No. SC 41/03
Appeal No. 332/02
BUILDING SOCIETY (FORMERLY
FOUNDERS BUILDING SOCIETY)
COURT OF ZIMBABWE
ZIYAMBI JA & GWAUNZA JA
SEPTEMBER 15 & DECEMBER 11, 2003
for the appellant
for the respondent
JA: This is an appeal against a judgment of the Labour Relations
Tribunal (the Tribunal), in terms of which the
ordered to reinstate the respondent to his original position without
loss of salary or benefits. In the event that
was no longer possible, the appellant was ordered to pay the
respondent damages, whose quantum was to be agreed
parties, failing which each party could approach the Tribunal for
facts of the matter are as follows. The respondent was employed by
the appellant as a computer shift leader. On 25 December
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
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.
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
to the minutes of the disciplinary hearing then held, the charge laid
against the respondent was simply gross negligence.
committee resolved at the end of the hearing to dismiss the
respondent from his employment.
The respondent appealed to the
appellants 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
of the Tribunal, who heard the appeal, observed as follows:
explanation by the respondent (now the appellant) for charging gross
negligence instead of charging leaving (his) work station
(absenteeism), that because the dividends failed to run during his
absence thereby resulting in wasted time, cannot, in my
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.
appellants action certainly does not fit in(to) this definition.
I agree with the appellants uncontroverted submission
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
to late reporting.
the premise I find that the charge of gross negligence was
ill-conceived and cannot be allowed to stand.
for the appellant, has, correctly in my view, conceded that the
Tribunals finding on the charge of gross negligence is
persists with the appellants 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
and substantial neglect of ones 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.
for the respondent, argues in
that this ground of appeal does not raise a point of law. This
argument is disputed by the appellant.
of their conflicting positions on this point, the parties have, in
their heads of argument, correctly stated the law
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,
v United Bottlers (Pvt) Ltd
1994 (1) ZLR 217 (S); National
Foods Ltd v Magadza
Security Services (Pvt) Ltd v Mbijana
S-82-99; and Mpumela
v Berger Paints (Pvt) Ltd
1999 (2) ZLR 146 (S)).
v United Bottlers (Pvt) Ltd supra
the learned CHIEF JUSTICE cited, with approval, a passage in
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
In relation to the third sense, the learned judge in the
latter case stated:
third, any question which is within the province of a judge instead
of the jury is called a question of law.
I find this
to be relevant to the circumstances in
Had the jury system existed in our jurisdiction, I have no doubt
that the consideration (or non-consideration) by the Tribunal,
appeal case, of all charges brought against the respondent in a lower
forum would properly have fallen within the province
judge. It follows, therefore, that the ground of appeal to the
effect that the Tribunal ignored one of the charges brought
the appellant raises a question of law.
extent, I consider the appeal to be properly before this Court.
There is thus no merit in the point raised in
by the respondent.
will now consider the merits of this ground of appeal.
It is not in
dispute that the appellants chief executive officer upheld the
respondents appeal in relation to the charge under
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 Tribunals finding, or lack thereof,
concerning the charge under clause 4.4.17.
is evident that the Tribunal neither specifically addressed, nor made
any finding relating to, the charge under clause 4.4.17
appellants Code of Conduct.
for the respondent, contends in support of this stance of the
Tribunal that at the disciplinary hearing the charge relating to
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
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,
inference was inescapable that the appellant was determined to lay
against the respondent a charge serious enough to warrant
much in the evidence before this Court to support Mr Gijimas
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:
of gross negligence and/or habitual negligence in contravention of
sections 4.4.7, 4.4.16 and 4.4.17 of the Societys registered
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;
(ii) that the charges translated
to a violation of clauses 4.4.7, 4.4.16 and 4.4.17 of the appellants
Code of Conduct.
indicated, the main charge fell under clause 4.4.16 while the
alternative, or additional, charge fell under clause 4.4.7
the Code of Conduct. The charge that fell under clause 4.4.17,
i.e. conduct inconsistent with the fulfilment of ones
of employment, was not specifically articulated in the notice. This
renders inaccurate the assertion that the two charges
in the alternative or together, constituted a violation of
clause 4.4.17 of the Code of Conduct.
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
where, although the charge laid against the respondent was recorded
in the minutes thereof as simply gross negligence,
respondent was also specifically charged with habitual and
substantial neglect of his duties. This latter fact emerged
the respondents notice of appeal to the chief executive officer.
executive officer of the appellant, who heard the respondents
appeal against the finding of the disciplinary hearing,
charge relating to clause 4.4.7. He stated in his
determination that he had perused the record of the proceedings
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 appellants 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
is, therefore, merit in the respondents contention that the only
matter for determination before the Tribunal was the finding
appellants 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
respondents liability based on this clause is therefore without
appeal must accordingly fail.
In the premises, the appeal is
dismissed with costs.
JA: I agree.
Honey & Blanckenberg,
appellant's legal practitioners
respondent's legal practitioners