DISTRIBUTABLE (86)

Judgment No. SC 114/04

Civil Appeal No. 107/04

SAPES TRUST (PRIVATE) LIMITED v DORCAS MANGENA

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & GWAUNZA JA

HARARE, OCTOBER 26, 2004 & JANUARY 13, 2005

S Njerere, for the appellant

No appearance for the respondent

SANDURA JA: This is an appeal against a judgment of the Labour Court which dismissed with costs the appellant’s appeal to that court against the decision of the senior labour relations officer who had ordered the appellant to reinstate the respondent without loss of salary and benefits, or pay her damages in lieu of reinstatement.

The factual background is as follows. The respondent (“Mangena”) was employed by the appellant (“the Trust”) as a secretary with effect from 12 May 1998. A year later, on 12 May 1999, she was suspended without pay and other benefits in terms of s 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985, published in Statutory Instrument 371 of 1985 (“the Regulations”), pending the authorization of her dismissal by a labour relations officer.

The letter of suspension, which was written by one of the directors of the Trust, in relevant part, reads as follows:

“… I hereby suspend you … without pay and benefits, in terms of the above Statutory Instrument, 371/85. The charge against you is your conduct, which is inconsistent with the fulfilment of the express and implied terms of your contract (section 3(1)(a) of Statutory Instrument 371/85). More fully –

On the afternoon of Friday April 16, 1999 you received $15 200 meant for Daily Subsistence Allowances for conference delegates. You should have either handed over the money to the Administrator, Miss Chiriga, or made arrangements with the finance office to keep the money in the safe. Instead you took the money home for four days over the long weekend until Tuesday, April 20.

Mrs Zambuko, the officer responsible for disbursing the funds, then asked you to hand over the $15 200 so that she could start giving participants their allowances. You both counted the money and there was only $8 000, instead of $15 200. Mrs Zambuko declined to accept the money until you had the full amount, which you promised to do that same day. Of the missing $7 200 you stated that you loaned $3 000 of the organisation’s money to Vista Mbewe, Mrs Kazembe’s secretary. I need not stress the fact that this was unauthorized and gross misuse of the organisation’s funds.

You then reported that on Wednesday morning, April 21, you were carrying the money in your handbag when a thief snatched your bag. You had all the opportunity to hand the money over to a senior officer the previous day, yet you continued to neglect your responsibility to ensure the safety of the money. Clearly you had been unable to make up the loss of the missing $7 200, which was the precondition for Mrs Zambuko to take over responsibility for the money.

The organization had to take emergency measures to get more funds for participants, and this caused a delay that embarrassed participants and put our organization into disrepute.

In addition, $3 000 was entrusted to you for the purchase of cell-phone charge cards. Instead of purchasing the cards urgently as requested, you deposited the money into your personal account. No employee is permitted under any circumstances to deposit the organisation’s funds into a personal account …”.

The Trust forthwith applied to a labour relations officer for the authority to dismiss Mangena. That application was subsequently heard in July 1999 and was dismissed on 16 August 1999. The labour relations officer ordered the Trust to reinstate Mangena without loss of salary and other benefits, or pay her damages in lieu of reinstatement.

Thereafter, acting upon a request by the Trust, the labour relations officer referred the matter to a senior labour relations officer who subsequently confirmed the determination made by the labour relations officer.

The Trust then appealed to the Labour Relations Tribunal (now the Labour Court). That appeal was heard by the Labour Court on 12 May 2003 and on 1 September 2003 it was dismissed with costs. Aggrieved by that decision, the Trust appealed to this Court.

The issue for consideration in this appeal is whether the Labour Court correctly concluded that Mangena had not committed any act of misconduct in terms of s 3(1)(a) of the Regulations, i.e. any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of her contract of employment.

Mangena was charged with three acts of misconduct. Firstly, it was alleged that on Friday, 16 April 1999 she received from the Trust the sum of $15 200 and took it home, instead of handing it over to the Administrator, a Miss Chiriga (“Chiriga”), or making arrangements with the finance office to keep the money in the safe. The money was meant to cover the daily subsistence allowances payable to the delegates who were attending a conference.

Secondly, it was alleged that Mangena had advanced a loan of $3 000 to a Ms Vista Mbewe (“Mbewe”), using the money she had received from the Trust, without the authority of the Trust.

And thirdly, it was alleged that Mangena had received the sum of $3 000 from the Trust for the purpose of purchasing cellphone cards, and that instead of using the money for that purpose she deposited it in her bank account.

After hearing the parties and their witnesses, the labour relations officer found that the Trust had failed to prove its allegations in respect of the second and third counts.

However, in respect of the first count the labour relations officer found that, although the allegations had been admitted by Mangena, there was nothing wrong with her conduct because on a previous occasion she had kept a large sum of money belonging to the Trust at her home for three or four days and no objection had been raised against that conduct.

That reasoning was accepted by the Labour Court. In my view, the Labour Court seriously misdirected itself. I say so because it completely overlooked vital evidence given before the labour relations officer by Mrs Maruza (“Maruza”), the secretary in the finance department, who handed the sum of $15 200 to Mangena on the day in question. Her evidence was that when she gave the money to Mangena she asked her to take it to Chiriga. Mangena, therefore, knew that the money was to be handed over to Chiriga.

Instead of taking the money to Chiriga, Mangena took it home. On the following day, Saturday 17 April 1999, she reported for duty and saw Chiriga but did not give her the money.

As Monday was a holiday, she next reported for duty on Tuesday, 20 April 1999, but did not hand over the money to Chiriga. However, when on that day Mrs Zambuko (“Zambuko”), the officer responsible for disbursing the allowances to the delegates, asked Mangena to hand over to her the money, Mangena did not have the full amount. She had $8 000 only, and gave no satisfactory explanation for the shortfall of $7 200.

Consequently, Zambuko indicated that she could only accept the full sum of $15 200, and did not, therefore, take the $8 000. Although Mangena undertook to raise the shortfall on that day and then hand over the full amount to Zambuko, she did not do so.

On the following day, Wednesday 21 April 1999, when Mangena reported for duty, she alleged that on her way to work on that day a thief had snatched her handbag and stolen all the money.

In my view, there can be no doubt that by overlooking Maruza’s evidence the Labour Court committed a serious misdirection on the facts which amounts to a misdirection in law. Accordingly, this Court has the jurisdiction to hear this appeal.

As EBRAHIM  JA said in National Foods Ltd v Stewart Magadza SC-105-95 (not reported), at p 4 of the cyclostyled judgment:

“It is true that this Court only has jurisdiction to hear an appeal from the Tribunal on a point of law … . But clearly if there is a serious misdirection on the facts, that amounts to a misdirection in law. The giving of reasons that are bad in law constitutes a failure to hear and determine according to law.”

I entirely agree with those comments.

In the present case, Mangena knew that she was required to hand over the money to Chiriga but did not do so on 16, 17, 20 and 21 April 1999. She gave no satisfactory explanation for her failure to do what she was required to do by the Trust. The fact that on a previous occasion she had taken some money belonging to the Trust to her home and kept it there for three or four days is irrelevant because the full facts of what happened on that occasion are not part of the record before this Court.

In my view, there can be no doubt that Mangena’s conduct in taking the money home and keeping it there for four or five days, instead of handing it over to Chiriga at the first available opportunity, is conduct inconsistent with the fulfilment of the express or implied conditions of her contract of employment.

The Labour Court should, therefore, have allowed the appeal by the Trust and set aside the determinations made by the labour relations officer and the senior labour relations officer.

Finally, as far as costs are concerned, I cannot see any reason why they should not be awarded to the Trust.

In the circumstances, the following order is made –

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and the following is substituted -

“The determinations made by the labour relations officer and the senior labour relations officer are set aside with costs, and Sapes Trust (Private) Limited is authorized to dismiss Dorcas Mangena with effect from 12 May 1999”.

ZIYAMBI JA: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners

Manase & Manase, respondent's legal practitioners