found him guilty of misconduct in that he had disobeyed a lawful order issued by the employer.

The sequence of the event is as follows –

9 OCTOBER 1996

A local hearing was held at the appellant’s workplace and a report by the security guard was read out. The minutes of this meeting are incomplete and do not state what decision was made.

23 JANUARY 1997

The Retrenchment Committee of the NEC deliberated on the appellant’s case and decided that since he had not appealed to the Zimsun National Committee the matter should be referred back to Zimsun.

17 MAY 1997

The Retrenchment Committee of the NEC resolved that the charges were not clear and ordered a re-trial of the matter.

8 & 9 JULY 1997

The hearing was held in the presence of the appellant.

On 8 July 1997 the appellant refused to answer the allegations and kept saying he did not understand anything despite several explanations of the charge.

On 9 July 1997 the appellant said he did not need the security guard to be called as a witness. He said the memo with instructions was not directed at him but at the hotel staff although he knew about it. He suggested that he was not employed by the hotel and was not a member of its staff. He said: “If this is the case I will decline and remain numb (dumb?) and you can do whatever you want”. He said he did not see the reason for the continued sitting if there was no identified objective. He also said: “I have not defended myself enough as I do not know the objective. I haven’t been given a proper allegation.”

11 JULY 1997

When the hearing continued on 11 July 1997 the appellant said he went through his defence and said playing slot machines was an offence that was not in the Code but in the Hotel Casino Policy Code only. He said at one stage that the hearing should adjourn as he was very cross and not in the mood to continue.

At the end of that day’s hearing it was decided that the appellant should be dismissed. A letter advising him of that decision was written on 12 July 1997.

The appellant appealed against this decision. The Appeals Committee of the NEC decided to dismiss the appeal.

The appellant then noted an appeal to the Labour Relations Tribunal (“the Tribunal”). In his notice of appeal to the Tribunal, the appellant said that the decision of the Appeals Committee of the NEC was grossly unreasonable and irrational; the charge was not specified in the Code; the Appeals Committee of the NEC erred in accepting the statement of the security guard; and there was no lawful order. The appellant also alleged that the Appeals Committee of the NEC had denied him the opportunity to defend himself.

The Tribunal found that there was no merit in the appeal and that it was baseless. It dismissed the appeal.

The appellant has now appealed to this Court. In his notice of appeal he alleges that the decision of the Tribunal is so grossly unreasonable and irrational that no reasonable tribunal could have reached such a judgment. He says this is because the Tribunal upheld a decision of the Appeals Committee of the NEC, which decision was unprocedurally arrived at. He says that Appeals Committee of the NEC did not invite the appellant for a hearing.

This ground of appeal is clearly false, as the record shows that he was present and took part in the proceedings that took about three days.

The second ground of appeal has no basis. The changing of the number of participants, by reducing the size of the Committee, did not prejudice the appellant in any way.

The third ground of appeal is baseless and does not make sense either. This was not a criminal trial in which the Tribunal had to prove the appellant’s guilt beyond a reasonable doubt, as he alleges.

The appellant’s grounds of the appeal to the Tribunal do not refer to the arguments that he raised in this Court. There was nothing wrong with the constitution of the Workers Council.

The appellant tried to appeal on the basis of proceedings that were nullified.

The appellant does not dispute that there was a permanent ban on staff gambling. He was aware of this fact. The evidence of the security guard was clear and convincing. On his part, the appellant did not present any clear evidence other than denials and refusing to explain what happened. All he did was to keep saying that he did not understand the charge, but showed, by way of the questions he asked at the hearing, that he clearly understood the charge against him. The record reveals his full participation in the proceedings and how be behaved.

The memo issued by management was addressed to Hotel staff. Appellant cannot be correct in suggesting that it was not applicable to him when he was also employed at the hotel. He was Zimbabwe Sun staff.

In the circumstances, the Tribunal was correct in dismissing the appellant’s grounds of appeal as baseless.

Most of the findings made by the Tribunal are factual and not appealable to this Court.

The appeal is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

Dube, Manikai & Hwacha, respondent's legal practitioners