Court name
Supreme Court of Zimbabwe
Case number
SC 19 of 2005
Civil Appeal 407 of 2002

Taruvinga v CIMAS Medical Laboratories (07/02) (SC 19 of 2005, Civil Appeal 407 of 2002) [2005] ZWSC 19 (26 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 19



10


SC
19/05



















DISTRIBUTABLE (19)



Judgment No. SC 19/05


Civil
Appeal No. 407/02













NOREST TARUVINGA v
CIMAS MEDICAL LABORATORIES












SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & GWAUNZA JA


HARARE,
FEBRUARY 28 & JUNE 27, 2005








A
Muchadehama
, for the
appellant





D
S Mehta
, for the
respondent











GWAUNZA JA: The appellant worked
for the respondent as a laboratory technician. On the night of 10
December 2000, he was on night
duty at the respondent’s Harare
laboratory. He does not deny that around 1.30 a.m. he, in the
company of a colleague, drove one
of the respondent’s vehicles into
the city centre. He returned to his station more than four hours
later, around 6 a.m. It
is also not disputed that during the
appellant’s absence certain urgent work needing his attention was
brought in from the Avenues
Clinic.






After
efforts to locate the appellant failed, another laboratory technician
had to be called in from home around 5.00 am, to carry
out the
relevant tests.







It is the respondent’s
assertion that the delay in the carrying out of the tests in question
inconvenienced and upset not just the
parents of the child whose
blood samples had to be tested, but authorities at Avenues Clinic as
well. The latter, a major client
of the appellant, had filed a
complaint and threatened to report the matter to the Health
Professions Council. Such a report could
have resulted in the
cancellation of the respondent’s practising licence.






The
respondent preferred four charges against the appellant, in terms of
its Code of Conduct, under Group IV offences. These were
Misuse of
the Employer’s Property; Dishonesty and Other Related Offences,
Breach of Employment Contract and Sabotage. In terms
of the
respondent’s Code of Conduct, the penalty for such offences is
dismissal.







In
the subsequent disciplinary proceedings, the appellant was found
guilty as charged, and dismissed from his employment. He appealed
unsuccessfully to the Local Joint Committee, the Negotiating
Committee of the NECC and the Labour Court. The Labour Court
limited
itself to the charge relating to misuse of the employer’s
property and, on the basis of the appellant’s admission that he had
driven the vehicle in question to Chicken Inn Restaurant without
authority, dismissed his appeal. The learned President of the
Labour Court found that as a result of the misuse of the respondent’s
property, the latter had suffered loss to the extent of the
fuel
consumed and wear and tear of the vehicle during the unauthorised
journey of 72 km. In adopting this stance, the Labour Court
erred,
as will be indicated below.







In his grounds of appeal, the
appellant avers that the Labour Tribunal erred “in law” in
concluding that the charge that was preferred
against him was correct
and that he was properly dismissed. Expanding on this ground of
appeal, the appellant contends in his
heads of argument, that the
respondent had picked on charges that it knew merited dismissal, when
it could have preferred charges
attracting a lesser penalty. The
appellant charges, in addition, that the Labour Tribunal failed to
take cognisance of the fact
that the actual offence and the
circumstances surrounding the occurrence did not warrant dismissal.






I
am persuaded there is some merit in these submissions.






A
perusal of the respondent’s code of conduct shows that some
offences are cited in general but identical terms, under different
“groups” of offences. There is, for instance, the general
offence entitled “Misuse of Employer’s Property” being cited
under Group II, III and IV offences. The Code then lists the
specific conduct that would constitute the general offence as it
appears
under each particular “group”. Evidently it is this
conduct, rather than the general offence, that determines the penalty
to
be imposed on the offender. Under Group II offences the offence
attracts in the first instance, the penalty of a written warning,
followed by final written warning and finally dismissal. The
specific misconduct is described as:







“The
unauthorised use of the employer’s property or other facilities for
a purpose other that for which it was intended.”






Conduct constituting misuse of the
employer’s property under Group III offences is cited as:







“negligent loss or damage to
any property of the employer or any other employee or customer’s
property.”









The
penalty is firstly final written warning and then dismissal.





Under
Group IV offences, misuse of the employer’s property is described
as:





“Wilful
or intentional loss/damage of employer’s/customer’s property,
regardless of the values of such property.”










The
penalty is dismissal.









One
of the charges brought against the appellant was misuse of employer’s
property as defined under Group IV offences.







My
view is that the conduct of which the appellant was accused, that is,
taking and driving the respondent’s vehicle for 72 km
without
authority, does not constitute “wilful or intentional loss of the
employer’s property” as envisaged in s 2 of the Group
IV
Offences. The use of the vehicle might have resulted in loss to the
employer in the form of the fuel consumed and the wear and
tear to
the vehicle, but I am not persuaded that is the type of loss
envisaged under that provision. One does not “lose” the
fuel of
another person by driving that person’s vehicle without his
authority. Nor can “wear and tear” be defined as “damage”
to the vehicle in question. The court
a
quo
in my view
misinterpreted this provision of the Code and accordingly erred in
law.






I
find therefore, that the appellant was wrongly charged with this
offence as described under Group IV offences. Much though the
respondent may have wished to impose a very harsh punishment on the
appellant, it is clear that in terms of the Code the offence
is not
considered to be as serious as the respondent viewed it.





The
appellant was charged with three other offences, also arising from
the same conduct. Although the Labour Court did not deem
it
necessary to consider these other offences, it is the interests of
justice, and finality in litigation, that they be considered
by this
Court on the basis of the evidence before it.




The second offence with which the
appellant was charged, that of “dishonesty and other related
offences” is cited under both Group
III and Group IV offences.
The respondent charged the appellant under Group IV offences where
the conduct constituting this offence
is explained as:-






“Falsifying
or changing any document with fraudulent intent or attempting to do
so including clocking of another employee’s card.





Unlawful
taking of property with the intention of permanently depriving the
company of the use of such property.





Knowingly
aiding or assisting the unlawful taking of property stated above.





Giving
or receiving or attempting to give or receive any bribe or inducing
or attempting to induce any person to perform any corrupt
act.”









It is again, evident that the
conduct of the appellant did not constitute this offence. He did
not falsify any document, take the
vehicle in question with the
intention of permanently depriving the owner of the use thereof, nor
did he do any of the other things
listed. There is, however,
evidence that the respondent was concerned more about what it
perceived as dishonest conduct on the
part of the appellant than the
specific conduct listed under that offence. That this was the case
is made clear from a reading
of part of a letter written by P Jambo,
the respondent’s Head of Department (Human Resources) to the
respondent’s Senior Designated
Agent. It reads as follows:






“The
element of dishonesty comes in, in that during the period he deserted
the laboratory, he was being paid for working overtime.
This to us
is dishonest conduct because we believe in paying ‘a fair day’s
wage for a fair day’s work’.”










Clearly the attitude implicit in
these words derives from a misreading of the Code of Conduct. As
already stressed, it is the specific,
rather than the general
offence, which is the correct point of emphasis.






The
appellant was therefore wrongly charged with the offence of
dishonesty as described under Group IV offences of the Code.


The
other charge levelled against the appellant was “Breach of
Employment Contract”. This general offence appears under Group
II, Group III and Group IV offences of the respondent’s Code of
Conduct. The conduct constituting this offence under Group II
offences is –







“Non compliance with
established procedures or standing instructions.”










The appellant was not charged
under this category of offences, despite the respondent’s reference
to him having breached standing
instructions by not completing the
log book on his return from the city.






The
Group III offences category lists conduct that is clearly not
applicable in
casu.






Under
Group IV offences, the conduct is defined as –







“Violating safety rules or
measures with serious consequences.”










The
respondent did not explain what specific safety rules or measures the
appellant, through his conduct, violated nor did it indicate
what
serious consequences resulted from such conduct.





I
am therefore satisfied the appellant was wrongly charged with this
offence as it appears under the Group IV offences.


The
last offence the appellant was charged with was sabotage. This
offence is listed under the Group IV offences only and is described
as follows:






“Any
wil
ful
act by an employee to interfere with the normal operations of the
employer’s business by damaging any plant, machinery, equipment,
raw materials or products or by interrupting any supplies of power,
fuel, materials or services necessary to the operations.”










The
respondent’s understanding of this charge is explained in the
written determination of the respondent’s Senior Designated
Officer, P Ngando, as follows:







“The
element of ‘Sabotage’ comes into play in that by deserting the
laboratory for approximately four hours when he was being paid
double
the pay rate, he willfully disrupted the normal operations of the
employer’s business by failing to provide services necessary
to the
operations. The consequences for (
sic)
his act of misconduct are too ghastly to contemplate.







His
conduct was totally unprofessional and impossible as it showed no
regard to the patient who was highly stressed, no regard to
referring
doctor who had to wait for endless hours to get the test results and
no regard for the Laboratory which has a reputation
to protect and is
currently being subjected to still competition from other
Laboratories.”










It
is argued for the appellant that the charges of dishonesty and
sabotage were untenable and unsubstantiated on the facts. It
is
argued further that the “ordinary interpretation of the definition
of ‘sabotage’ excludes acts or omissions ascribed to
the
appellant.”





While
I am persuaded, as already shown, by the argument relating to the
charge of dishonesty, I am not so persuaded on that concerning
sabotage.


A
reading of the various charges as formulated in the respondent’s
Code of Conduct shows that the Code does not pay homage to
dictionary
or ordinary meanings of certain words and phrases. This is
demonstrated by the fact, already alluded to, that



different offences are listed
under common headings that appear in the various categories of the
offences section of the Code. The
conduct that is specified under
these headings suggests more than any other circumstance, that the
common headings are used for convenience
only and are not to be given
ordinary or dictionary meanings.






It
is in this light that the heading “sabotage” in the Code of
Conduct is to be viewed. The offence for purposes of the Code
of
Conduct is not committed when the dictionary meaning of “sabotage”
is satisfied. Rather, it is committed when the conduct
complained
of constitutes the specific offence defined under that heading.
That being the case, the argument that the conduct must
meet the
dictionary or ordinary meaning of “sabotage” for it to constitute
an offence under s 8 of the Group IV offences, is
without merit.
All that the respondent had to do was prove that by his conduct, the
appellant breached s 8 of the Group IV offences.
I am satisfied,
when regard is had to the respondent’s explanation of the offence,
referred to above, that the applicant did
breach s 8 of the Group IV
offences. By absenting himself from his workplace during the hours
in question, he withheld a service
necessary to the smooth operation
of the laboratory. Much time was devoted to establishing his
whereabouts, while work that had
been brought in for his attention
could not be performed with the urgency that it required. As a
result another person had to be
recalled from home in the early hours
of the morning to do the work which should have been done several
hours earlier.



I
have no doubt this interruption to the operations of the respondent’s
laboratory, is the type of conduct that, among others,
is envisaged
under s 8. He was therefore properly charged and penalised.







The
appellant makes reference to an unfair splitting of charges. I am
not satisfied there is merit in this submission. There
were facets
to the appellant’s conduct that constituted different offences.
His unauthorised use of the employer’s vehicle
for a purpose other
than that for which it was intended, constituted an offence under s 2
of Group II offences of the Code of Conduct.
By committing this
offence, the appellant simply provided himself with the means to
commit the other offence referred to as sabotage.
However, the two
offences are separate and distinct and could have been committed
independently of each other. While this Court
might have upheld his
appeal on the offence of “misuse of the employer’s property”,
and that of dishonesty and other related
offences, for the reasons
given, it cannot do the same with the offence of sabotage.






On
that ground, the appeal must fail.





It
is in the result ordered as follows:-






“The appeal be and is hereby
dismissed with costs.”


















CHIDYAUSIKU CJ: I agree.
















ZIYAMBI
JA: I agree.







Mbidzo,
Muchadehama & Makoni
,
appellant’s legal practitioners


Muzenda
& Maganga
,
respondent’s legal practitioners