Judgment No. SC 115/04

Civil Appeal No. 100/02

JAMES KANDOMA v

SHADES OF BLACK COSMETICS (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, OCTOBER 21, 2004 & JANUARY 13, 2005

The appellant in person

No appearance for the respondent

SANDURA JA: This is an appeal against a judgment of the Labour Relations Tribunal (“the Tribunal”) (now the Labour Court) which ordered that the appellant (“Kandoma”) be paid his salary and benefits up to 28 November 1997, and not up to 14 October 1998 as ordered by the grievance and disciplinary committee.

The background facts may be tabulated conveniently as follows –

1. Kandoma was employed by the respondent company (“the company”) as a printer with effect from 1 July 1991. At the relevant time he was the chairman of the workers’ committee.

2. On a day in October 1997 the company’s managing director, Mrs Peters (“Peters”), found Kandoma not doing any work in his office. Instead, he was reading a booklet on horse-racing and betting. When she questioned him, he became emotional and gave no satisfactory explanation for not working.

3. During the same month, the company’s employees embarked on an unlawful collective job action. When Peters questioned them individually, they indicated that the collective job action had been organized by Kandoma. When she questioned Kandoma, he became emotional and told her that she could dismiss him if she liked.

4. Subsequently, Peters held a meeting which was attended by Kandoma and the other employees. In her address she stated, inter alia, that she had found Kandoma not doing any work in his office, and that as chairman of the workers’ committee he should lead by example. That statement offended Kandoma.

5. Consequently, on 14 November 1997 Kandoma wrote Peters a letter which, in relevant part, reads as follows:

“At my age and my long term of working I feel guilty and shameful … I think you can decide something or to dismiss me from your company. How can you keep a lazy person at your workplace? How am I going to continue working with these youngsters? So I have left everything for you to decide.”

6. Four days later, on 18 November 1997, Kandoma saw Peters in her office, and rudely told her that he was waiting for her to dismiss him, and that she should dismiss him.

7. Accordingly, on 19 November 1997, Peters wrote to Kandoma as follows:

“I refer to your letter of 14.11.97 (in) which you quoted a lot of things; and I quote your line which stated that ‘I think you can decide something or to dismiss me from your company. How can you keep a lazy person at your workplace?’; and again on the morning of the 18.11.97 when you verbally said I should fire you. You are waiting for me to fire you, and that was your statement when you were standing in my office. Please be advised that under such circumstances the company can longer keep you as from today …”.

8. After his dismissal, Kandoma informed his trade union about it. The trade union immediately wrote to Peters, challenging the dismissal and advising her to comply with the provisions of the Code of Conduct (“the Code”). Thereafter, in an apparent attempt to comply with the Code, Peters took the matter to the disciplinary committee before which she, Kandoma and other witnesses later testified. The charge was that Kandoma had been found not performing his duties. Whilst testifying, Kandoma was emotional and uttered abusive language against Peters and the members of the disciplinary committee. In the end, the disciplinary committee found the charge proved and ruled in favour of Kandoma’s dismissal.

9. On 2 December 1997 Kandoma noted an appeal to the grievance and disciplinary committee (“the committee”). The appeal was subsequently heard and determined on 14 October 1998. Although the committee found that in dismissing Kandoma there had not been a strict adherence to the procedure set out in the Code, it concluded that the relationship between Kandoma and Peters was so bad that the contract of employment had to be terminated forthwith. In addition, the committee ordered the company to pay Kandoma’s salary and benefits up to 14 October 1998, i.e. the date when the committee made its determination.

10. Aggrieved by the order that Kandoma be paid his salary and benefits up to 14 October 1998, the company appealed to the Tribunal. Before the Tribunal, it was argued on behalf of the company that Kandoma should be paid his salary and benefits only up to 28 November 1997, when he was effectively dismissed after the disciplinary committee hearing. That argument was accepted by the Tribunal, and the appeal was allowed.

Dissatisfied with that result, Kandoma appealed to this Court.

Before us, Kandoma argued that his contract of employment should not have been terminated. In my view, there is no legal basis for that argument, because when the company appealed to the Tribunal against the committee’s order that Kandoma be paid his salary and benefits up to 14 October 1998, Kandoma did not cross-appeal against the committee’s order terminating his contract of employment.

Consequently, the termination of the contract of employment was not an issue before the Tribunal. The sole issue for determination by the Tribunal was whether Kandoma should be paid his salary and benefits only up to 28 November 1997, as was submitted by the company. That issue was decided in favour of the company. That was the only decision made by the Tribunal against which Kandoma could have properly appealed to this Court.

However, it is clear from his notice of appeal and grounds of appeal that Kandoma did not challenge the Tribunal’s order that he be paid up to 28 November 1997, and not up to 14 October 1998. He simply challenged the termination of his contract of employment as if that issue had been determined by the Tribunal.

But even if the issue of the termination of the contract of employment had been properly brought before the Tribunal and had been decided in favour of the company, I do not think that Kandoma would have successfully challenged that decision in this Court. I say so because, in my view, Kandoma’s dismissal was completely justified, bearing in mind his conduct.

It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly. Any behaviour on the part of the employee which is wholly inconsistent with that relationship would render the continuance of that relationship untenable and would, undoubtedly, constitute a repudiation of the contract of employment by the employee.

In my view, that is what happened in this case. Kandoma persistently challenged Peters to dismiss him, and literally forced her to do just that. Having been dismissed, he cannot now complain.

Finally, as there was no appearance for the company, I shall not make any order as to costs.

In the circumstances, the appeal is devoid of merit and is, therefore, dismissed with no order as to costs.

MALABA JA: I agree.

GWAUNZA JA: I agree.