DISTRIBUTABLE (67)

Judgment No. SC. 72/05

Civil Appeal No. 49/04

BARCLAYS BANK OF ZIMBABWE LIMITED

v SHEPHERD NDIRAYA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA JA & GWAUNZA JA

HARARE, JUNE 30, 2005 & JANUARY 25, 2006

G V Mamvura, for the appellant

M A Gijima, for the respondent

MALABA JA: The respondent was employed by the appellant as a senior security and investigations manager. On 28 April 2003 he was charged under the Barclays Bank Managerial Employees Code of Conduct (“the Code”) with the commission of “any act, conduct” inconsistent with the fulfilment of the express or implied conditions of his contract of employment under Category 4 section 5.4.4. The allegation against the respondent was that he had sold a Mazda B1600 motor vehicle to a relative by private treaty contrary to instructions from the appellant’s legal advisor and the head of operational risk management to dispose of the motor vehicle by public auction.

A disciplinary hearing was held, at the end of which the hearing officer found the respondent guilty of wilful disobedience to a lawful order given by the employer under Category 3 section 5.3.12 of the Code. The respondent had not been charged with the offence of wilful disobedience to a lawful order given by the employer. There was no evidence that the question whether he had committed the offence charged had been determined. He was, however, dismissed from employment on 9 May 2003.

On 15 May 2003 the respondent, through his legal representative, wrote to the appellant arguing that a gross irregularity had been committed in the disciplinary hearing proceedings, in that he had been found guilty of an offence with which he had not been charged. He demanded a reversal of his dismissal and unconditional reinstatement pending a “decision as to how to proceed”.

The appellant, through its human resources advisor, agreed with the respondent that there had been a failure by the hearing officer to determine the question raised by the disciplinary hearing proceedings and accordingly notified him by letter dated 20 May 2003 that he was reinstated with full pay and other benefits with effect from the date of dismissal. He was also advised that he was being suspended from duty with full pay on the same charge of contravening s 5.4.4 of the Code. By letter dated 21 May 2003 the respondent was invited to attend a disciplinary hearing on 30 May 2003.

On 29 May 2003 the respondent made an urgent application to the Labour Court seeking an order interdicting the appellant from conducting any further disciplinary hearing proceedings to determine the question whether he had breached s 5.4.4 of the Code by selling the Mazda B1600 motor vehicle by private treaty contrary to instructions from the legal advisor and the head of operational risk management to dispose of it by public auction. The ground of the application was that he had been acquitted of the charge by the first hearing officer.

The respondent decided not to attend the disciplinary hearing, which was nonetheless conducted in his absence on 30 May 2003. He was found guilty as charged and dismissed from employment.

The hearing of the application made by the respondent to the Labour Court on 29 May 2003 was commenced on 16 January 2004. The original relief sought was amended to include an order that the decision to dismiss the respondent from employment on 30 May 2003 was unlawful. At the conclusion of the hearing of the application the learned senior president made an order in the following terms:

“(1) That the application succeeds and the purported dismissal of the applicant be and is hereby set aside;

(2) That the respondent be and is hereby barred from conducting further disciplinary proceedings against the applicant in terms of section 5.4.4 of its Code of Conduct pertaining to misconduct deemed to be inconsistent with the fulfilment of the express or implied conditions of the applicant’s contract of employment with the respondent;

(3) That the applicant remains employed by the respondent and is entitled to his back pay and benefits with interest at the prescribed rate as from the date of the purported dismissal (i.e. 30 May 2003) until payment in full;

(4) That in the event of the respondent refusing to allow the applicant to continue in its employ then the respondent should pay the applicant agreed damages in lieu of continued employment. If the parties fail to agree on damages the parties are free to approach this court for quantification; and

(5) That the respondent shall pay the costs of this application.”

Although the appellant appealed against paras 2 and 4 of the order of the court a quo, we are satisfied that the learned senior president had no jurisdiction to make the order that was sought by the respondent. The Labour Court is a creature of statute. Its powers are derived from the provisions of the Labour Relations Act [Chapter 28:01] (“the Act”). Specific reliefs that may be sought from the Labour Court by way of an application are set out in ss 93(7)(a) and 93 (7)(b) of the Act. None of them was sought in this case. Section 89(2)(d) provides that “any other relief” must be exercised in terms of the appropriate provisions of the Act.

There is no provision in the Act empowering the Labour Court to set aside on an application a decision to dismiss an employee taken under an employment Code of Conduct. The decision to dismiss an employee can only be set aside by the Labour Court on appeal under s 89(2)(b) of the Act. There was no appeal noted against the decision made on 30 May 2003 to dismiss the respondent from employment.

As the Labour Court can only hear and determine applications for relief specified under the appropriate provisions of the Act and there was no power to grant the relief sought by the respondent, the learned senior president could not interdict the appellant from conducting disciplinary hearing proceedings under its employment Code of Conduct.

There was nothing procedurally unlawful about the disciplinary hearing conducted by the appellant on 30 May 2003. The parties agreed that there had been a failure by the first hearing officer to exercise jurisdiction. In determining a question different from that submitted for determination, the first hearing officer had not acquitted the respondent of the charge preferred against him. When the parties agreed to treat the proceedings as a nullity, reinstate the respondent in his employment and start the disciplinary proceedings afresh, the appellant was entitled to charge the respondent with the offence of contravening s 5.4.4 of the Code of Conduct based on the same allegation as had been made against him at the first disciplinary hearing. The respondent had proper notice of the disciplinary hearing proceedings held on 30 May 2003, but decided not to attend and make representations on his defence. He was found guilty of a dismissible offence and no appeal was noted against the decision. He stands dismissed from employment.

I would accordingly allow the appeal with costs, set aside the order of the Labour Court and substitute in its place the following order –

“The application is dismissed with costs”.

CHIDYAUSIKU CJ: I agree.

GWAUNZA JA: I agree.

Scanlen & Holderness, appellant's legal practitioners

Gill, Godlonton & Gerrans, respondent's legal practitioners