Court name
Supreme Court of Zimbabwe
Case number
SC 23 of 2005
Civil Appeal 80 of 2003

Tedco Management Services v Chikwanda (80/03) (SC 23 of 2005, Civil Appeal 80 of 2003) [2005] ZWSC 23 (22 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 23
















DISTRIBUTABLE
(17)


Judgment
No. SC 23/05


Civil
Appeal No. 80/03








TEDCO
MANAGEMENT SERVICES v GEORGE CHIKWANDA








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
FEBRUARY 10 & JUNE 23, 2005








E
Matinenga
, for the
appellant





The
respondent in person












ZIYAMBI JA: This is an appeal against a decision of the Labour
Court. The appeal turns on the interpretation of s 3(2) of the
Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations SI 371 of 1985 which provides as follows:





“Upon
application being made in terms of subsection (1) the
labour
elations fficer shall investigate the matter and may, according to
the circumstances of the case –






(a) serve a determination or order on the employee concerned
terminating his contract of employment if the grounds for his
suspension
are proved to the satisfaction of the abour elations
fficer;





or







(b) serve a determination or order on the employer concernedto remove
the suspension of the employee concerned and to reinstate such
employee if the grounds his suspension are not proved to the
satisfaction of the abour elations .”



The respondent who was employed by the appellant as a Credit
Operations Manager, was, on 7 June 2001, suspended from his
employment
pending an application for the termination of his
services. The allegations against him were set out in a letter to
him of even
date. It read in relevant part:





“Further
to my discussions with you today, you are suspended from duty without
pay and benefits with immediate effect pending full
investigations
into some very serious anomalies that I have discovered pertaining to
your duties and conduct.








As already highlighted to you, these
anomalies are that:-









(a) You failed to check and verify
the commission claims brought to you for authorisation and payment by
Mr B Sharara and Mr P Chakanyuka
resulting in the Organisation to be
deprived of a substantial amount through fraudulent claims. It was
your responsibility to ensure
that all the claims brought to you for
authorisation by the two Freelance Tracers had been thoroughly
checked and verified against
the amounts collected.





My
initial investigations have revealed that you failed in this respect.
This is a very serious omission and amounts to gross negligence
on
your part.






(b) I have also learnt and subsequently established that you are a
Co-director together with Mr P Chakanyuka at a private company
called
ERPLEX (PRIVATE) LIMITED which is duly registered with
the Government Deeds Registry Certificate No. 5208/99 dated 6 June
1999. This is a gross violation
of your employment contract as you
did not declare your interests in the above-named company. You have
further violated your contract
of employment in that one of the main
objects of your company is Debt Collection and Tracing, which
directly conflicts with your
responsibilities at Tedco.






(c) In view of (b) above, I am
inclined to believe that you also connived with Mr Chakanyuka to
defraud the Company.








You
may be called for a formal Disciplinary Enquiry once a full
investigation has been carried out. However, this may not be
necessary
in which case, we will apply to the Ministry of Labour for
your dismissal and you will be informed.”



Clause 3 of the conditions of service governing the
respondents’ employment with the appellant provided that:





“He shall be a full time employee
of the Company and shall not, without the written consent of his
Group Managing Director, be engaged
or interested in, directly or
indirectly, any other business or profession, nor engage in any work
other than his Company duties,
whether for gain or not.”






The application made to the Labour Relations Officer
for the termination of his employment was unsuccessful. The Labour
Relations
Officer ordered the reinstatement of the respondent or, in
the alternative, an agreed “exit package”. This determination
was
confirmed by the Senior Labour Relations Officer.





The Labour Court, before whom the
matter was heard on appeal found:





“The
employer alleged that contrary to this condition, the respondent was
a co-director together with P Chakanyuka of Erplex (Private)
Limited,
a company whose main objective was Debt Collection and Tracing which
objectives conflicted with his own responsibilities
at his place of
employment since the Credit Finance Division largely debt collected
and traced defaulters on behalf of the company.








That there was no written consent has
not been disputed. The respondent however says he had requested for
authority and had been
given the authority by the then General
Manager Mrs Chalmers who had since left the organisation. This
verbal consent by the General
Manager however falls short of the
clear requirement of a written consent by the Group Managing
Director.








It is therefore clear that the
respondent breached his conditions of service.








It is in my opinion just and
equitable under the


circumstances that reinstatement
should not be ordered. It is clear that the trust that should exist
in any employer employee relationship
has been lost. But having made
a finding that respondent did breach clause 3 of his conditions of
service I order as follows:





‘That
the appellant be allowed to terminate the respondent’s contract of
employment, subject to their paying the respondent an exit
package as
at the date of the suspension.’”









The appellant now appeals against the
judgment of the Labour Court. There is also a cross appeal by the
respondent against the finding
of that court that he had breached the
terms of his employment and the order of the Labour Court allowing
termination of his contract
of employment. He seeks an order
setting aside the order of the Labour Court and granting him
reinstatement with no loss of salary
and benefits alternatively,
damages in lieu of reinstatement including back pay and benefits.






The main ground of appeal raised by the appellant,
was that having correctly found that the respondent had breached his
contract
of employment by failing to adhere to the specific
requirements of the terms and conditions of his employment, the
Labour Court erred
in law in failing to grant the application to
dismiss the respondent on the allegations which were contained in the
letter of suspension.






In this regard it was submitted by Mr Matinenga, that once a
dismissble misconduct had been established, the judicial officer had
no discretion in the matter and that the court
a quo had erred
in altering the punishment of dismissal imposed by the Regulations.
This submission is in my view correct. The wording
of the
regulation is clear. Where the grounds of suspension are proved to
his satisfaction, the judicial officer must terminate
the employee’s
contract of employment. If, on the other hand, the grounds of
suspension are not proved, he must order reinstatement.
No other
option is open to him. See Masiyiwa v TM Supermarkets 1990
(1) ZLR 166 (SC) at 170G – 171A; Wholesale Centre (Private)
Limited v Mehlo & Ors
1992 (1) ZLR 376 (H).






I am therefore of the view that the appeal should
succeed on this ground and that it is not, in the circumstances,
necessary to consider
the other grounds raised by the appellant.






Accordingly the appeal is allowed with costs.







The cross appeal is dismissed with costs.







The order of the Labour Court is set aside and
substituted by the following:






“The
appellant is granted authority to terminate the respondent’s
employment from 7 June 2001, being the date of his suspension.”










SANDURA  JA: I
agree.








GWAUNZA
JA: I agree.







Atherstone
& Cook
,
appellant's legal practitioners