Court name
Supreme Court of Zimbabwe
Case number
SC 115 of 2004
Civil Appeal 100 of 2002

Kandoma v Shades of Black Cosmetics (Pvt) Ltd. (00/02) (SC 115 of 2004, Civil Appeal 100 of 2002) [2005] ZWSC 115 (12 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 115

















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.