Court name
Supreme Court of Zimbabwe
Case number
SC 127 of 2004
Civil Appeal 209 of 2003

Total Zimbabwe (Pvt) Ltd. v Moyana (09/03) (SC 127 of 2004, Civil Appeal 209 of 2003) [2005] ZWSC 127 (26 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 127













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