REPORTABLE (106)

Judgment No. SC. 130/04

Civil Appeal No. 54/04

TRACY MVERE v TANGANDA TEA COMPANY LIMITED

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, NOVEMBER 9, 2004

The appellant in default

N Moyo, for the respondent

MALABA JA: This is an appeal from a judgment of the Labour Court dated 25 February 2004 dismissing an appeal by the appellant from the decision of the respondent (“Tanganda”) to dismiss her from employment on grounds of misconduct. At the time the appeal was heard there was no appearance for the appellant (“Tracy”). She had, however, filed detailed heads of argument. We proceeded to hear submissions on behalf of Tanganda, at the end of which we dismissed the appeal with costs and indicated that reasons would follow in due course. These are they.

It is common cause that Tracy was employed by Tanganda as a taxation manager/accountant. She was dismissed from employment on 17 October 2000 after having been convicted of three offences under the Tanganda Tea Company Employment Code of Conduct (“the Code”). The offences she was convicted of were –

1. Misconduct inconsistent with the fulfilment of the express or implied conditions of one’s contract of employment;

2. Wilful disobedience to a lawful order given by the employer;

3. Wilful and unlawful destruction of the employer’s property.

Tracy unsuccessfully appealed against her dismissal to the appeals committee and thereafter to the Labour Court. In stating the grounds of appeal to this Court Tracy said:

“1. I feel the Honourable Court erred in granting authority to dismiss when evidence brought by the appellant was not considered.

2. The wrongs done by the respondent to the appellant over ten years were not considered.

3. Seeking that Tanganda makes good that is for damages suffered.”

Paragraph 3 is not a ground of appeal at all. It constitutes a claim for damages that Tracy has not instituted against Tanganda. No more will be said about it. I agree with Ms Moyo that paragraphs 1 and 2 raise the same complaint, that evidence of mitigating factors was not considered.

There is no appeal against the determination that Tracy committed the acts of misconduct that caused her dismissal. That there was a breach of contract by her is therefore common cause. The question for determination is whether the decision of the Labour Tribunal that her dismissal was justified was so outrageous in its defiance of logic that no reasonable tribunal could have made it. I shall consider whether there was sufficient justification of Tracy’s dismissal by reference to misconduct inconsistent with the fulfilment of the express or implied conditions of her contract of employment.

Tracy joined Tanganda in 1990 as a taxation manager. She is an accountant by profession. On 5 September 1997 her job description was amended to include the control of the processing and reconciliation of receipts and payments via the cash book. It was her duty to ensure that daily financial returns and monthly bank reconciliation statements were prepared timeously. It was an implied condition of the contract of employment that she would preserve official documents in her custody in their complete and regular state. The financial division was headed by the group financial manager, who at the relevant time was Mrs B Sharples. Reporting directly to Mrs Sharples were the chief accountant, Mr H Matanga, and the senior accountant, Mr O Ndondodzai.

In January 2000 Mrs Sharples instructed Mr Matanga to review bank reconciliation statements prepared by Tracy’s department. This followed observations by external auditors in their report to management for the financial year ending October 1999. Tracy did not accept the idea of Mr Matanga having to review what she considered to be her work. She was uncooperative, prompting Mrs Sharples to write her a letter on 28 February 2000, ordering that she should not obstruct the execution of her lawful instruction. The letter read, in relevant part:

“Mr Matanga was instructed by me to monitor the procedures being followed in your section. He reports to me and such reviews are part of his job description. I will not tolerate you obstructing this process. Mr Ndondodzai has been instructed to check all of your journal vouchers and I am hereby instructing you to cooperate with both of these individuals in their endeavours to provide me with what I need. That is my prerogative.”

In June 2000 Mr Matanga checked monthly bank reconciliation statements, starting from September 1999. He affixed his signature on the documents as proof of the fact that the instruction from the group financial manageress had been duly carried out. When Tracy came across the documents bearing Mr Matanga’s signature, she tore off the portion with the signature. She tore five bank reconciliation statements for the months of November and December 1999 and for February, March and April 2000. Without disclosing that she had torn the documents, Tracy confronted Mr Matanga and asked him why he had checked her work. He told her that the review was in terms of the instruction from Mrs Sharples.

On 27 September 2000 Mr Nyanhete, the internal auditor, was carrying out his duties when he came across the torn bank reconciliation statements. When he asked Tracy, she admitted having seen the documents but professed ignorance of who could have tampered with them in that manner.

On 28 September 2000 Mr Nyanhate reported to Mrs Sharples that he had discovered bank reconciliation statements with Mr Matanga’s signature torn off. At about 2.00 pm Mrs Sharples, Mr Matanga and Mr Nyanhete went to Tracy’s office. She was asked by Mrs Sharples about the torn documents. Tracy admitted that she had seen the torn documents but denied any knowledge of who tore off Mr Matanga’s signature. Asked why she did not, as head of the department responsible for the security of the bank reconciliation statements, order an investigation into the matter, Tracy stood up and started walking out of the office as Mrs Sharples ordered her not to leave whilst she was still talking to her. When she got to the corridor, and within the hearing of other employees, Tracy shouted at Mrs Sharples words to this effect:

“What do you want from me? You are always following me and checking my work. I am going to the toilet. Leave me alone.”

Probably realising the folly of her outburst of bad temper and having calmed down, Tracy approached Mrs Sharples in her office and handed her a letter of apology. It is then that Tracy admitted to Mrs Sharples that she had torn off Mr Matanga’s signature from the bank reconciliation statements.

Tracy was suspended on full pay and benefits. On 29 September 2000 she was charged with the offences she was later found guilty of having committed. When she appeared before the disciplinary committee to answer the charges of misconduct levelled against her, Tracy did not hide the fact that she deeply resented the idea of Mr Matanga checking the bank reconciliation statements compiled by her department. She said:

“I don’t like Matanga’s signature on my work because it is my labour and brains that go into it.”

She further retorted:

“Matanga must put his signature on my work. For what reason? So that his ego can be boosted and (he) feels important.”

She was nonetheless found guilty of the misconduct and dismissed from employment. In justifying the decision to dismiss her, the disciplinary committee said:

“Defacing of company documents in an accounting function is viewed as a very serious offence by the company and by its internal and external auditors. Source documents should never be tampered with as things may be removed that are important, such as notes of issues that need to be resolved the following month, or an individual may be trying to cover up something that they do not want to come to light either fraudulently or innocently. … These defaced documents would inevitably have attracted attention from the external auditors that are imminently due for the annual audit. As a public company reporting to shareholders and the importance of transparent and effective management of, particularly cash, resources, this would cause considerable embarrassment to management and possibly cast aspersions on the security of cash reporting and controls in all aspects of the accounting operation.”

In her appeal to the appeals committee, Tracy asked for forgiveness and alleged for the first time that she had grievances against Tanganda which she wanted taken into consideration in deciding whether her dismissal was justified. She said she had been kept in Grade 10 for six years without promotion. Other employees had the opportunity of purchasing company vehicles that had been issued to them. It, however, became clear that those benefits were for employees in grades above hers.

In the appeal to the Labour Court, Tracy alleged that she was being victimised because she was perceived as a revolutionary. She reiterated her charge that she had been kept in Grade 10 for many years in order to deny her benefits enjoyed by employees in higher grades. The learned President of the Labour Court, in upholding the decision to dismiss Tracy from employment, said:

“The appellant has grievances against the company. Unfortunately she fell into the trap of being highly charged. While therefore she may have valid grievances, the manner in which she has put them across only strengthens the company’s position. There is always a proper way of doing things. In this case the appellant would have been properly within her rights to follow the appropriate grievance procedure if she felt aggrieved by the manner the respondent company was treating her.”

The question whether the dismissal of an employee is justified is a question of fact dependent upon the extent of the misconduct committed and determined by reference to all the circumstances of the case. In Standard Chartered Bank Zimbabwe Ltd v Chapuka S-125-04 it was stated at p 7 of the cyclostyled judgment that:

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter. In Clouston v Corry [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a dictum at p 129:

‘Now the sufficiency of justification depends upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be misconduct in a servant which will not justify the termination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.’” (the underlining is mine for emphasis)

See also Laws v London Chronicle Ltd [1959] 2 All ER 285; National Foods Ltd v Masukusa 1994 (1) ZLR 66 (S); and Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S).

In Chapuka’s case supra dismissal of a bank manager was found to have been sufficiently justifiable because he had unlawfully and deliberately erased names of the intended payees from the bank cheques in breach of the implied condition of his contract of employment to preserve official documents in his custody in their complete and regular form.

In this case it was also an implied condition of Tracy’s contract of employment as head of the department to preserve company documents in her custody in their complete and regular state. Once Mr Matanga’s signature had been lawfully affixed to the bank reconciliation statements it became part of the documents. She clearly breached the duty to preserve the integrity of the documents when she tore Mr Matanga’s signature off. Tanganda took the view that the breach was of a serious nature going to the root of the contract of employment.

Tracy’s argument was that her conduct had no significant effect on the documents, as she had not intended to commit fraud against Tanganda. She said her intention was to draw attention to the views she held that the instruction that the bank reconciliation statements be reviewed had not been communicated to her in a proper manner. That may have been the case. It is clear from an objective point of view that her conduct undermined the relationship with the employer. It undermined the company’s chain of authority. She wanted to act as if she was self-employed.

In Mapuka’s case supra the court a quo had expressed the opinion that because the intention behind the misconduct was not to defraud the employer his dismissal was not justified. At pp 8-9 of the cyclostyled judgment it was stated that:

“The relevance of the statement by the Tribunal that the intention of Chapuka in committing the misconduct was not to defraud Standard Chartered and that no prejudice was suffered by Standard Chartered as a result of his acts is open to doubt, because the alleged intention of a fraudulent employee cannot be taken as a standard with which to determine whether an employer acted reasonably in taking the view that the misconduct was so serious in nature as to justify dismissal. The unlawful intention would have been one of the circumstances which put the employee in the position in which he considered the pursuit of personal interest more important than the honest discharge of his duties to the employer.”

Tracy was an accountant and a senior member of staff employed by Tanganda. She must have known that Mr Matanga’s signature had been placed on the documents in the performance of his duties. The work would not have been done for the personal benefit of Mr Matanga. Nor would the bank reconciliation statements have been prepared for her personal benefit. The documents belonged to the company and it was not for her to decide as to whose signature should be on them. By her own conduct she had demonstrated unwillingness to remain bound by the implied conditions of employment.

In Chimwala’s case supra McNALLY  JA said that evidence of misconduct inconsistent with the fulfilment of the express or implied conditions of a contract of employment entitled an employer to dismiss an employee unless the latter showed that the misconduct “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”.

Tracy’s conduct was clearly serious. It was deliberate in that it was committed in the quietness of the moment. She suggested that the court a quo should have found that her conduct was excusable because of the grievances she said she had against Tanganda. The learned President of the Labour Court considered the fact that the Code had rules setting out procedures for redressing grievances. Tracy was bound to follow those procedures to have her grievances redressed.

There was no obligation arising from the need to have her grievances addressed compelling the commission of the unlawful act of tearing company documents in her custody. The fact that she had grievances against Tanganda did not make the misconduct any less dismissible. The conduct remained one of a sufficiently serious and grave nature, destructive of the trust and confidence fundamental to the continuance of the relationship under the contract of employment.

There was no merit in the appeal and it was therefore dismissed with costs.

SANDURA JA: I agree.

GWAUNZA  JA: I agree.

Coghlan, Welsh & Guest, respondent's legal practitioners