Court name
Supreme Court of Zimbabwe
Case number
SC 72 of 2005
Civil Appeal 49 of 2004

Barclays Bank of Zimbabwe Ltd. v Ndiraya (49/04) (SC 72 of 2005, Civil Appeal 49 of 2004) [2005] ZWSC 72 (30 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 72
Coram
Chidyausiku CJ
Malaba JA
Gwaunza JA













DISTRIBUTABLE
(67)


Judgment
No. SC. 72/05


Civil
Appeal No. 49/04








BARCLAYS
BANK OF ZIMBABWE LIMITED





v
SHEPHERD NDIRAYA








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, MALABA JA & GWAUNZA JA


HARARE,
JUNE 30, 2005 & JANUARY 25, 2006








G
V Mamvura
, for the appellant





M
A Gijima
, for the respondent





MALABA
JA: The respondent was employed by the appellant as a senior
security and investigations manager. On 28 April 2003
he was
charged under the Barclays Bank Managerial Employees Code of Conduct
(“the Code”) with the commission of “any act, conduct”
inconsistent with the fulfilment of the express or implied conditions
of his contract of employment under Category 4 section 5.4.4.
The allegation against the respondent was that he had sold a Mazda
B1600 motor vehicle to a relative by private treaty contrary
to
instructions from the appellant’s legal advisor and the head of
operational risk management to dispose of the motor vehicle
by public
auction.






A
disciplinary hearing was held, at the end of which the hearing
officer found the respondent guilty of wilful disobedience to a
lawful order given by the employer under Category 3 section
5.3.12 of the Code. The respondent had not been charged with the
offence of wilful disobedience to a lawful order given by the
employer. There was no evidence that the question whether he had
committed the offence charged had been determined. He was, however,
dismissed from employment on 9 May 2003.





On
15 May 2003 the respondent, through his legal representative,
wrote to the appellant arguing that a gross irregularity had
been
committed in the disciplinary hearing proceedings, in that he had
been found guilty of an offence with which he had not been
charged.
He demanded a reversal of his dismissal and unconditional
reinstatement pending a “decision as to how to proceed”.






The appellant, through its human
resources advisor, agreed with the respondent that there had been a
failure by the hearing officer
to determine the question raised by
the disciplinary hearing proceedings and accordingly notified him by
letter dated 20 May
2003 that he was reinstated with full pay
and other benefits with effect from the date of dismissal. He was
also advised that he
was being suspended from duty with full pay on
the same charge of contravening s 5.4.4 of the Code. By letter
dated 21 May
2003 the respondent was invited to attend a
disciplinary hearing on 30 May 2003.






On
29 May 2003 the respondent made an urgent application to the
Labour Court seeking an order interdicting the appellant from
conducting any further disciplinary hearing proceedings to determine
the question whether he had breached s 5.4.4 of the Code
by
selling the Mazda B1600 motor vehicle by private treaty contrary to
instructions from the legal advisor and the head of operational
risk
management to dispose of it by public auction. The ground of the
application was that he had been acquitted of the charge
by the first
hearing officer.





The
respondent decided not to attend the disciplinary hearing, which was
nonetheless conducted in his absence on 30 May 2003.
He was
found guilty as charged and dismissed from employment.





The
hearing of the application made by the respondent to the Labour Court
on 29 May 2003 was commenced on 16 January 2004.
The
original relief sought was amended to include an order that the
decision to dismiss the respondent from employment on 30 May
2003 was unlawful. At the conclusion of the hearing of the
application the learned senior president made an order in the
following
terms:






“(1) That the application
succeeds and the purported dismissal of the applicant be and is
hereby set aside;






(2) That
the respondent be and is hereby barred from conducting further
disciplinary proceedings against the applicant in terms of
section 5.4.4 of its Code of Conduct pertaining to misconduct
deemed to be inconsistent with the fulfilment of the express or
implied conditions of the applicant’s contract of employment with
the respondent;





(3) That
the applicant remains employed by the respondent and is entitled to
his back pay and benefits with interest at the prescribed
rate as
from the date of the purported dismissal (i.e. 30 May 2003)
until payment in full;





(4) That
in the event of the respondent refusing to allow the applicant to
continue in its employ then the respondent should pay the
applicant
agreed damages in lieu of continued employment. If the parties fail
to agree on damages the parties are free to approach
this court for
quantification; and





(5) That
the respondent shall pay the costs of this application.”







Although the appellant appealed
against paras 2 and 4 of the order of the court a quo, we are
satisfied that the learned senior president had no jurisdiction to
make the order that was sought by the respondent. The
Labour Court
is a creature of statute. Its powers are derived from the
provisions of the Labour Relations Act [Chapter 28:01]
(“the Act”). Specific reliefs that may be sought from the
Labour Court by way of an application are set out in ss 93(7)(a)
and 93 (7)(b) of the Act. None of them was sought in this case.
Section 89(2)(d) provides that “any other relief” must
be
exercised in terms of the appropriate provisions of the Act.





There
is no provision in the Act empowering the Labour Court to set aside
on an application a decision to dismiss an employee taken
under an
employment Code of Conduct. The decision to dismiss an employee can
only be set aside by the Labour Court on appeal under
s 89(2)(b)
of the Act. There was no appeal noted against the decision made on
30 May 2003 to dismiss the respondent from
employment.





As
the Labour Court can only hear and determine applications for relief
specified under the appropriate provisions of the Act and
there was
no power to grant the relief sought by the respondent, the learned
senior president could not interdict the appellant from
conducting
disciplinary hearing proceedings under its employment Code of
Conduct.





There
was nothing procedurally unlawful about the disciplinary hearing
conducted by the appellant on 30 May 2003. The parties
agreed
that there had been a failure by the first hearing officer to
exercise jurisdiction. In determining a question different
from
that submitted for determination, the first hearing officer had not
acquitted the respondent of the charge preferred against
him. When
the parties agreed to treat the proceedings as a nullity, reinstate
the respondent in his employment and start the disciplinary
proceedings afresh, the appellant was entitled to charge the
respondent with the offence of contravening s 5.4.4 of the Code
of Conduct based on the same allegation as had been made against him
at the first disciplinary hearing. The respondent had proper
notice
of the disciplinary hearing proceedings held on 30 May 2003, but
decided not to attend and make representations on his
defence. He
was found guilty of a dismissible offence and no appeal was noted
against the decision. He stands dismissed from
employment.





I
would accordingly allow the appeal with costs, set aside the order of
the Labour Court and substitute in its place the following
order –






“The application is dismissed
with costs”.









CHIDYAUSIKU
CJ: I agree.








GWAUNZA
JA: I agree.








Scanlen
& Holderness
, appellant's legal practitioners


Gill,
Godlonton & Gerrans
, respondent's legal practitioners