Court name
Supreme Court of Zimbabwe
Case number
SC 130 of 2004
Civil Appeal 54 of 2004

Mvere v Tanganda Tea Company Ltd. (54/04) (SC 130 of 2004, Civil Appeal 54 of 2004) [2004] ZWSC 130 (08 November 2004);

Law report citations
Media neutral citation
[2004] ZWSC 130













REPORTABLE
(106)


Judgment
No. SC. 130/04


Civil
Appeal No. 54/04








TRACY
MVERE v TANGANDA TEA COMPANY LIMITED








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, MALABA JA & GWAUNZA JA


HARARE,
NOVEMBER 9, 2004








The
appellant in default





N
Moyo
, for the
respondent






MALABA JA: This is an appeal
from a judgment of the Labour Court dated 25 February 2004
dismissing an appeal by the appellant
from the decision of the
respondent (“Tanganda”) to dismiss her from employment on grounds
of misconduct. At the time the appeal
was heard there was no
appearance for the appellant (“Tracy”). She had, however, filed
detailed heads of argument. We proceeded
to hear submissions on
behalf of Tanganda, at the end of which we dismissed the appeal with
costs and indicated that reasons would
follow in due course. These
are they.





It
is common cause that Tracy was employed by Tanganda as a taxation
manager/accountant. She was dismissed from employment on
17 October
2000 after having been convicted of three offences under the Tanganda
Tea Company Employment Code of Conduct (“the
Code”). The
offences she was convicted of were –






1. Misconduct inconsistent with
the fulfilment of the express or implied conditions of one’s
contract of employment;







2. Wilful disobedience to a
lawful order given by the employer;







3. Wilful and unlawful
destruction of the employer’s property.







Tracy unsuccessfully appealed
against her dismissal to the appeals committee and thereafter to the
Labour Court. In stating the
grounds of appeal to this Court Tracy
said:






“1. I feel the Honourable Court
erred in granting authority to dismiss when evidence brought by the
appellant was not considered.





2. The
wrongs done by the respondent to the appellant over ten years were
not considered.





3. Seeking
that Tanganda makes good that is for damages suffered.”








Paragraph 3 is not a ground
of appeal at all. It constitutes a claim for damages that Tracy has
not instituted against Tanganda.
No more will be said about it. I
agree with Ms 
Moyo
that paragraphs 1 and 2 raise the same complaint, that evidence
of mitigating factors was not considered.







There is no appeal against the
determination that Tracy committed the acts of misconduct that caused
her dismissal. That there
was a breach of contract by her is
therefore common cause. The question for determination is whether
the decision of the Labour
Tribunal that her dismissal was justified
was so outrageous in its defiance of logic that no reasonable
tribunal could have made
it. I shall consider whether there was
sufficient justification of Tracy’s dismissal by reference to
misconduct inconsistent
with the fulfilment of the express or implied
conditions of her contract of employment.






Tracy
joined Tanganda in 1990 as a taxation manager. She is an accountant
by profession. On 5 September 1997 her job description
was
amended to include the control of the processing and reconciliation
of receipts and payments via the cash book. It was her
duty to
ensure that daily financial returns and monthly bank reconciliation
statements were prepared timeously. It was an implied
condition of
the contract of employment that she would preserve official documents
in her custody in their complete and regular state.
The financial
division was headed by the group financial manager, who at the
relevant time was Mrs B Sharples. Reporting
directly to
Mrs Sharples were the chief accountant, Mr H Matanga,
and the senior accountant, Mr O Ndondodzai.





In
January 2000 Mrs Sharples instructed Mr Matanga to review
bank reconciliation statements prepared by Tracy’s department.

This followed observations by external auditors in their report to
management for the financial year ending October 1999. Tracy
did
not accept the idea of Mr Matanga having to review what she
considered to be her work. She was uncooperative, prompting
Mrs
Sharples to write her a letter on 28 February 2000, ordering
that she should not obstruct the execution of her lawful instruction.
The letter read, in relevant part:






“Mr Matanga was
instructed by me to monitor the procedures being followed in your
section. He reports to me and such reviews
are part of his job
description. I will not tolerate you obstructing this process.
Mr Ndondodzai has been instructed to
check all of your journal
vouchers and I am hereby instructing you to cooperate with both of
these individuals in their endeavours
to provide me with what I need.
That is my prerogative.”






In
June 2000 Mr Matanga checked monthly bank reconciliation
statements, starting from September 1999. He affixed his signature
on the documents as proof of the fact that the instruction from the
group financial manageress had been duly carried out. When
Tracy
came across the documents bearing Mr Matanga’s signature, she
tore off the portion with the signature. She tore five
bank
reconciliation statements for the months of November and December
1999 and for February, March and April 2000. Without disclosing
that she had torn the documents, Tracy confronted Mr Matanga and
asked him why he had checked her work. He told her that the review
was in terms of the instruction from Mrs Sharples.





On
27 September 2000 Mr Nyanhete, the internal auditor, was
carrying out his duties when he came across the torn bank
reconciliation statements. When he asked Tracy, she admitted having
seen the documents but professed ignorance of who could have
tampered
with them in that manner.





On
28 September 2000 Mr Nyanhate reported to Mrs Sharples
that he had discovered bank reconciliation statements with
Mr Matanga’s signature torn off. At about 2.00 pm
Mrs Sharples, Mr Matanga and Mr Nyanhete went to
Tracy’s
office. She was asked by Mrs Sharples about the torn
documents. Tracy admitted that she had seen the torn documents but
denied any knowledge of who tore off Mr Matanga’s signature.
Asked why she did not, as head of the department responsible
for the
security of the bank reconciliation statements, order an
investigation into the matter, Tracy stood up and started walking
out
of the office as Mrs Sharples ordered her not to leave whilst
she was still talking to her. When she got to the corridor,
and
within the hearing of other employees, Tracy shouted at Mrs Sharples
words to this effect:






“What do you want from me?
You are always following me and checking my work. I am going to the
toilet. Leave me alone.”






Probably
realising the folly of her outburst of bad temper and having calmed
down, Tracy approached Mrs Sharples in her office
and handed her
a letter of apology. It is then that Tracy admitted to Mrs Sharples
that she had torn off Mr Matanga’s
signature from the bank
reconciliation statements.





Tracy
was suspended on full pay and benefits. On 29 September 2000
she was charged with the offences she was later found
guilty of
having committed. When she appeared before the disciplinary
committee to answer the charges of misconduct levelled against
her,
Tracy did not hide the fact that she deeply resented the idea of
Mr Matanga checking the bank reconciliation statements
compiled
by her department. She said:






“I don’t like Matanga’s
signature on my work because it is my labour and brains that go into
it.”








She
further retorted:






“Matanga must put his signature
on my work. For what reason? So that his ego can be boosted and
(he) feels important.”






She
was nonetheless found guilty of the misconduct and dismissed from
employment. In justifying the decision to dismiss her, the
disciplinary committee said:






“Defacing of company documents
in an accounting function is viewed as a very serious offence by the
company and by its internal and
external auditors. Source documents
should never be tampered with as things may be removed that are
important, such as notes of
issues that need to be resolved the
following month, or an individual may be trying to cover up something
that they do not want to
come to light either fraudulently or
innocently. … These defaced documents would inevitably have
attracted attention from the
external auditors that are imminently
due for the annual audit. As a public company reporting to
shareholders and the importance
of transparent and effective
management of, particularly cash, resources, this would cause
considerable embarrassment to management
and possibly cast aspersions
on the security of cash reporting and controls in all aspects of the
accounting operation.”






In
her appeal to the appeals committee, Tracy asked for forgiveness and
alleged for the first time that she had grievances against
Tanganda
which she wanted taken into consideration in deciding whether her
dismissal was justified. She said she had been kept
in Grade 10
for six years without promotion. Other employees had the
opportunity of purchasing company vehicles that had been
issued to
them. It, however, became clear that those benefits were for
employees in grades above hers.





In
the appeal to the Labour Court, Tracy alleged that she was being
victimised because she was perceived as a revolutionary. She
reiterated her charge that she had been kept in Grade 10 for
many years in order to deny her benefits enjoyed by employees in
higher grades. The learned President of the Labour Court, in
upholding the decision to dismiss Tracy from employment, said:






“The appellant has grievances
against the company. Unfortunately she fell into the trap of being
highly charged. While therefore
she may have valid grievances, the
manner in which she has put them across only strengthens the
company’s position. There is
always a proper way of doing things.
In this case the appellant would have been properly within her
rights to follow the appropriate
grievance procedure if she felt
aggrieved by the manner the respondent company was treating her.”







The question whether the
dismissal of an employee is justified is a question of fact dependent
upon the extent of the misconduct
committed and determined by
reference to all the circumstances of the case. In
Standard
Chartered Bank Zimbabwe Ltd v Chapuka

S-125-04 it was stated at p 7 of the cyclostyled judgment that:






“Conduct which is found to be
inconsistent or incompatible with the fulfilment of the express or
implied conditions of a contract
of employment goes to the root of
the relationship between an employer and an employee, giving the
former a
prima facie
right to dismiss the latter. In
Clouston
v Corry
[1906] AC 122
LORD JAMES OF HEREFORD remarked by way of a
dictum
at p 129:







‘Now the sufficiency of
justification depends 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 misconduct in a servant
which will not justify the termination
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
.’”
(the underlining is mine for emphasis)







See also Laws
v London Chronicle Ltd

[1959] 2 All ER 285;
National
Foods Ltd v Masukusa

1994 (1) ZLR 66 (S); and
Tobacco
Sales Floors Ltd v Chimwala

1987 (2) ZLR 210 (S).







In
Chapuka’s
case supra
dismissal of a bank manager was found to have been sufficiently
justifiable because he had unlawfully and deliberately erased names
of the intended payees from the bank cheques in breach of the implied
condition of his contract of employment to preserve official
documents in his custody in their complete and regular form.






In
this case it was also an implied condition of Tracy’s contract of
employment as head of the department to preserve company
documents in
her custody in their complete and regular state. Once Mr Matanga’s
signature had been lawfully affixed to the
bank reconciliation
statements it became part of the documents. She clearly breached
the duty to preserve the integrity of the
documents when she tore
Mr Matanga’s signature off. Tanganda took the view that the
breach was of a serious nature going
to the root of the contract of
employment.





Tracy’s
argument was that her conduct had no significant effect on the
documents, as she had not intended to commit fraud against
Tanganda.
She said her intention was to draw attention to the views she held
that the instruction that the bank reconciliation
statements be
reviewed had not been communicated to her in a proper manner. That
may have been the case. It is clear from an
objective point of view
that her conduct undermined the relationship with the employer. It
undermined the company’s chain of
authority. She wanted to act as
if she was self-employed.






In Mapuka’s
case
supra
the court
a quo
had expressed the opinion that because the intention behind the
misconduct was not to defraud the employer his dismissal was not
justified. At pp 8-9 of the cyclostyled judgment it was stated
that:






“The relevance of the statement
by the Tribunal that the intention of Chapuka in committing the
misconduct was not to defraud Standard
Chartered and that no
prejudice was suffered by Standard Chartered as a result of his acts
is open to doubt, because the alleged
intention of a fraudulent
employee cannot be taken as a standard with which to determine
whether an employer acted reasonably in
taking the view that the
misconduct was so serious in nature as to justify dismissal. The
unlawful intention would have been one
of the circumstances which put
the employee in the position in which he considered the pursuit of
personal interest more important
than the honest discharge of his
duties to the employer.”






Tracy
was an accountant and a senior member of staff employed by Tanganda.
She must have known that Mr Matanga’s signature
had been
placed on the documents in the performance of his duties. The work
would not have been done for the personal benefit of
Mr Matanga.
Nor would the bank reconciliation statements have been prepared for
her personal benefit. The documents belonged
to the company and it
was not for her to decide as to whose signature should be on them.
By her own conduct she had demonstrated
unwillingness to remain bound
by the implied conditions of employment.






In
Chimwala’s
case
supra
McNALLY  JA said that evidence of misconduct inconsistent
with the fulfilment of the express or implied conditions of a
contract of employment entitled an employer to dismiss an employee
unless the latter showed that the 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”.







Tracy’s conduct was clearly
serious. It was deliberate in that it was committed in the
quietness of the moment. She suggested
that the court
a quo
should have found that her conduct was excusable because of the
grievances she said she had against Tanganda. The learned President
of the Labour Court considered the fact that the Code had rules
setting out procedures for redressing grievances. Tracy was bound
to follow those procedures to have her grievances redressed.






There
was no obligation arising from the need to have her grievances
addressed compelling the commission of the unlawful act of
tearing
company documents in her custody. The fact that she had grievances
against Tanganda did not make the misconduct any less
dismissible.
The conduct remained one of a sufficiently serious and grave nature,
destructive of the trust and confidence fundamental
to the
continuance of the relationship under the contract of employment.





There
was no merit in the appeal and it was therefore dismissed with costs.

















SANDURA
JA: I agree.

















GWAUNZA  JA:
I agree.


















Coghlan, Welsh & Guest,
respondent's legal practitioners