REPORTABLE (95)

Judgment No. SC. 127/04

Civil Appeal No. 209/03

TOTAL ZIMBABWE (PRIVATE) LIMITED v ARNOLD MOYANA

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, OCTOBER 19, 2004 & JANUARY 27, 2005

A Gijima, for the appellant

No appearance for the respondent

MALABA JA: This is an appeal against the judgment of the Labour Court dated 27 May 2003, setting aside the dismissal of the respondent (“Moyana”) from employment with the appellant (“Total”) and ordering that he be reinstated in his original position without loss of salary and benefits failing which he be paid damages, the quantum of which was to be agreed upon by the parties or calculated by the Labour Court.

The facts of the case are these. Moyana was employed by Total as a “lube despatch supervisor” from 8 April 1999 when he signed the contract of employment. It was a requirement that a person employed as a “lube dispatch supervisor” had to have accounting skills. The specialised job description signed by Moyana stated that a person could become a “lubes despatch supervisor” only if he had passed five subjects at “O Level”, including Mathematics and Accounts or Science, and had at least one year’s working experience in a similar environment. The duties to be performed by a “lubes despatch supervisor” were described as including:

“1. Daily stock counts and updating stock ledgers.

2. Monitoring all receipts from OBEL and making purchase receipts.

3. Supervising the loading and despatching of lubes to customers, depot transfers and export orders.

4. Supervising all decants and raising the necessary documents.”

In carrying out the duty of supervising the loading and dispatching of lubes, the person was required to be present at the loading bay and personally count the number of items loaded onto the truck to satisfy himself that the correct quantities were loaded and dispatched. He was also required to physically examine the products to satisfy himself that they were of good quality. When he had satisfied himself that the loaded products were what was ordered and tallied with what was recorded in the delivery note, the supervisor would sign the delivery note certifying that the correct quantity of products had been loaded and authorising their dispatch.

In signing the contract of employment on 8 April 1999, Moyana had by implication held himself out to Total to be in possession of the skill it required in a person it intended to employ as a “lubes dispatch supervisor”. He was employed on the basis that he was possessed of the requisite skill or competence in the work described.

On 21 July 1999 Moyana was on duty when he was called to the stores office to explain aspects of his functions to internal auditors for purposes of obtaining an I.S.O. 9002 certification. A truck which was already at the loading bay was loaded with products for dispatch in the absence of Moyana.

A security guard then brought a delivery note to Moyana in the stores office. Moyana signed the delivery note certifying that the quantity of goods recorded therein tallied with that in the truck. In signing the delivery note he authorised the dispatch of the goods. Moyana had not physically examined the goods in the truck, nor had he counted them. The certification turned out to be false, in that there were eight extra cartons of 4 x 5 litres of quartz 40 motor oil loaded onto the truck, which were about to be unlawfully dispatched on the authority of the delivery note signed by Moyana.

On 3 August 1999 Moyana appeared before a designated officer charged with the contravention of s 3 of the Group IV offences under the Employment Code of Conduct for the Commercial Sector (“the Code”), that is to say, “unsatisfactory work performance related to lack of skill which the employee expressly or by implication holds himself out to possess”.

The allegation against Moyana was that in signing the delivery note without having personally counted the goods in the truck to satisfy himself that the correct number ordered was dispatched, he had breached the undertaking he had by implication made to exercise the reasonable skill in the performance of his duties as a “lubes dispatch supervisor”.

In his defence, Moyana said he signed the delivery note without verifying whether the goods recorded therein tallied with those loaded in the truck because of pressure of having to attend to the internal auditors. He, however, conceded that he could have stopped what he was doing with the internal auditors and attended to his contractual obligations.

On 13 August 1999 Moyana was found guilty as charged and dismissed from employment. He appealed unsuccessfully to the local joint committee and the negotiating committee of the National Employment Council for the Commercial Sector.

On 18 January 2001 Moyana appealed to the Labour Court on the ground that he had been wrongly charged with the offence of “unsatisfactory work performance” due to “lack of skill which the employee expressly or by implication holds himself out to possess”, which was punishable by dismissal. He said his conduct was due to carelessness. It was contended that he should have been charged with contravening s 3 of the Group I offences under the Code, that is to say, “unsatisfactory work performance” due to carelessness particularised as “performance of duty without the exercise of due care and attention”.

The Senior President of the Labour Court, in giving judgment, said that Moyana was dismissed from employment “on allegations of unsatisfactory work performance”. He went on to state that:

“The offence is classified under Group One offences where it is punishable by a written warning.

The same offence also falls under Part Four of the registered Code of Conduct where it is punishable by dismissal. … I am therefore persuaded that the appellant’s act of misconduct was punishable by a written warning in terms of Group One offences.”

The contention on appeal was that the decision of the Labour Court that one offence of unsatisfactory work performance was classified under two categories of offences in the Code for purposes of punishment and that the question for determination was whether Moyana’s act of misconduct was punishable with dismissal or by a written warning was clearly wrong. I agree.

The ground on which the judgment of the negotiating committee was appealed against was that Moyana had been wrongly charged with and found guilty of the offence of contravening s 3 of the Group IV offences under the Code. The argument was that he ought to have been charged with and convicted of contravening s 3 of the Group I offences. It was accepted that there were two offences with different essential elements classified under two different categories of offences and attracting different penalties.

Whilst both offences arose out of performance of work because of the nature of the relationship between the parties, they prohibited breaches of different legal duties in a contract of employment. The offence with which Moyana was charged prohibited breach of the undertaking by any employee upon engagement that he would exercise the skill in the performance of the work which he expressly or by implication held himself out to the employer to possess and on the basis of which representation he would have been employed. The offence was thus described as “unsatisfactory work performance” due to “lack of skill which the employee expressly or by implication holds himself out to possess”. In other words, unsatisfactory work performance was evidence of a breach in the particular circumstances of the case of the contractual obligation assumed by the employee upon engagement to exercise reasonable skill in doing the type of work for which he was employed. He would by implication have held himself out in agreeing to do a job requiring a particular skill that he had the requisite skill.

The basis of the offence is described in Chitty on Contracts 26 ed para 3899 as follows:

“An employee who holds himself out as being skilled to do a certain type of work and is employed on that basis impliedly undertakes that he possesses and will exercise reasonable skill or competence in that work. Throughout the period of the employment he owes a duty to his employer to perform his work with reasonable skill or competence.”

An employee who professes a particular skill or competence requiring training or experience would be liable to be charged with contravening s 3 of the Group IV offences if he breached the legal duty he voluntarily assumed upon signing the contract of employment.

On the other hand, an employee who did not profess a particular skill or competence and did not take up a job requiring a particular skill to do cannot be charged with the same offence because he would not have been in a position to breach the legal duty on which the offence is based. He would, like any other employee, have been under a legal duty to perform his work with due care. There would be an implied term in the contract of employment that he would exercise reasonable care in the performance of his duties. Breach of that duty would make him liable to a charge of contravening s 3 of the Group I offences under the Code.

“Skill” embraces “care”, such that facts which show lack of “due care” in the performance of work may be evidence of lack of skill which an employee charged with incapability or incompetence by implication held himself out to possess. In Lister v Romford Ice and Cold Storage Co 1957 AC 555 VISCOUNT SIMONDS said at pp 572-573:

“It is, in my opinion, clear that it was an implied term of the contract that the appellant would perform his duties with proper care. The proposition of law stated by WILLES J in Harmer v Cornelius (1858) 5 C.B.N.S. 236, 246, has never been questioned: ‘When a skilled labourer’, he said, ‘artisan, or artist is employed there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes – spondes periotiam artis. Thus, if an apothecary, a watch-maker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. … An express promise or express representation in the particular case is not necessary. I see no ground for excluding from, and every ground for including in, this category a servant who is employed to drive a lorry which, driven without care, may become an engine of destruction and involve his master in very grave liability. Nor can I see any valid reason for saying that a distinction is to be made between possessing skill and exercising it. No such distinction is made in the cited case: on the contrary, ‘possess’ and ‘exercise’ are there conjoined. Of what advantage to the employer is his servant’s undertaking that he possesses skill unless he undertakes also to use it? I have spoken of using skill rather than using care, for ‘skill’ is the word used in the cited case but this embraces care. For even in so-called unskilled operations an exercise of care is necessary to the proper performance of duty.”

When Moyana signed the contract of employment he was aware from the specialised job description, which had been brought to his attention, that it was on the basis that he had the requisite skill for the proper performance of the work that he was engaged. In signing the contract, he had by implication undertaken to exercise reasonable skill in the performance of the work in its various facets. The charge of misconduct alleging that he had failed to exercise reasonable skill in the performance of the work in breach of the undertaking to do so was in the circumstances appropriate.

The question the Labour Court should have determined was whether the decision by the negotiating committee that the evidence adduced had on a balance of probabilities proved the act of misconduct charged against Moyana was certainly wrong or, to put it another way, so outrageous in its defiance of logic that no reasonable tribunal could have made it. That is clear from the ground of appeal which was that:

“The negotiating committee of the N.E.C.C.S. misdirected itself by finding the appellant guilty of unsatisfactory work performance as charged. There was no evidence to prove that the appellant had breached clause 3 of Part 4 offences as set out in the Code of Conduct.”

In light of the misdirection committed by the Labour Court in failing to address its mind to the question, this Court is at large. It is important to bear in mind that what was in issue in this case was not the possession of the requisite skill for the particular job Moyana was engaged to do. What was in issue was whether or not he had exercised the skill. The evidence showed that he did not exercise his counting or enumerating skill, as he did not go to the loaded truck to count the items that had been loaded before signing the delivery note authorising their dispatch.

That obligation was fundamental to the proper performance of Moyana’s duties. He had held himself out to Total to possess the particular skill by producing evidence of passes he had at “O-Level” in Mathematics and Accounts. He had also acquired the necessary skill through experience.

It seems to me that in signing such an important document as a delivery note without having seen the products it referred to as having been loaded onto the truck, Moyana denied himself the opportunity of exercising any of the skills he had undertaken to exercise in the performance of his duties. He was in fact committing a fraud on his employer, in that by his signature on the delivery note he misrepresented that he had exercised reasonable skill by physically checking and counting the contents of the truck. He certified everything as being in order when that was not the case.

Moyana argued that he was under pressure to assist internal auditors with information on his duties for purposes of getting the I.S.O. 9002 certification. He was admitting that he did not exercise reasonable skill at the time he was under a legal duty to do so. To blame pressure of work is not a defence to the charge of incompetence in the circumstances because the job description in which the activities of the work he agreed to perform were set out made it clear that it was the type of work which had to be performed under pressure. He was expected to use his skills to manage the pressure and satisfactorily perform his duties.

In my view, all these facts show lack of skill which Moyana by implication held himself out to possess. On the authority of Lister’s case supra the word “possess” as used in the Code includes the word “exercise”. The evidence shows lack of skill in Moyana at the time, in the sense that he failed to exercise reasonable skill which he had undertaken to exercise in the performance of his duties. The decision of the negotiating committee finding Moyana guilty of the offence charged and dismissing him from employment was, in my view, correct.

The appeal is accordingly allowed with costs. The judgment of the Labour Court is set aside and substituted with the following –

“The appeal against the decision of the negotiating committee is dismissed with costs.”

SANDURA JA: I agree.

GWAUNZA JA: I agree.

Gill, Godlonton & Gerrans, appellant's legal practitioners