Court name
Supreme Court of Zimbabwe
Case number
SC 1 of 2007
Civil Appeal 265 of 2004

Tanganda Tea Company Ltd. v Mvududu (65/04) (SC 1 of 2007, Civil Appeal 265 of 2004) [2007] ZWSC 1 (21 March 2007);

Law report citations
Media neutral citation
[2007] ZWSC 1




DISTRIBUTABLE
(1
)

















Judgment
No. SC 1/07


Civil
Appeal No. 265/04








TANGANDA
TEA COMPANY LIMITED v ANDREW MVUDUDU








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, GWAUNZA JA & GARWE JA


HARARE,
JANUARY 16 & MARCH 22, 2007








N
Tiyago
,
for the appellant





T.
Nyakunika
,
for the respondent







GARWE JA: This is an appeal
against the decision of the Labour Court reinstating the respondent
to his original position with the
appellant company.





The
facts of this case are largely common cause. The respondent was
employed by the appellant company as a garage foreman. On
24
September 2000 the respondent assaulted a Mr. Thumbu in a cocktail
bar on the appellant’s premises. Mr. Thumbu was a Mozambican
national who had come to the cocktail bar for entertainment.
Following this incident the respondent was charged with two offences.
He was acquitted on the first but found guilty on the second. He
was consequently dismissed. Dissatisfied, the respondent appealed
to the Labour Court against his dismissal. The Labour Court found
that since the fighting or violence directed at Mr. Thumbu was
not
work related, no offence had been committed. Accordingly the Labour
Court ordered his reinstatement without loss of salary
or benefits.
It is against this order that the appellant company has now appealed
to this Court.






The sole issue to be determined
in this appeal is whether the fighting or violence envisaged in the
Group Employment Code of Conduct
of the Tanganda Tea Company Limited
(“the Code”) should be work related or involve the appellant’s
employees or other people
who might have business with the appellant
for it to be an offence in terms of the Code.






The
Code has provided a schedule of offences and corresponding
disciplinary action guide. Table A – which relates to the highest
level of severity (Group 1) – has provided in s 10 as follows:





“10. Fighting/violence
at a workplace including any area designated as company property
whether it is residential or entertainment
premises. Fighting with
or attempting to inflict bodily harm upon another employee or any
other person within company premises.”









Section
17 of the Employment Code of Conduct has placed acts of misconduct
into six (6) categories. The relevant category for
purposes of the
present matter is s 17(3) which relates to indiscipline or disorderly
behaviour. That section provides as follows:






“DISORDERLY
BEHAVIOUR AND RELATED BREACHES






a. …






b. Threatening violence:
threatening to do physical injury to any company employee, any person
involved in company business, on work
related issues or where such
behaviour is likely to interfere with production or affecting
industrial relations within the Company.






c. Assault or attempted assault:
occasioning or attempting to occasion bodily harm to any company
employee or any person involved
in company business on work related
issues or where such behaviour is likely to interfere with production
or affecting industrial
relations within the company.






d. Fighting:
physical combat with any company employee or any person involved in
company business who retaliates on company property."












Both parties to this appeal are
agreed that for a proper determination of the issue before this Court
both ss 17(3) of the Code
and 10 of the Schedule of Offences and
Corresponding Disciplinary Action Guide Table A: Highest Level of
Severity – (Group I) should
be read together. Indeed this was the
approach taken by the Labour Court.






The issue whether the fighting or
violence that is envisaged in the Code should be work related or
involve the appellant’s employees
or other people who might have
business with the appellant is one of interpretation.






On a careful reading of s 17 of
the Code, it is clear that that section was intended to cater for
situations where the violence
or fighting was targeted at company
employees or other persons involved in company business. In other
words if an employee threatens
to do physical injury to another
employee or any person involved in company business or if he assaults
or attempts to assault such
person or if he is involved in physical
combat with such person then he would be guilty of a breach relating
to indiscipline or disorderly
conduct.





Section
10 of Table A of the Schedule of Offences on the other hand
prescribes a dismissal for fighting or violence at a work place,
including any area designated as company property whether residential
or entertainment. It also prescribes a dismissal for fighting
with
or attempting to inflict bodily harm upon another employee or any
other person within company premises.





It
is apparent that the fighting envisaged by s 10 of the Code also
includes the acts provided for in s 17(3) of the Code. In
other
words s 10 of Table A expands “fighting” as defined in s 17 of
the Code to include any fighting with any person as long
as this is
on company premises. I would accordingly accept the submission by
the appellant that the two sections read together
prohibit fighting
with anyone on company premises. The word “anyone” is wide
enough to include all persons who come to the
appellant’s premises.





The
finding of the Labour Court that the fighting or violence envisaged
in the Code should be work related or in respect of employees
or
persons who have business with the company was based on a restricted
interpretation of the Code and ignores the clear provisions
of s 10
of Table A. The fact that the offence may be the responsibility of
other authorities such as the police is really neither
here nor
there. It is, I think, common knowledge that criminal offences
committed at the workplace will in many instances also
be subject to
internal disciplinary proceedings.





In
the result the appeal must succeed.





The
order of the Labour Court is accordingly set aside and in its place
the following is substituted:






“The appeal be and is hereby
dismissed with costs.”














SANDURA  JA: I
agree.














GWAUNZA
JA: I agree.
















Scanlen &
Holderness
,
appellant’s legal practitioners


Toto
& Makoni Attorneys
,
respondent's legal practitioners