Court name
Supreme Court of Zimbabwe
Case number
SC 28 of 2005
Civil Appeal 353 of 2001

Chinoda v Zimsun (Pvt) Ltd. t/a Makasa Sun Hotel (53/01) (SC 28 of 2005, Civil Appeal 353 of 2001) [2005] ZWSC 28 (20 July 2005);

Law report citations
Media neutral citation
[2005] ZWSC 28
















DISTRIBUTABLE
(22)


Judgment
No. SC 28/05


Civil
Appeal No. 353/01








PINIEL
CHINODA v





ZIMSUN
(PRIVATE) LIMITED T/A MAKASA SUN HOTEL








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


HARARE,
MAY 9 & JULY 21, 2005








The
appellant in person





S
V Hwacha
, for the respondent





CHEDA
JA: The appellant was employed at Zimsun (Private) Limited (“the
respondent”) trading as Makasa Sun Hotel (“the hotel”).

According to the appellant, he was not employed by the hotel, but by
the company that has slot machines in the respondent’s hotel.
The
respondent has a Code of Conduct (“the Code”) that deals with
dismissible offences. It reads in relevant part as follows:






“DISMISSAL OFFENCES






(a) Clock another employee’s
time card intentionally;





(b)
– (n) … (not relevant); and





(o) Disobedience
to a lawful order or instruction given by an employer or supervisor
with serious consequences.”






On
4 August 1994 the respondent issued the following instruction in
writing to its employees:






“HOTEL STAFF GAMING – SLOT
MACHINES





At
the present time we have a policy which bans all Zimbabwe Sun staff
gambling at any of our Casino units.





We
have decided that due to the competition which now exists between
ourselves and other companies, Hotel staff will be allowed to
gamble
in our Slot Machine Rooms under the following conditions:






1. Staff MUST be off-duty
and out of uniform;






2. Only NON-PROGRESSIVE
machines may be played;





3. Staff
are NOT allowed to take part in any Slot promotions.






Please
note that the above will be on (a) trial period of six months with
effect from 15 August 1994, and that the existing
ban on staff
gambling on the tables is still in force.






Should
you have any queries regarding the above, please do not hesitate to
contact me.”






The
document was signed by someone on behalf of Tony Ball, the Group
Slot Operations Manager. It was distributed to Casino
General
Managers, Slot Managers, Assistant Casino Managers, Hotel General
Managers and all Hotel Personnel Managers.






The
appellant does not deny the existence of this document. In fact he
says in his papers that he was aware of the ban on gambling
by the
respondent’s workers.





On
27 September 1996 a security guard observed the appellant gambling on
the slot machines while appellant was on duty. The appellant
was
initially charged with and found guilty of gambling on slot machines.
The National Employment Council for the Catering Industry
of
Zimbabwe (“the NEC”) Appeals Committee realised that this was not
a correct charge and referred the matter back for retrial
on the
correct charge. The appellant was again found guilty. He appealed
to the NEC Appeals Committee. It found him guilty
of misconduct in
that he had disobeyed a lawful order issued by the employer.





The
sequence of the event is as follows –






9 OCTOBER 1996



A local hearing was held at the
appellant’s workplace and a report by the security guard was read
out. The minutes of this meeting
are incomplete and do not state
what decision was made.







23 JANUARY 1997







The Retrenchment Committee of the
NEC deliberated on the appellant’s case and decided that since he
had not appealed to the Zimsun
National Committee the matter should
be referred back to Zimsun.







17 MAY 1997







The Retrenchment Committee of the
NEC resolved that the charges were not clear and ordered a re-trial
of the matter.







8 & 9 JULY 1997







The hearing was held in the
presence of the appellant.







On 8 July 1997 the
appellant refused to answer the allegations and kept saying he did
not understand anything despite several explanations of the
charge.







On 9 July 1997 the
appellant said he did not need the security guard to be called as a
witness. He said the memo with instructions was not directed
at him
but at the hotel staff although he knew about it. He suggested that
he was not employed by the hotel and was not a member
of its staff.
He said: “If this is the case I will decline and remain numb
(dumb?) and you can do whatever you want”. He
said he did not see
the reason for the continued sitting if there was no identified
objective. He also said: “I have not defended
myself enough as I
do not know the objective. I haven’t been given a proper
allegation.”







11 JULY 1997







When the hearing continued on
11 July 1997 the appellant said he went through his defence and
said playing slot machines was
an offence that was not in the Code
but in the Hotel Casino Policy Code only. He said at one stage that
the hearing should adjourn
as he was very cross and not in the mood
to continue.







At the end of that day’s
hearing it was decided that the appellant should be dismissed. A
letter advising him of that decision
was written on 12 July
1997.






The appellant appealed against
this decision. The Appeals Committee of the NEC decided to dismiss
the appeal.






The appellant then noted an
appeal to the Labour Relations Tribunal (“the Tribunal”). In
his notice of appeal to the Tribunal,
the appellant said that the
decision of the Appeals Committee of the NEC was grossly unreasonable
and irrational; the charge was
not specified in the Code; the Appeals
Committee of the NEC erred in accepting the statement of the security
guard; and there was
no lawful order. The appellant also alleged
that the Appeals Committee of the NEC had denied him the opportunity
to defend himself.





The
Tribunal found that there was no merit in the appeal and that it was
baseless. It dismissed the appeal.






The appellant has now appealed to
this Court. In his notice of appeal he alleges that the decision of
the Tribunal is so grossly
unreasonable and irrational that no
reasonable tribunal could have reached such a judgment. He says
this is because the Tribunal
upheld a decision of the Appeals
Committee of the NEC, which decision was unprocedurally arrived at.
He says that Appeals Committee
of the NEC did not invite the
appellant for a hearing.






This
ground of appeal is clearly false, as the record shows that he was
present and took part in the proceedings that took about
three days.





The
second ground of appeal has no basis. The changing of the number of
participants, by reducing the size of the Committee, did
not
prejudice the appellant in any way.





The
third ground of appeal is baseless and does not make sense either.
This was not a criminal trial in which the Tribunal had
to prove the
appellant’s guilt beyond a reasonable doubt, as he alleges.





The
appellant’s grounds of the appeal to the Tribunal do not refer to
the arguments that he raised in this Court. There was
nothing wrong
with the constitution of the Workers Council.





The
appellant tried to appeal on the basis of proceedings that were
nullified.





The
appellant does not dispute that there was a permanent ban on staff
gambling. He was aware of this fact. The evidence of the
security
guard was clear and convincing. On his part, the appellant did not
present any clear evidence other than denials and refusing
to explain
what happened. All he did was to keep saying that he did not
understand the charge, but showed, by way of the questions
he asked
at the hearing, that he clearly understood the charge against him.
The record reveals his full participation in the proceedings
and how
be behaved.





The
memo issued by management was addressed to Hotel staff. Appellant
cannot be correct in suggesting that it was not applicable
to him
when he was also employed at the hotel. He was Zimbabwe Sun staff.






In the circumstances, the
Tribunal was correct in dismissing the appellant’s grounds of
appeal as baseless.






Most
of the findings made by the Tribunal are factual and not appealable
to this Court.






The appeal is dismissed with
costs.














CHIDYAUSIKU CJ: I agree.














ZIYAMBI JA: I agree.

















Dube, Manikai & Hwacha,
respondent's legal practitioners