DISTRIBUTABLE (34)

Judgment No. SC 41/03

Civil Appeal No. 332/02

INTERMARKET BUILDING SOCIETY (FORMERLY FOUNDERS BUILDING SOCIETY)

v AARON MWENJE

SUPREME COURT OF ZIMBABWE

SANDURA  JA, ZIYAMBI JA & GWAUNZA JA

HARARE, SEPTEMBER 15 & DECEMBER 11, 2003

T Biti, for the appellant

H Zhou, for the respondent

GWAUNZA JA: This is an appeal against a judgment of the Labour Relations Tribunal (“the Tribunal”), in terms of which the appellant was ordered to reinstate the respondent to his original position without loss of salary or benefits. In the event that such reinstatement was no longer possible, the appellant was ordered to pay the respondent damages, whose quantum was to be agreed between the parties, failing which each party could approach the Tribunal for such quantification.

The facts of the matter are as follows. The respondent was employed by the appellant as a computer shift leader. On 25 December 1999 the respondent started work on the 12.00 midnight to 8.00 am shift. He was in charge of the IT Department, and his responsibility was to monitor and ensure that the dividend run kept running. In the event of the dividend run failing, he was to advise his superiors of the failure.

The respondent left his place of work around 5.00 am without informing, or getting the permission of, his superiors. During his absence the dividend run failed, resulting in a report of this failure not being made timeously, as would have been required.

The respondent was thereafter asked to explain in writing why he had absented himself from work without leave. Even though he complied with this request, and apologised for his behaviour, the respondent was nevertheless charged and summoned to attend a disciplinary hearing.

According to the minutes of the disciplinary hearing then held, the charge laid against the respondent was simply “gross negligence”. The committee resolved at the end of the hearing to dismiss the respondent from his employment.

The respondent appealed to the appellant’s chief executive officer who effectively dismissed the appeal, prompting the respondent to file an appeal with the Tribunal. The Tribunal found that the appellant had “erred” in charging the respondent with gross negligence when an appropriate charge would have been absenteeism as defined in para 4.11 of its Code of Conduct.

Ms Mhuri of the Tribunal, who heard the appeal, observed as follows:

“The explanation by the respondent (now the appellant) for charging gross negligence instead of charging leaving (his) work station early (absenteeism), that because the dividends failed to run during his absence thereby resulting in wasted time, cannot, in my view, amount to gross negligence. In the least this amounted to ordinary negligence with serious consequences. Gross negligence as defined and discussed connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty. Bickle v Joint Ministers of Law and Order 1980 (2) SA 764.

The appellant’s action certainly does not fit in(to) this definition. I agree with the appellant’s uncontroverted submission that the resultant failure of the dividends (was) not due to his absence and that the failure was due to happen whether he was present or not and was only to be attended (to) by his supervisor. The only consequence of his absence was the late attending to the problem due to late reporting.

In the premise I find that the charge of gross negligence was ill-conceived and cannot be allowed to stand.”

Mr Biti, for the appellant, has, correctly in my view, conceded that the Tribunal’s finding on the charge of gross negligence is unassailable.

He, however, persists with the appellant’s first ground of appeal, which is to the effect that the Tribunal erred and misdirected itself in ignoring the fact that the respondent had been charged with breaches of two other clauses of the Code of Conduct, that is, 4.4.7 and 4.4.17. Clause 4.4.7 of the Code of Conduct outlaws conduct that amounts to “habitual and substantial neglect of one’s duties”, while clause 4.4.17 penalises conduct that amounts to “any act, conduct, or omission inconsistent with the fulfilment of the expressed or implied conditions of the contract of employment”.

Mr Gijima, for the respondent, argues in limine that this ground of appeal does not raise a point of law. This argument is disputed by the appellant.

In support of their conflicting positions on this point, the parties have, in their heads of argument, correctly stated the law concerning the determination of whether or not an appeal from the Tribunal to this Court is on a question of law or fact. They have cited numerous case authorities to support their averments. (See, among others, Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); National Foods Ltd v Magadza S-105—95; Gauntlet Security Services (Pvt) Ltd v Mbijana S-82-99; and Mpumela v Berger Paints (Pvt) Ltd 1999 (2) ZLR 146 (S)).

In Muzuva v United Bottlers (Pvt) Ltd supra the learned CHIEF JUSTICE cited, with approval, a passage in Media Workers’ Assocation of South Africa Ltd 1992 (4) SA 791 (A), in which it was pointed out that the term “question of law” is used in three distinct though related senses. In relation to the third sense, the learned judge in the latter case stated:

“… and third, any question which is within the province of a judge instead of the jury is called a question of law.”

I find this dictum to be relevant to the circumstances in casu. Had the jury system existed in our jurisdiction, I have no doubt that the consideration (or non-consideration) by the Tribunal, in an appeal case, of all charges brought against the respondent in a lower forum would properly have fallen “within the province” of a judge. It follows, therefore, that the ground of appeal to the effect that the Tribunal ignored one of the charges brought against the appellant raises a question of law.

To that extent, I consider the appeal to be properly before this Court. There is thus no merit in the point raised in limine by the respondent.

I will now consider the merits of this ground of appeal.

It is not in dispute that the appellant’s chief executive officer upheld the respondent’s appeal in relation to the charge under clause 4.4.7. If regard is had to the concession made by Mr Biti in relation to the charge under clause 4.4.16, the only issue for determination is the Tribunal’s finding, or lack thereof, concerning the charge under clause 4.4.17.

It is evident that the Tribunal neither specifically addressed, nor made any finding relating to, the charge under clause 4.4.17 of the appellant’s Code of Conduct.

Mr Gijima, for the respondent, contends in support of this stance of the Tribunal that at the disciplinary hearing the charge relating to conduct inconsistent with the express or implied conditions of his employment (clause 4.4.17) was never put to the respondent. He contends further that even if such charge had been put to the respondent, it could not have been sustained since there was a specific provision in the Code of Conduct (clause 4.4.6) which dealt specifically with absenteeism. Mr Gijima contends further that since a charge under clause 4.4.6 is less serious than those under clauses 4.4.7, 4.4.16 and 4.4.17, the inference was inescapable that the appellant was determined to lay against the respondent a charge serious enough to warrant his dismissal.

There is much in the evidence before this Court to support Mr Gijima’s contention regarding the charges put before the respondent by the disciplinary committee. The notice summoning the respondent to attend a disciplinary hearing informed him he was to answer:

“… charges of gross negligence and/or habitual negligence in contravention of sections 4.4.7, 4.4.16 and 4.4.17 of the Society’s registered Code”.

A closer analysis of this notice suggests –

(i) that the respondent was being charged with gross negligence, alternatively, or in addition to that charge, with habitual negligence; and

(ii) that the charges translated to a violation of clauses 4.4.7, 4.4.16 and 4.4.17 of the appellant’s Code of Conduct.

As already indicated, the main charge fell under clause 4.4.16 while the alternative, or additional, charge fell under clause 4.4.7 of the Code of Conduct. The charge that fell under clause 4.4.17, i.e. conduct inconsistent with the fulfilment of one’s conditions of employment, was not specifically articulated in the notice. This renders inaccurate the assertion that the two charges cited, singly, in the alternative or together, constituted a violation of clause 4.4.17 of the Code of Conduct.

Effectively, therefore, the respondent was summoned to answer only two charges relating to clauses 4.4.7 and 4.4.16. This situation, in my view, was not altered by what was in fact the erroneous citation of clause 4.4.17. It was reinforced at the disciplinary hearing where, although the charge laid against the respondent was recorded in the minutes thereof as simply “gross negligence”, the respondent was also specifically charged with “habitual and substantial neglect” of his duties. This latter fact emerged from the respondent’s notice of appeal to the chief executive officer.

The chief executive officer of the appellant, who heard the respondent’s appeal against the finding of the disciplinary hearing, dismissed the charge relating to clause 4.4.7. He stated in his determination that he had perused the record of the proceedings and that he concurred with the disciplinary committee “to the extent that it found you guilty in terms of sections 4.4.16 and 4.4.17 of the Employment Code of Conduct”.

The appellant’s chief executive officer did not participate in the disciplinary hearing. I have already determined that the charge under clause 4.4.17 of the Code of Conduct was not put to the respondent. This is because there is no indication anywhere in the papers before the Court that this was done. The chief executive officer clearly read more into the record of the disciplinary hearing proceedings than was actually recorded. Accordingly, since that charge was not laid against the respondent, it follows the chief executive officer could not have properly concurred with, nor upheld, a finding that was never made by the disciplinary hearing.

There is, therefore, merit in the respondent’s contention that the only matter for determination before the Tribunal was the finding of the appellant’s chief executive officer that the respondent was guilty of gross negligence, a dismissable offence. There was no basis upon which the Tribunal could have traversed a charge that was never properly laid against the respondent.

The ground of appeal that the court a quo erred and misdirected itself in not dealing with the aspects of the respondent’s liability based on this clause is therefore without foundation.

The appeal must accordingly fail.

In the premises, the appeal is dismissed with costs.

SANDURA  JA: I agree.

ZIYAMBI JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners

Wintertons, respondent's legal practitioners