Court name
Supreme Court of Zimbabwe
Case number
SC 41 of 2003
Civil Appeal 332 of 2002

Intermarket Building Society (Formerly Founders Building Society) v Mwenje (32/02) (SC 41 of 2003, Civil Appeal 332 of 2002) [2003] ZWSC 41 (10 December 2003);

Law report citations
Media neutral citation
[2003] ZWSC 41













DISTRIBUTABLE
(34)


Judgment
No. SC 41/03


Civil
Appeal No. 332/02








INTERMARKET
BUILDING SOCIETY (FORMERLY
FOUNDERS BUILDING SOCIETY)





v
AARON MWENJE








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
SEPTEMBER 15 & DECEMBER 11, 2003








T
Biti
,
for the appellant





H
Zhou
,
for the respondent





GWAUNZA
JA: This is an appeal against a judgment of the Labour Relations
Tribunal (“the Tribunal”), in terms of which the
appellant was
ordered to reinstate the respondent to his original position without
loss of salary or benefits. In the event that
such reinstatement
was no longer possible, the appellant was ordered to pay the
respondent damages, whose quantum was to be agreed
between the
parties, failing which each party could approach the Tribunal for
such quantification.





The
facts of the matter are as follows. The respondent was employed by
the appellant as a computer shift leader. On 25 December
1999
the respondent started work on the 12.00 midnight to 8.00 am
shift. He was in charge of the IT Department, and his
responsibility was to monitor and ensure that the dividend run kept
running. In the event of the dividend run failing, he was to
advise
his superiors of the failure.






The respondent left his place of
work around 5.00 am without informing, or getting the permission
of, his superiors. During
his absence the dividend run failed,
resulting in a report of this failure not being made timeously, as
would have been required.





The
respondent was thereafter asked to explain in writing why he had
absented himself from work without leave. Even though he complied
with this request, and apologised for his behaviour, the respondent
was nevertheless charged and summoned to attend a disciplinary
hearing.





According
to the minutes of the disciplinary hearing then held, the charge laid
against the respondent was simply “gross negligence”.
The
committee resolved at the end of the hearing to dismiss the
respondent from his employment.






The respondent appealed to the
appellant’s chief executive officer who effectively dismissed the
appeal, prompting the respondent
to file an appeal with the Tribunal.
The Tribunal found that the appellant had “erred” in charging
the respondent with gross
negligence when an appropriate charge would
have been absenteeism as defined in para 4.11 of its Code of
Conduct.





Ms Mhuri
of the Tribunal, who heard the appeal, observed as follows:






“The
explanation by the respondent (now the appellant) for charging gross
negligence instead of charging leaving (his) work station
early
(absenteeism), that because the dividends failed to run during his
absence thereby resulting in wasted time, cannot, in my
view, amount
to
gross
negligence. In the least this amounted to ordinary negligence with
serious consequences. Gross negligence as defined and discussed
connotes recklessness, an entire failure to give consideration to the
consequences of his actions, a total disregard of duty.
Bickle
v Joint Ministers of Law and Order

1980 (2) SA 764.






The
appellant’s action certainly does not fit in(to) this definition.
I agree with the appellant’s uncontroverted submission
that the
resultant failure of the dividends (was) not due to his absence and
that the failure was due to happen whether he was present
or not and
was only to be attended (to) by his supervisor. The only
consequence of his absence was the late attending to the problem
due
to late reporting.





In
the premise I find that the charge of gross negligence was
ill-conceived and cannot be allowed to stand.”






Mr Biti,
for the appellant, has, correctly in my view, conceded that the
Tribunal’s finding on the charge of gross negligence is
unassailable.






He, however,
persists with the appellant’s first ground of appeal, which is to
the effect that the Tribunal erred and misdirected
itself in ignoring
the fact that the respondent had been charged with breaches of two
other clauses of the Code of Conduct, that
is, 4.4.7 and 4.4.17.
Clause 4.4.7 of the Code of Conduct outlaws conduct that amounts to
“
habitual
and substantial neglect of one’s duties
”,
while clause 4.4.17 penalises conduct that amounts to “
any
act, conduct, or omission inconsistent with the fulfilment of the
expressed or implied conditions of the contract of employment
”.







Mr Gijima,
for the respondent, argues
in
limine

that this ground of appeal does not raise a point of law. This
argument is disputed by the appellant.







In support
of their conflicting positions on this point, the parties have, in
their heads of argument, correctly stated the law
concerning the
determination of whether or not an appeal from the Tribunal to this
Court is on a question of law or fact. They
have cited numerous
case authorities to support their averments. (See, among others,
Muzuva
v United Bottlers (Pvt) Ltd

1994 (1) ZLR 217 (S);
National
Foods Ltd v Magadza

S-105—95;
Gauntlet
Security Services (Pvt) Ltd v Mbijana

S-82-99; and
Mpumela
v Berger Paints (Pvt) Ltd

1999 (2) ZLR 146 (S)).






In Muzuva
v United Bottlers (Pvt) Ltd supra

the learned CHIEF JUSTICE cited, with approval, a passage in
Media
Workers’ Assocation of South Africa Ltd

1992 (4) SA 791 (A), in which it was pointed out that the term
“question of law” is used in three distinct though related
senses.
In relation to the third sense, the learned judge in the
latter case stated:





“… and
third, any question which is within the province of a judge instead
of the jury is called a question of law.”






I find this
dictum
to be relevant to the circumstances
in
casu
.
Had the jury system existed in our jurisdiction, I have no doubt
that the consideration (or non-consideration) by the Tribunal,
in an
appeal case, of all charges brought against the respondent in a lower
forum would properly have fallen “within the province”
of a
judge. It follows, therefore, that the ground of appeal to the
effect that the Tribunal ignored one of the charges brought
against
the appellant raises a question of law.






To that
extent, I consider the appeal to be properly before this Court.
There is thus no merit in the point raised
in
limine

by the respondent.





I
will now consider the merits of this ground of appeal.






It is not in
dispute that the appellant’s chief executive officer upheld the
respondent’s appeal in relation to the charge under
clause 4.4.7.
If regard is had to the concession made by Mr 
Biti
in relation to the charge under clause 4.4.16, the only issue
for determination is the Tribunal’s finding, or lack thereof,
concerning the charge under clause 4.4.17.





It
is evident that the Tribunal neither specifically addressed, nor made
any finding relating to, the charge under clause 4.4.17
of the
appellant’s Code of Conduct.






Mr Gijima,
for the respondent, contends in support of this stance of the
Tribunal that at the disciplinary hearing the charge relating to
conduct
inconsistent with the express or implied conditions of his
employment (clause 4.4.17) was never put to the respondent. He
contends further that even if such charge had been put to the
respondent, it could not have been sustained since there was a
specific
provision in the Code of Conduct (clause 4.4.6) which
dealt specifically with absenteeism. Mr 
Gijima
contends further that since a charge under clause 4.4.6 is less
serious than those under clauses 4.4.7, 4.4.16 and 4.4.17,
the
inference was inescapable that the appellant was determined to lay
against the respondent a charge serious enough to warrant
his
dismissal.






There is
much in the evidence before this Court to support Mr 
Gijima’s
contention regarding the charges put before the respondent by the
disciplinary committee. The notice summoning the respondent to
attend a disciplinary hearing informed him he was to answer:





“… charges
of gross negligence and/or habitual negligence in contravention of
sections 4.4.7, 4.4.16 and 4.4.17 of the Society’s registered
Code”.





A
closer analysis of this notice suggests –






(i) that the respondent was being
charged with gross negligence, alternatively, or in addition to that
charge, with habitual negligence;
and







(ii) that the charges translated
to a violation of clauses 4.4.7, 4.4.16 and 4.4.17 of the appellant’s
Code of Conduct.






As already
indicated, the main charge fell under clause 4.4.16 while the
alternative, or additional, charge fell under clause 4.4.7
of
the Code of Conduct. The charge that fell under clause 4.4.17,
i.e. conduct inconsistent with the fulfilment of one’s
conditions
of employment, was not specifically articulated in the notice. This
renders inaccurate the assertion that the two charges
cited, singly,
in the alternative or together, constituted a violation of
clause 4.4.17 of the Code of Conduct.






Effectively,
therefore, the respondent was summoned to answer only two charges
relating to clauses 4.4.7 and 4.4.16. This situation,
in my view,
was not altered by what was in fact the erroneous citation of
clause 4.4.17. It was reinforced at the disciplinary
hearing
where, although the charge laid against the respondent was recorded
in the minutes thereof as simply “gross negligence”,
the
respondent was also specifically charged with “habitual and
substantial neglect” of his duties. This latter fact emerged
from
the respondent’s notice of appeal to the chief executive officer.






The chief
executive officer of the appellant, who heard the respondent’s
appeal against the finding of the disciplinary hearing,
dismissed the
charge relating to clause 4.4.7. He stated in his
determination that he had perused the record of the proceedings
and
that he concurred with the disciplinary committee “
to
the extent that it found you guilty in terms of sections 4.4.16
and 4.4.17 of the Employment Code of Conduct
”.






The appellant’s chief executive
officer did not participate in the disciplinary hearing. I have
already determined that the charge
under clause 4.4.17 of the
Code of Conduct was not put to the respondent. This is because
there is no indication anywhere
in the papers before the Court that
this was done. The chief executive officer clearly read more into
the record of the disciplinary
hearing proceedings than was actually
recorded. Accordingly, since that charge was not laid against the
respondent, it follows
the chief executive officer could not have
properly concurred with, nor upheld, a finding that was never made by
the disciplinary
hearing.






There
is, therefore, merit in the respondent’s contention that the only
matter for determination before the Tribunal was the finding
of the
appellant’s chief executive officer that the respondent was guilty
of gross negligence, a dismissable offence. There was
no basis upon
which the Tribunal could have traversed a charge that was never
properly laid against the respondent.







The ground of appeal that the
court
a quo
erred and misdirected itself in not dealing with the aspects of the
respondent’s liability based on this clause is therefore without
foundation.






The
appeal must accordingly fail.







In the premises, the appeal is
dismissed with costs.















SANDURA  JA:
I agree.














ZIYAMBI
JA: I agree.















Honey & Blanckenberg,
appellant's legal practitioners


Wintertons,
respondent's legal practitioners