Court name
Supreme Court of Zimbabwe
Case number
SC 47 of 2005
Civil Appeal 102 of 2004

Marvo Stationery Manufacturing (Pvt) Ltd. v Jokwani and Others (02/04) (SC 47 of 2005, Civil Appeal 102 of 2004) [2005] ZWSC 47 (23 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 47




REPORTABLE (42)














Judgment No
SC 47/05


Civil Appeal No 102/04

















MARVO
STATIONERY MANUFACTURING (PRIVATE) LIMITED


v LOVEMORE JOKWANI
AND 5 OTHERS











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, CHEDA
JA & ZIYAMBI JA


BULAWAYO JULY 23 &
OCTOBER 24, 2005








H. Moyo, for the
appellant





A Muchadehama,
for the respondent












CHIDYAUSIKU CJ: The respondents in this case are former
employees of the appellant company. They were charged with
misconduct.
The allegation was that the respondents were amongst a
group of employees that were found gambling at the appellant’s
company
premises during working hours.





A hearing was held in
terms of the Code of Conduct on 3 December 1996. The respondents
denied the charge but were found guilty
and dismissed. After a
series of sittings, further hearings and applications the
respondents’ appeal was finally heard by the
Labour Court on 11
November 2003. The Labour Court held that the respondents had been
unfairly dismissed and ordered that they
be reinstated with an
alternative for payment of damages. It is against this decision
that the appellant company now appeals to
this Court.





The learned President
of the Labour Court allowed the appeal on the following basis:-






“This act of misconduct is not specified in the Respondent’s Code
of Conduct namely the Collective Bargaining Agreement for the
Printing Packaging and Newspaper Industry, Statutory Instrument 322
of 1993.





According to the
dismissal letters served on the Appellants dated 4th
December 1996 the concession is made that neither the offence of
gambling nor the penalty of dismissal is expressly provided for
in
the Code. Respondent however dismissed the appellants for conduct
inconsistent with the fulfillment of the express conditions
of their
contract of employment.





A perusal of the said
Code of Conduct shows that the act of misconduct for which the
Appellants were eventually dismissed is also
not specified as an
offence at all. This explains the difficulty encountered by
Respondent in trying to impose a penalty right
from the initial
hearings. At first, the initial hearing Committee, came up with a
penalty of deducting eight hours of Appellant’s
tickets. Later
the penalty was changed to termination thereafter on appeal, the
penalty was against changed to suspension for six
weeks and then
application for reemployment upon good behaviour by Appellants.





A submission was made
by Respondent’s Legal Practitioner that Respondent was empowered in
terms of Section 3:1:2 of the Code to
impose a heavier penalty where
in its opinion the offence is of such a serious nature.





That may be so, but
sight should not be lost of the fact that, that particular section
relates to specified offences in the Code and
not where the Code is
silent about a particular offence. That Section therefore cannot
assist Respondent.”









The learned President of the Labour Court went on to conclude at p 3
of her judgment:-






“So there being no definition of the actions by Appellants in
Respondent’s Code of Conduct, it was not proper for Respondent
to
charge them as such. There was no contravention of the Code.”









The appellant appeals to this Court on the following grounds:-






“1. It is respectfully submitted that the learned President erred
in law in holding that since the act of gambling was not specified
as
an offence in the Code of Conduct, the respondents did not therefore
commit an offence and could not be dismissed.





2. It is further
respectfully submitted on behalf of the appellant that the learned
President erred in law in holding that the list
of dismissable (sic)
offences provided for in the Code of Conduct was exhaustive.





3. The preamble of
Section 3.8 of the Code of Conduct stated that discharge should be
used when the offence committed is so serious
a nature that it
amounts to a breach of or repudiation of contractual obligations.
Examples of such offences are therefore listed.
This list of
offences is only given as examples but does not exclude any other
offence of a serious nature as described in Section
3.8





4. Gambling is a
criminal offence according to the laws of Zimbabwe. The Respondents
did not deny that they were engaged in such
conduct at the work
premises during working hours (letters of apology written by them
were produced and are part of the record).





5. Such conduct is
clearly inconsistent with the nature of their duties and is an
offence of a serious nature warranting dismissal.”
(See the Notice
of Appeal)









It would appear from the grounds of appeal that the issue that
falls for determination by this Court is the correct interpretation
of s 3.8.1 of the Collective Bargaining Agreement: Printing,
Packaging and Newspaper Industry (Code of Conduct) Statutory
Instrument
322 of 1993 (hereinafter referred to as the Code). The
relevant section of the Code provides as follows:-






“3.8.1 Discharge is the final sanction and should be used –





(a) …





(b) …






(c) when the offence committed is of so serious a nature that it
amounts to a breach of, or repudiation of, his contractual
obligations
such as –






(i) willful and unlawful breach of Company safety regulations or
security regulations or any act of omission which intentionally
endangers the health or safety of others;





(ii) absence from work
for 5 or more consecutive working days without prior approval and an
unacceptable reason for such absence;





(iii) willful and
unlawful damage to plant or Company property through negligence or
any act or omission which is likely to cause
damage to Company
property;”












Ms Moyo, for the appellant, submitted that notwithstanding
the fact that the Code does not specifically provide for gambling as
an act of
misconduct it should be interpreted to include gambling.
He argued that s 3.8.1(c) of the Code merely gives examples of
possible
misconduct and that the list is not exhaustive. The fact
that gambling is not included in the list of examples given does not
mean
that it is specifically excluded.






I agree with Ms Moyo’s submission that the examples set out
in paragraphs (i) (ii) and (iii) of s 3.8.1(c) are not exhaustive
examples. They are only
examples and the fact that gambling is not
specifically mentioned does not mean that gambling at work does not
constitute an act
of misconduct in terms of the Code, s 8.3.1(c) in
particular.






I have no doubt in my mind that gambling at work during working
hours is conduct which is in breach of the employee’s contractual
obligations. An employee is contracted to work and not to gamble
during working hours. It is also clear from s 3.8.1(c) that
it is
not every breach of contractual obligation by an employee that
constitutes a contravention of the section. The breach has
to be of
a serious nature in order to constitute a contravention of s 3.8.1(c)
of the Code.






For instance, an employee who absents himself from work for one day
or two days or three days or four days is clearly in breach
of his
contractual obligation to the employer. Yet absence from work for a
period of less than five days does not constitute a
contravention of
s 3.8.1(c) of the Code. It is only absenteeism for a period of five
days or more that constitutes a contravention
of s 3.8.1(c) of the
Code.







As I have already said gambling during working hours is conduct
that is inconsistent with an employee’s contractual obligation.

An employee is contracted to work and not to gamble. However, for
such gambling to be covered by s 3.8.1(c) of the Code it has
to be of
a serious nature. Gambling on the odd occasion, as seems to be the
case here, is not of a serious nature and is not covered
by s
3.8.1(c) of the Code. If it had been established that the gambling
had been persistent in terms of frequency and for considerable
periods of time during working hours I would have had no hesitation
in concluding that it is of a serious nature and amounts to
misconduct
in terms of s 3.8.1(c) of the Code. Absenteeism from
work for one day is not a contravention of s 3.8.1(c)(ii) of the Code
while
absenteeism for five days is a contravention. By parity of
reasoning gambling at work and during working hours on the odd
occasion
is not a contravention of s 3.8.1(c) while serious and
persistent gambling during working hours would amount to a
contravention of
the section.







In the present case the respondents dispute that the gambling took
place during working hours. Some of them suggest that the
gambling
took place during lunch hour. The evidence does not establish that
the gambling was serious. If anything the evidence
establishes that
it was a one-off occurrence.







It may well be that the respondents, by gambling, committed a
criminal offence.







The appellant argued that commission of a criminal offence on the
employer’s premises constitutes misconduct in terms of s 3.8.1
of
the Code. I do not accept that there is substance in this
submission. There is nothing in the language of s 3.8.1 of the Code
to justify the conclusion that every conduct of an employee that is
criminal constitutes misconduct in terms of s 3.8.1 of the Code
as
contended for by the appellant. It is only criminal conduct which
is of such a serious nature as to amount to a breach of the
employee’s contractual obligation that constitutes a contravention
of s 3.8.1 of the Code.







In the result I arrive at the same conclusion as the learned
President of the Labour Court, that the allegations against the
respondents
do not constitute a contravention of s 3.8.1 of the Code,
but for different reasons. I arrive at my conclusion on the basis
that
although gambling during working hours is, prima facie,
conduct that is in breach of an employee’s contractual obligation,
such a breach has to be of a serious nature before it can amount
to a
contravention of s 3.8.1 of the Code. The gambling revealed on the
papers is not of such a serious nature as would amount
to a
contravention of the Code.







For these reasons the appeal is dismissed with costs.


























CHEDA JA: I agree.








ZIYAMBI JA: I
agree.
















Joel Pincus Konson & Wolhuter, appellant's legal
practitioners


Mbidzo Muchadehama &
Makoni
, respondent's legal practitioners