Court name
Supreme Court of Zimbabwe
Case number
SC 24 of 2006
Civil Appeal 336 of 2004

N E I Zimbabwe v Makuzva (36/04) (SC 24 of 2006, Civil Appeal 336 of 2004) [2006] ZWSC 24 (17 May 2006);

Law report citations
Media neutral citation
[2006] ZWSC 24
















REPORTABLE
ZLR (33)



Judgment No. SC 24/06


Civil
Appeal No. 336/04









N E I ZIMBABWE v
LYNETTE MAKUZVA








SUPREME
COURT OF ZIMBABWE


CHADYASUKIKU
CJ, CHEDA JA & MALABA JA


HARARE
MAY, 18 2006








T
Biti
, for the
applicant





G
Valla
, for the
respondent









CHDEA JA: The respondent in
this matter was an employee of the applicant. The exact nature of
her employment is not disclosed
in the papers, save to say that she
was appointed to represent the other employees when some negotiations
were going on concerning
the allocation of shares to employees when
the appellant was taking over the company from Rolls Royce, the
previous owners of the
appellant company.





A
confidential document was forwarded to the appellant’s financial
director by the operations director of the appellant.






The contents of the
confidential document were relevant to the issue of shares but the
envelope containing the documents was addressed
to Doris Asher, the
Secretary to the Finance Director, and clearly marked
“private
and confidential”.






Once
it was discovered that these documents had gone missing from Doris
Asher’s Office the employees of the appellant were questioned
and
none admitted any knowledge of the whereabouts of the documents.






The
respondent was also asked about the documents and denied any
knowledge.





Some
plain clothes investigators were called in and a massive search was
conducted in offices and motor vehicles.





The
documents were later found in the vehicle of the respondent, hidden
under the carpet inside the boot. This background was not
contested
by the respondent. Such conduct was not taken lightly by the
appellant. The fact that the documents concerned shares
that the
workers were entitled to did not justify what she did. Once she was
aware of the information she could have dealt with
the matter in some
other way. The appellant then applied for authority from the Labour
Relations Officer to dismiss the respondent
from employment.





The
Labour Relations Officer failed to adjudicate on the matter properly.
Her findings clearly contradicted the factual situation
revealed on
the papers. She concluded as follows:






“OFFICER’S FINDINGS







1. That applicant failed
completely to prove that respondent had
                                 unlawfully
removed documents from Doris Asher’s office. Doris
                                 Asher
was not even called to give evidence to this effect.





2.
   That by first offering a severance package to
respondent, applicant                                  shared
(sic) that he had also a case to answer, why would one
                                 offer
a package to a thief? It is clear from the submissions that’s
                                 the
applicant who stole from all employees their right to shares.





3.    
That on the issue of extortion the applicant can refer the case to
                                 the police.”






The
above sounds like a finding against a charge of theft. It is again
not clear on the papers if the charge against the respondent
was that
of theft which was referred to the police, or that of misconduct.
The appellant had dismissed her for her conduct which
was
inconsistent with one’s nature of employment.






The
Labour Officer made no clear finding regarding misconduct.





It
was then ordered that she be reinstated without loss of pay and
benefits from the date of her suspension or be paid damages agreed
between the parties.





The
appellant appealed to the Labour Relations Tribunal (“the
Tribunal”) against that decision. The Tribunal concluded, and
rightly so, that the letter to the Ministry dated 31 August 2000,
that is the application for dismissal of the respondent, clearly
explained the conduct for which she was dismissed, and that it was
not theft.





It
also found that the conduct complained of was not denied by the
respondent.





The
Tribunal found that the conduct of respondent, in hiding the
documents in her car and failing to own up, was clearly dishonest
conduct and was totally contrary to what could be expected from an
honest employee, and if left unpunished, could lead to chaos in
the
work place. I find no fault with this conclusion.





On
appeal to this Court, the above finding was not challenged by the
respondent. What was challenged is the decision that the Tribunal
made concerning the respondent’s dismissal.





The
Tribunal proceeded to state the following in conclusion:





“Having
found that the Respondent’s conduct was  punishable, one
has                          to
look at the punishment that was imposed. I am in agreement with
                         Mr Hwacha’s
submissions that regard should have been had (had?) to
                         s
12B(4) of the Act. The circumstances of this case required
                         Management
to closely examine the facts that led to the act of
                         misconduct.
The conduct of Management itself was not up to scratch.
                         Given
the need for good corporate governance, the conduct of
                         Management,
which conduct was not denied, was not commendable.
                         Management
did not act in good faith and that was a betrayal of the
                         worker’s
interests. As stated elsewhere in this judgment the
                         appellant’s
conduct promoted agitation in the workforce. That,
                         however,
is not to suggest that workers should have taken the law into
                         their
own hands.








I am convinced that in providing
for s 12B(4) in the Act, the
                        Legislature
meant to     ensure that employers did not
rush to                        
dismissals merely because the acts of misconduct are dismissable.”









After
making observations about the copies of the same document(s) from the
Reserve Bank, the President of the Tribunal went on
to say:





“The
act of misconduct, although deserving punishment, does not in
                         my
view call for the dismissal of the respondent.”






The
Tribunal then went on to confirm the refusal of authority to dismiss
the respondent and substituted its own penalty for he misconduct.

This was after it had observed that the referral back to the senior
labour officer to consider an appropriate punishment would delay
the
course of justice.





This
is the conclusion of the matter which the appellant has now appealed
against.





In
short, the issue is whether the Tribunal had the discretion to set
aside the decision of the disciplinary authority and substitute
its
own where an employee is clearly guilty of misconduct.





Section
12B(4) of the Act
[Cap
17 of 2002]
(“the
Act”) reads as follows:





“(4)
In any proceedings before a designated agent or the Labour
Court                         where
the fairness of the dismissal of an employee is in issue, the
                        adjudicating
authority shall, in addition to considering the nature or
                        gravity
of any misconduct on the part of the dismissed employee,
                        consider
whether any mitigation of the misconduct avails to an extent
                        that
would justified action other than dismissal, including the length of
                        the
employee’s service, the employee’s previous disciplinary record,
                        the
nature of the employment and any special personal circumstances
                        of
the employee.”








Two
questions immediately arise for consideration.





Firstly,
was this law at the time this matter arose?





Secondly,
if it was, were there any circumstances which it can be said the
Tribunal took into consideration in the respondent’s
favour?





By
then, the appellant had a vested right to have the respondent
dismissed according to the law as it was then, after seeking
authority.
Such right accrued before Act 17 of 2002 came into
operation.





It
cannot be said that such right did not exist just because the labour
officer made the wrong decision on the matter.





Section
12B(4) of Act 17/2002 cannot be applied to this matter
retrospectively. See
Curtis
v Johnnesburg

Muncipality
– 1906 TS at 311;
Bell
v Voorsitter Van Die

Rasklassifikasieraad En
Andere
1968 (2) SA 678
(A);
Agere Nyambuya
1985 (2) ZLR 336;
Nhamo
and Anor v Attorney

General and Ors
1993 (2) ZLR 422 and more recently
Net-One
Cellular (Pvt) Ltd v Net-One Employees and Anor
SC
40/05.





Even
if the law had changed following the amendment by s 12B(4), were
there any mitigatory factors or special circumstances that
the
Tribunal was asked to consider; No information regarding the
respondent’s nature of employment, record of employment or previous
conduct was placed before the Tribunal at all for its consideration
except the fact that she dishonestly concealed the documents
in her
car and lied, firstly, that she had not seen them, and secondly, said
she handed over the documents, yet they were found as
a result of a
search. The correct position is that the law at the time had no
provision for the Tribunal to exercise any discretion
in the form it
did.





Accordingly,
I find that the Tribunal misdirected itself in concluding that is
could substitute its own penalty in terms of s 12B(4)
of Act 17/2002.





In
the result I order as follows:





1.
The finding of guilty of conduct inconsistent with one’s
nature of                       employment
is to stand.





2.
      The penalty imposed by the Tribunal is
set aside.





3.
  The appellant is granted authority to dismiss the
respondent in terms of                        the conditions
on which she was suspended.














CHIDYAUSIKU
CJ: I agree.














MALABA
JA: I agree.














Honey
& Blackenburg
,
appellant legal practitioners


Kantor
& Immerman
,
respondent's legal practitioners