DISTRIBUTABLE
(51)
Judgment
No. SC 60/04
Civil
Appeal No. 335/02
DELTA
OPERATIONS LIMITED T/A MEGA INDUSTRIES
v
BRIAN MPEPULA
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & MALABA JA
HARARE,
MAY 13 & SEPTEMBER 9, 2004
R
Y Phillips, for the
appellant
The
respondent in person
MALABA JA: This is an
appeal from a judgment of the Labour Relations Tribunal (now the
Labour Court) (the Tribunal) dated
5 September 2002, in
terms of which a decision to dismiss the respondent from employment
with the appellant was set aside and
an order made in its place to
the effect that he be reinstated to his original position without
loss of salary or benefits, failing
which he be paid damages, the
quantum
of which would be agreed upon by the parties or assessed by the
Tribunal on being approached by any of the parties in the event of
an
agreement not being reached.
The
respondent was employed by Megapak (Private) Limited (the
company), which is part of the Delta group of companies, at
its
plastic moulding factory at Ruwa as a shift supervisor and fitter and
turner. His duties involved overseeing the proper functioning
of
moulding machines. It was also his duty to ensure that machine
operators recorded production figures in respect of each machine
they
were using in the production books provided for the purpose. He had
to examine the production books to satisfy himself that
the figures
had been recorded. As a shift supervisor he had to ensure that
quality products were produced. Where a machine produced
rejects he
had to recycle the product and mix it with high density polythene to
obtain the correct product. Production of rejects
was regarded as a
loss to the company because they were not being bought in the market.
On
9 March 1999 the respondent appeared before a disciplinary
hearing committee of the company charged with poor work performance.
The allegations were that on 1 February 1999, whilst acting as
the shift supervisor, the respondent had failed to examine
the
production book for machine no. 3 and as a result did not know
that the machine operator had not recorded the production
figures for
that machine on the day in question. It was also alleged that on
23 February 1999 the respondent, as a shift supervisor,
had let
a machine produce rejects throughout the shift.
The
appellant proceeded in terms of a Code of Conduct registered in
respect of Delta Operations (Private) Limited. The Code of
Conduct
was registered in 1991, whilst Megapak (Private) Limited was
incorporated in 1993. When the Code of Conduct was registered
the
undertaking was known as Mega Industries, to which the Code of
Conduct did not apply.
The disciplinary committee
found the respondent guilty of the charge of poor work performance
and recommended to the managing director
that his contract of
employment be terminated. The respondent was then serving a final
written warning.
When
the matter came before him, the managing director of the company took
the view that the respondent had the potential of improving
his work
performance as long as he changed his negative attitude towards
authority. Although he found that the respondent had correctly
been
found guilty of poor work performance, the managing director imposed
the penalty of another final written warning on the respondent
instead of dismissal. He sent the respondent the final written
warning and asked him to sign it. The respondent took a long time
to sign the final written warning until the managing director
believed that the respondent was mistaking the leniency extended to
him for weakness on the part of management.
On
4 June 1999 the managing director revoked his decision to give
the respondent a final written warning and substituted it
with
dismissal. The letter of termination of the respondents contract
of employment read, in relevant part:
You
have obviously interpreted the leniency exercised as a sign of
weakness on managements part and as an indicator of
indispensability
on your part. I therefore find myself with no
option but to rescind my earlier decision to allow you an opportunity
to reform and
to uphold the committees recommendation to have you
summarily dismissed. Your failure to acknowledge my letter dated
29 April
1999 is sufficient testimony to the effect that you do
not agree with the decision spelt out therein, i.e. overturning the
committees
recommendation. This letter therefore serves to
formally advise you of the summary termination of your contract of
employment with
effect from 3 June 1999. The salaries officer
will be advised to work out your terminal benefits.
The
respondent appealed to the Tribunal against his dismissal. The
grounds of appeal were that the appellant could not proceed
in terms
of a Code of Conduct registered for Delta Corporation (Private)
Limited. He contended that, being a legal entity, the
company ought
to have had its own registered Code of Conduct, which it would have
been bound to follow if it intended to dismiss
him from employment
for poor work performance. As it could not terminate his employment
for misconduct in terms of an unregistered
Code of Conduct, the
company was bound to follow the procedure laid down under the
provisions of the Labour Relations (General Conditions
of Employment)
(Termination of Employment) Regulations, Statutory Instrument 371 of
1985 (SI 371/85). He argued that
as the company had not
complied with SI 371/85, which required an employer to obtain
the prior written approval of the Minister
of Labour before summarily
dismissing or otherwise terminating a contract of employment with an
employee, the decision to dismiss
him from employment was null and
void.
The Tribunal found as a fact
that the company did not have a registered Code of Conduct. It found
that as it had not complied with
the provisions of SI 371/85 the
dismissal of the respondent was unlawful. It correctly rejected the
argument that on the authority
of the decision in Forestry
Commission v Kujinga
HH-36-92 acceptance of terminal benefits by the respondent
constituted acceptance of termination of employment in terms of s 2
of SI 371/85. There was no mutual termination of the contract
of employment by agreement
in writing (the
underlining is mine for emphasis).
It appears to me that the
Tribunals approach begs the question whether the decision of the
managing director to dismiss the respondent
from employment would in
the circumstances have been valid if the company had a registered
Code of Conduct. The question for determination
by the Tribunal was
whether or not the managing director was entitled to rescind the
decision to impose the penalty of a final written
warning and
substitute it with dismissal. Had the Tribunal addressed its mind
to the proper question for determination, it would
have realised that
it was immaterial whether the company had a registered Code of
Conduct because it would have been clear that the
managing director,
having made the decision on the facts before him, became functus
officio. There was
no question of a mistaken decision. The managing director knew what
he was deciding upon and as such could not alter
the penalty from a
final written warning to dismissal. He had decided that the
misconduct committed by the respondent did not go
to the root of the
contractual relationship between the employer and the employee and
imposed a final written warning as the appropriate
punishment.
An
official cannot make a decision which affects or abolishes rights
which his previous act has already created. Such a favourable
decision may only be revoked with the consent of the beneficiary.
Intolerable uncertainty would result if previous decisions favourable
to employees were to be reversed at any moment by the same official
who would have made them with full knowledge of the facts on
which
the decision had to be based.
It
must follow that, as the managing director was not entitled to
reverse the earlier decision to impose the penalty of a final
written
warning, the question whether or not the company ought to have
complied with the provisions of SI 371/85 did not arise
for
determination because such an obligation attached to an employer who
intended to terminate the contract of employment with the
employee.
In this case a final written warning did not have the effect of
terminating the respondents contract of employment.
There
cannot be any question of the respondent not having been properly
found to have committed the misconduct of unsatisfactory
work
performance. He failed to check the production book for machine
no. 3 and discover that the operator had not recorded
production
figures. The admitted failure to discharge his duties constituted
unsatisfactory work performance. It was also no
defence at all to
say he let a machine produce reject plastic moulds for the whole
period of his shift because he did not have access
to high density
polythene.
Although
for different reasons, this Court has come to the same conclusion as
the Tribunal, that the dismissal of the respondent
was unlawful.
The decision of the Tribunal did not, however, take into account the
fact that the respondent was properly found
guilty of the acts of
misconduct charged against him and that the penalty of a final
written warning was properly imposed on him.
The
appeal is dismissed with costs. The order of the Tribunal is
altered to reads as follows
Accordingly,
the appeal is allowed. The decision to dismiss the appellant from
employment is set aside with costs. The original
decision of the
managing director finding the appellant guilty of poor work
performance and imposing on him the penalty of a final
written
warning is to stand. The respondent is ordered to reinstate the
appellant in his original position from the date of dismissal
without
loss of salary and benefits. If reinstatement is no longer
possible, the respondent is ordered to pay the appellant damages,
the
quantum
of which is to be agreed by the parties failing which either party
may approach the Tribunal for quantification.
SANDURA JA:
I agree.
CHEDA
JA: I agree.
Gill, Godlonton & Gerrans,
appellant's legal practitioners
