REPORTABLE (8)
Judgment
No. SC 27/09
Civil
Appeal No. 60/07
CLAUDIUS
MURAWO v GRAIN MARKETING BOARD
SUPREME COURT OF
ZIMBABWE
SANDURA JA, CHEDA
JA & GWAUNZA JA
HARARE, JANUARY 22,
2008 & MAY 11, 2009
C Kwaramba, for
the appellant
A Moyo, for the
respondent
SANDURA JA: This is an appeal against a judgment of the
Labour Court which dismissed an appeal by the appellant (Murawo)
against the termination of his contract of employment by the
respondent (the G.M.B.).
The background facts are as follows. Murawo was employed by the
G.M.B. as a safety, health and environment officer. Between
4 March
and 7 March 2004 the G.M.B. held a strategic planning workshop
(the workshop) at Troutbeck Inn, Nyanga.
Those eligible
to attend the workshop were divisional heads and departmental heads.
Officers below departmental heads could
also attend the workshop if
invited. Murawo was neither a divisional head nor a departmental
head.
On 5 March 2004 Murawo attended the workshop and presented his
paper. However, it later turned out that Murawos attendance
at
the workshop had not been authorised by the G.M.B. directorate. He
was, therefore, asked to leave the workshop.
On 6 March 2004 Murawo left the workshop and checked out of the
hotel, but remained within the hotel premises because he had
a cheque
to give to Mrs Zemura (Zemura), the G.M.B.s public
relations manager, who was participating in the workshop.
However, Murawos continued presence at the hotel offended the
G.M.B. directorate. Consequently, the directorate called upon
Mhonde, Murawos head of department, to ensure that Murawo left the
hotel premises. Subsequently, Murawo left Troutbeck Inn
after
giving Zemura the cheque that he was supposed to give her.
Thereafter, on 8 March 2004 Murawo was suspended without pay
and benefits on the ground that he had committed two acts of
misconduct in terms of the G.M.B. Code of Conduct (the Code).
In relevant part, the letter of suspension written by Mhonde
reads as
follows:
On Wednesday the 3rd of March 2004 you communicated to
me that the Marketing Director had invited you to the Strategic
Planning Workshop. This, however,
turned out to be untrue.
On Saturday morning at about 08.30 am on the 6th March
2004, I told you to leave the Troutbeck Inn immediately as you
were not invited to the meeting. However, up to
lunchtime you were
still at the premises and now purporting to have been tasked by the
A/CEO to discuss issues related to workers
with the Union
representatives, Mr Munodawafa and Mr Mhunza, and present
them in the Seminar. This also turned out
to be untrue.
Given the scenario explained above, Management has decided that you
be suspended without pay and benefits with immediate effect,
and you
are being charged in line with the G.M.B. Code of Conduct as follows:
1. Category I section 1:
Insubordination wilful and unreasonable disobedience of a
lawful order from a superior.
2. Category I section 5:
activities inconsistent with the express or implied condition
of his contract of employment.
In keeping with the provisions of our Code of Conduct you are
required to reply in writing answering to the above charges
Your reply must of necessity cover the following aspects:
a) Admit or deny the charges.
b) Facts to be taken into account if you admit the charges.
c) If you deny the charges, offer an explanation of the basis of your
defence
.
On 9 March 2004 Murawo replied to the letter of suspension.
His letter, in relevant part, reads as follows:
I confirm that I did not receive a written invitation to present a
paper at the Troutbeck Retreat. I, however, thought in
good faith
that since this was an important strategic planning session of the
organisation our department could take advantage
of the gathering of
eminent people in the organisation to market the Health and Safety
portfolio, which was launched some eight
months ago. I prepared a
document for presentation. Initially, the presentation was short
and just a small section of the presentation
of the Engineering
Department. I, however, developed a longer presentation which I
thought could be incorporated in the Engineering
Report.
I thought I was contributing to the organisations cause. I did
not know that in doing so I was contravening any section of
the
G.M.B. Code of Conduct. Therefore if at all I contravened
category I section 1 and 5 of the Code, the contravention
was
not wilful.
When I was excused from the activities of the 6th of March
2004, I checked out of the hotel. I, however, realised that I had
forgotten to give a cheque I had been asked to bring
to Mrs Zemura.
As the morning session had already started, I thought it was not
wise to disturb the session. I waited
for an opportune moment to
give the cheque to Mrs Zemura. That moment presented itself at
lunchtime and I duly handed over
the cheque to Mrs Zemura. At
the same time some apples and potatoes I had ordered away from the
hotel after checking out
were only delivered to me around the same
time. I then left for Harare
.
On 18 March 2004 Murawo appeared before a disciplinary hearing
committee which found him guilty on both counts, and recommended
his
dismissal. He was subsequently dismissed with effect from the date
of his suspension, i.e. 8 March 2004.
Thereafter, on 3 May 2004 Murawo appealed to the acting chief
executive officer (Muvuti) against the dismissal.
In that
appeal he alleged that he had attended the workshop because Mhonde
had indicated to him that he (Mhonde) would be comfortable
if he
(i.e. Murawo) attended the workshop and presented his own paper as an
addendum to his (i.e. Mhondes) report. He also
denied being
ordered by Mhonde to leave Troutbeck Inn. Nevertheless, on
30 May 2004 Muvuti dismissed the appeal.
Aggrieved by that
decision, Murawo appealed to the Labour Court.
After hearing evidence and considering written submissions filed on
behalf of the parties, the Labour Court allowed the appeal
in respect
of the first count, i.e. the count alleging wilful and
unreasonable disobedience of a lawful order from a superior,
but
dismissed the appeal in respect of the second count, i.e. the count
alleging that Murawo committed activities inconsistent
with the
express or implied condition of his contract of employment.
Dissatisfied with that result, Murawo appealed to this
Court.
The first issue for consideration is whether this appeal raises any
question of law. The issue is important because in terms
of
s 92F(1) of the Labour Act [Cap 28:01] (the Act)
the only appeal against a decision of the Labour Court which lies to
the Supreme Court is an appeal on a question
of law.
What is a question of law was considered by this Court in Muzuva
v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220 D-F
GUBBAY CJ said the following:
The twin concepts, questions of law and questions of fact, were
considered in depth by E.M. GROSSKOPF JA in Media
Workers Association of South Africa and Ors v Press
Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A).
Approving the discussion of the topic in Salmond on Jurisprudence
12 ed at 65-75, the learned JUDGE OF APPEAL pointed out at
795 D-G that the term question of law is used in three
distinct though related senses. First, it means a question which
the law itself has authoritatively answered to the exclusion
of the
right of the court to answer the question as it thinks fit in
accordance with what it considered to be the truth and justice
of the
matter. Second, it means a question as to what the law is.
Thus, an appeal on a question of law means an appeal
in which the
question for argument and determination is what the true rule of law
is on a certain matter. And third, any question
which is within
the province of the judge instead of the jury is called a question of
law. This division of judicial function
arises in this country in a
criminal trial presided over by a judge and assessors.
Applying those principles to the facts of the present case, I have
no doubt that the appeal raises a question of law. I say
so because
one of the issues for determination in this appeal is whether the
eiusdem generis rule of statutory interpretation applies to
the interpretation of the act of misconduct specified in s 5 of
category I
offences, the act of misconduct which Murawo was
found guilty of. That, in my view, is a question of law within the
second sense
of the term question of law set out above.
As the appeal raises a question of law, the matter is properly
before this Court.
The main issue in this appeal is whether Murawo was properly found
guilty of activities inconsistent with the express or implied
condition of his contract of employment.
However, before dealing with that issue, I would like to consider a
submission by Murawos counsel in his heads of argument.
The
submission was that the Labour Court erred in its interpretation of
the act of misconduct specified in s 5 of category I
offences, and that in terms of the eiusdem generis rule
of statutory interpretation the conduct complained of by the G.M.B.
does not constitute the act of misconduct specified in
s 5.
The act of misconduct specified in s 5 reads as follows:
Incitement, intimidation, indulging in disorderly behaviour or
activities inconsistent with the express or implied condition
of his
contract of employment.
As already indicated, Murawo was charged with activities
inconsistent with the express or implied condition of his contract
of
employment.
The submission by Murawos counsel was that the activities
inconsistent with the express or implied condition of an employees
contract of employment envisaged in s 5 must be activities in
the same genus or class as incitement, intimidation and
indulging in disorderly behaviour.
The learned author, Gail-Maryse Cockram, states the eiusdem
generis rule as follows at p 153 of her work, The
Interpretation of Statutes 3 ed:
Where a list of items which form a genus or class is
followed by a general expression, the general expression is, in the
absence of a contrary intention in the statute,
construed eiusdem
generis to include only other things of the same class as the
particular words.
I should now determine whether the eiusdem generis rule
applies to the interpretation of Employment Codes of Conduct. I do
not think it does. I say so because, in general, Employment
Codes
of Conduct are not drafted with the same expertise and precision
required for the drafting of statutes. Almost invariably
Employment
Codes of Conduct are drafted by laymen with little or no knowledge of
law.
However, even if the eiusdem generis rule applied to
Employment Codes of Conduct, I am of the view that the rule should
have no application in the present case because
it would lead to an
absurdity. It would mean that activities inconsistent with the
express or implied condition of his contract
of employment which
are in the same genus or class as incitement, intimidation
(and) indulging in disorderly behaviour would constitute acts of
misconduct, whilst
other activities inconsistent with the express
or implied condition of his contract of employment, which are not
in the same
genus or class as incitement, intimidation
(and) indulging in disorderly behaviour, which could be more
serious activities, would
not constitute acts of misconduct.
In any event, the eiusdem generis rule is not a rule of
general application, and has to be applied with caution. This point
was made by SOLOMON CJ in Rex v Nolte 1928 AD 377 at 382,
where the learned CHIEF JUSTICE said:
Moreover, the rule itself is one that has to be applied with
caution, and is not of general application. Thus LORD ESHER,
in Anderson v Anderson (1895, 1 QB 752) in commenting
upon the rule, said: I am not surprised to find that the modern
tendency of the Courts
has been to construe general words in their
ordinary sense
.
Similar views were expressed by BARON JA in S v Makandigona
1981 (4) SA 439 (Z AD) at 443H-444A as follows:
It must be remembered that the eiusdem generis rule is
only one of many rules of construction; it is not to be invoked
automatically whenever general words follow particular
words. Thus
Craies on Statute Law 7 ed says at 181:
The eiusdem generis rule is one to be applied with caution
and not pushed too far, as in the case of many decisions, which treat
it as automatically
applicable, and not as being what it is, a mere
presumption, in the absence of other indications of the intention of
the legislature.
In the circumstances, I am satisfied that the Labour Court did not
err in its interpretation of the act of misconduct specified
in s 5
of category I offences. I am also satisfied that the conduct
complained of by the G.M.B. constitutes the act
of misconduct
specified in s 5.
I now wish to determine whether Murawo was properly found guilty of
the act of misconduct specified in s 5. I have no
doubt in my
mind that he was.
In the Labour Court four people gave evidence and were
cross-examined. These were Murawo, the G.M.B. marketing director
(Makwenda),
Mhonde and Zemura.
Murawo alleged that he attended the workshop at Troutbeck Inn
because he had been invited to do so by Mhonde. That allegation
was
denied by Mhonde, who said that Murawo had told him that he had been
invited to the workshop to present his report by Makwenda.
On the
understanding that Makwenda had invited Murawo to attend the
workshop, Mhonde authorised Murawos travel arrangements.
Makwenda denied that he had invited Murawo to the workshop.
Zemura said that although initially Murawo was not part of the
group of people going to attend the workshop he subsequently told
her
that he had been asked to attend the workshop by Mhonde, and present
his report. Acting on that information, she booked him
into the
hotel.
In his judgment the Senior President of the Labour Court said the
following at pp 24-25 of the cyclostyled judgment (judgment
no.
LC/H/51/2006):
On the issue of inconsistent conduct, I am persuaded to agree with
the respondents submissions that the appellant lied and
conducted
himself in a manner not befitting an officer of his status. The
first lie relates to the issue of who actually invited
the appellant
to the workshop. I do not believe that Mr Mhonde ever invited
the appellant. The appellant would have said
so in his response to
the allegations contained in the letter of suspension. Instead the
appellant told the truth by stating
the following:
I confirm that I did not receive a written invitation to present a
paper at the Troutbeck Retreat. I, however, thought in
good faith
that since this was an important strategic planning session of the
organisation our department could take advantage
of the gathering of
eminent people in the organisation to market the Health and Safety
portfolio, which was launched some eight
months ago. I prepared a
document for presentation.
The above constitutes the truth on the issue of invitation. Any
departure from the above cannot be true. If that were not the
case
I would have expected the appellant to go further and say You
verbally invited me to present my ten page report as an addendum
to
yours. The appellant does not say so because he knows that he
had told his boss that Mr Makwenda had invited him.
That was a
lie.
And at p 26 the Senior President continued as follows:
All arrangements for the appellants attendance at the workshop
were based on lies from himself. The lie to Mrs Zemura
was
that the technical manager (Mhonde) had authorised him to attend, and
the lie to Mr Mhonde was that Mr Makwenda had
invited him
to present a detailed paper on the Safety, Health and Environment
Programme. Both officers had then in good faith
proceeded to
facilitate the appellants attendance at the workshop.
My finding therefore is that the appellant attended the workshop
without authority and that he lied about his invitation. Such
conduct was therefore inconsistent with the express and implied
conditions of his contract of employment i.e. a violation of the
expected degree of honesty and integrity.
It is clear, therefore, that the learned Senior President made
specific findings of fact on the credibility of the four
people who
testified before him. He found that Murawo had lied, and that the
witnesses who testified on behalf of the G.M.B.
had told the truth.
As stated by Herbstein and van Winsen The Civil Practice of the
Supreme Court of South Africa 4 ed at 916:
It has repeatedly been laid down that in view of the advantages
enjoyed by the trial court in seeing and hearing the witnesses
and in
being steeped in the atmosphere of the trial, an appeal court is in
general reluctant to disturb the findings of a trial
court on
questions of fact.
In the present case, I can find no reason for disturbing the
findings of fact made by the Labour Court. In my view, the
conclusions
reached by the Senior President cannot be described as
being so outrageous in their defiance of logic that no sensible
person applying
his mind to the questions to be decided could have
arrived at such conclusions.
Finally, I wish to deal with the submission made by Murawos
counsel that a penalty less than dismissal ought to have been
imposed. The issue of the appropriate penalty for misconduct
inconsistent with the fulfilment of the express or implied conditions
of a contract of employment was considered by this Court in Tobacco
Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (SC). At 218D-219A
McNALLY JA said:
In Halsburys Laws of England 4 ed vol 16
para 642 it is said:
Misconduct inconsistent with an employees proper discharge of
the duties for which he was engaged is good cause for his dismissal,
but there is no fixed rule of law defining the degree of misconduct
which will justify dismissal.
That passage is based on a dictum by LORD JAMES OF
HEREFORD in Clouston & Co Ltd v Corry [1906] AC 122 at 129
(PC), cited with approval in Laws v London Chronicle (Indicator
Newspapers Ltd) Ltd [1959] 2 All ER 285 (CA) at 287H as
follows:
Now the sufficiency of the justification depended 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
conduct in a servant which will not justify the determination
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.
I consider that the seriousness of the misconduct is to be measured
by whether it is inconsistent with the fulfilment of the
express
or implied conditions of his contract. If it is, then it is
serious enough prima facie to warrant summary dismissal.
Then it is up to the employee to show that his 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.
In the present case, Murawos misconduct can hardly be described
as so trivial, so inadvertent, so aberrant or otherwise
so
excusable, that the remedy of summary dismissal was not warranted.
On the contrary, the misconduct was serious and premeditated,
and
called for the penalty of dismissal.
In the circumstances, the appeal is devoid of merit and is,
therefore, dismissed with costs.
CHEDA JA: I agree
GWAUNZA JA: I agree
Mbidzo, Muchadehama & Makoni, appellant's legal
practitioners
Kantor & Immerman, respondent's legal practitioners
