Court name
Supreme Court of Zimbabwe
Case number
SC 55 of 2007
Civil Appeal 55 of 2007

Toyota Zimbabwe v Posi (55/07 ) (SC 55 of 2007, Civil Appeal 55 of 2007) [2008] ZWSC 55 (03 March 2008);

Law report citations
Media neutral citation
[2008] ZWSC 55







REPORTABLE ZLR
(50)








Judgment
No. SC 55/07



Civil Appeal No. 55/07








TOYOTA
ZIMBABWE v RICHARD POSI








SUPREME
COURT OF ZIMBABWE


MALABA
JA, CHEDA JA & GWAUNZA JA


HARARE,
OCTOBER 2, 2007 & MARCH 4, 2008









H Zhou, for the appellant



The respondent in person









MALABA JA:







This is an appeal from a judgment of the Labour Court dated 17
November 2006 setting aside the decision of the appellant to dismiss

the respondent from employment following a conviction under a Code of
Conduct of gross negligence in the performance of work.
The Labour
Court ordered that the case be remitted to the appellant for a
penalty other than dismissal to be imposed.







The respondent was employed by the appellant as an assistant credit
controller. His duties included the supervision of work
done by
cashiers and accounting assistants. Cashiers had to submit to him
the cash which they would have received from the appellant’s

customers after counting it together with the banking sheets in which
they would have entered the amounts. They were also supposed
to
prepare and submit to the respondent bank deposit slips relating to
the amount of money to be banked. It was the respondent’s
duty
to count the money and check the banking sheets and deposit slips
prepared by his subordinates to satisfy himself that there
was no
money missing. He had to sign the banking sheet and deposit slip to
certify that the money was as recorded therein before
it was taken to
the bank. On 18 December 2002 one of the cashiers received a total
amount of $6 552 582.03. The banking sheets
showed that this money
had been received. The respondent signed the banking sheet to
certify that, indeed, that amount of money
had been received and
receipted. On 31 December the accounts department discovered upon
examination of the deposit slips for 19
December when the money was
supposed to have been banked that it had been under-banked by an
amount of $218 652.13.







On 7 January 2003, the respondent appeared before the Disciplinary
Committee charged with the misconduct of negligence in the

performance of work as defined in the Code of Conduct (“the
Code”). He admitted that when the money and the documents
were
brought to him he did not count it, nor did he go through the banking
sheets and deposit slips to satisfy himself that the
amount of money
recorded therein agreed with the cash. He had simply signed the
banking sheets and deposit slip without paying
attention to probable
consequences of failure to strictly comply with the procedures for
proper performance of his work. The respondent
further admitted that
as a result of his negligence, the appellant had suffered a serious
financial loss. Having found the respondent
guilty of the misconduct
charged, the Disciplinary Committee was of the view that the facts
showed that the degree of negligence
committed was high, deserving
the penalty of dismissal as a punishment. The respondent was
accordingly dismissed from employment.







In deciding to impose the penalty of dismissal for what it
considered to be gross negligence on the part of the respondent who

had committed a first breach, the Disciplinary Committee took into
consideration the provisions of s 2 of the Code. I set out
here only
those provisions of the sections that are relevant in the
determination of the appeal. Section 2 provides:


“CLASSIFICATION
OF OFFENCES






Depending on the severity of the offence committed, the following are
provided:







2.1. MINOR BREACHES






















1ST BREACH



2ND BREACH



3RD BREACH



4TH
BREACH






Recorded Verbal Warning



First written warning valid for
3 months



Second written warning valid for
6 months



Final written warning valid for
12 months









2.2. MODERATE BREACHES



















1ST
BREACH






2ND BREACH



3RD BREACH



First written warning valid for
6 months



Final written warning valid for
12 months



Dismissal









2.3. SERIOUS BREACHES
















1ST
BREACH






2ND BREACH



Final written warning valid for
12 months and/or demotion and suspension without pay for up to 30
days



Dismissal







The offences that fell in a particular class of offences were listed
below the relevant box. Negligence in the performance of
work is
listed as falling in the class of serious breaches. On the basis of
the classification of the various acts of misconduct
and the
corresponding penalties, the respondent on appeal to the Managing
Director against the decision of the Disciplinary Committee
to
dismiss him from employment contended that the Disciplinary Committee
was bound to impose the penalty of a final written warning
valid for
12 months and/or demotion and/or suspension without pay for up to 30
days as his was a first breach. The argument was
that whether or not
dismissal was, in the circumstances, an appropriate punishment for
gross negligence in the performance of work,
the Disciplinary
Committee had no discretion in the matter of what penalty to impose.



The appeal was heard by the Financial Manager as the Managing
Director had recused himself. The Financial Manager dismissed the

argument by the respondent and upheld the decision of the
Disciplinary Committee. He said:



“It is my view that the appellant’s conduct attracts the
stiffest penalty available. In this regard I now have the
discretion
to award dismissal as the penalty, as did the Designated Official.
It is my view that regard being had to the opening
words at p 12 of
the Code that I have the discretion depending on the severity of the
offence to award what I consider to be a
just penalty. To accept the
appellant’s submissions that there is no discretion that is
afforded to the Designated Official
would lead to the ridiculous
conclusion that this company has no authority to dismiss any of its
employees on a first breach no
matter how fundamental the offence
would have been committed. By way of example that would mean that an
employee can kill or rape
another employee in full view of everyone
and admit to the offence and he cannot be dismissed. Similarly it
would mean that an
employee can commit any of the serious offences in
terms of the Code of Conduct and accept his wrongful conduct and
cannot be dismissed.
It is my view therefore that discretion on the
penalty is available to the Designated Official depending on the
severity of the
offence, although a general guideline for penalties
is provided.







The general penalty for negligence is that an employee can be given a
final written warning valid for twelve months and/or demotion
and/or
suspension without pay for up to thirty days. Regard being had to
this particular case and, as indicated above, the negligence

exhibited by the appellant was gross and therefore severe which
justifies a deviation from the ordinary penalties that would have

been available to me. In these circumstances I agree with the
designated official that the appellant be dismissed.”







The respondent appealed to the Labour Court where his contention
that the Disciplinary Committee was bound by the classification
of
the offences and the penalties provided under s 2 of the Code to
impose the penalty specified thereunder for a first breach
regardless
of the degree of seriousness of the commission of the offence was
accepted by the learned President. The learned President
was of the
opinion that the words “depending on the severity of the
offence committed, the following are provided”
were explanatory
of the basis on which the different penalties were provided in each
class of offences according to whether the
breach is a first breach
or not. The effect of the reasoning adopted by the learned President
was that the Disciplinary Committee
was bound to impose the penalty
indicated for a first breach regardless of the degree of seriousness
of the offence revealed by
the circumstances of its commission.







He said:



“The wording in the Code ‘depending on the severity of
the offence’ does not change the prescribed penalties
under
clause 2.3. The latter clearly provides that a serious offence
warrants dismissal on second breach. The wording relied
on comes as
a preface to all offences, that is minor, moderate and serious. In
other words, read in that context, the words meant
that the penalties
depended on the severity or classification of the offence as minor,
moderate or severe. The words do not give
the respondent authority
to impose a penalty more severe than the prescribed penalty.”







It appears to me that the learned President proceeded on the basis
that s 2 was couched in clear and unambiguous language, the
meaning
of which the court was bound to give effect to regardless of the
consequences. To the contrary s 2 of the Code is unhappily
couched
in vague and ambiguous language, giving rise to a problem of its
construction to ascertain the intention of the parties
to the Code.
It is not usual to talk in terms of the “severity” of an
offence. It is common to refer to the “severity”
of a
penalty to describe the intensity of the suffering the penalty is
likely to bring on the person on whom it is imposed. I
notice that
the learned President used the words “serious” and
“severe” interchangeably to describe the
offences in the
third class of the offences.







Where the words used are susceptible to more than one meaning as is
the case with the language of s 2, it is the rule of construction

that a court should avoid adopting the meaning which would lead to
absurdity. Maxwell, Interpretation of Statutes, 12th
ed states at p 105:



“Before adopting any proposed construction of a passage
susceptible of more than one meaning, it is important to consider
the
effects or consequences which would result from it, for they often
point out the real meaning of the words. There are certain
objects
which the legislature is presumed not to intend, and a construction
which would lead to any of them is therefore to be
avoided.”







Before adopting the construction of the words “depending on the
severity of the offence committed, the following are provided”,

proposed by the respondent, I look at the consequences which would
result from it. In the class of offences described as serious

breaches are found the following offences I have selected at random -



1. Unauthorised statements to the Press, or unauthorised public
communication to other employees including posters, placards, or

pamphlets.



2. Any act, conduct or omission inconsistent with fulfilment of the
expressed or implied conditions of contract or carrying out
private
work without authority.



13. Wilful disobedience to lawful orders.



33. Fraud.



34. Theft.







If the construction of the words used in s 2 of the Code proposed by
the respondent was adopted the result would be that an employee
who
goes to the Press and deliberately makes an unauthorised statement
denigrating and defaming his employer would not be dismissed
from
employment upon conviction for the misconduct as long as it was his
first breach of the rule against that conduct. That would
be the
case regardless of the fact that the misconduct goes to the root of
the relationship between employer and employee. The
employer would
be forced to keep the employee in his employment provided he imposes
on him a final written warning valid for 12
months and/or demotion
and/or suspension without pay for up to 30 days and wait patiently
for the day the employee would commit
a second breach to dismiss him.







It would mean that an employee who commits a well planned and
premeditated fraud or theft involving large sums of money against
his
employer would not upon being found guilty of the misconduct be
dismissed because he is a first offender.







It is known that the true extent of the gravity of certain offences
is not known until the full facts and circumstances of their

commission have been investigated. Although the offence included in
the class of serious breaches is described as negligence in
the
performance of work it is known that there are degrees of negligence
which can only be established upon examination of the
circumstances
of the commission of the offence. That would mean that an employee
who is a first offender and is guilty of gross
negligence in the
performance of his work would not be dismissed just as an employee
who has been found guilty of negligence of
a minor degree.





The view of s 2 of the Code adopted by the learned President would
drastically alter the common law. The position at common law
is that
a high degree of negligence, such as gross negligence in the
performance of work, justifies an employer dismissing the
employee:
Wallace v Rand Daily Mail Co 1917 AD 479 at 482. It is a
common law position that commission by an employee of conduct
inconsistent with the fulfilment of
express or implied conditions of
the contract of employment entitles the employer to dismiss him if
the circumstances of the commission
of the offence show that the
continuance of a normal employer and employee relationship has in
effect been terminated. Standard Chartered Bank Zimbabwe v
Chapuka
S-125-04.







We are bound by the rule of construction to the effect that we must
presume that there is no intention to alter the common law.
As Mr
Zhou put it, the Labour Act contains no provision which either
expressly or by implication purports to alter the common law
principle
that an employer has a right to dismiss an employee
following conviction for a misconduct of a material nature going to
the root
of the employer and employee relationship. A code of
conduct cannot alter or abrogate a principle of the common law. It
does
not matter that the code of conduct is a product of an
agreement.







It appears to me that the construction of the words of s 2 proposed
by the appellant is the more plausible. In the first place,
the
words “depending on the severity of the offence committed”
seem to qualify the words “the following are provided”.

What that means is that the intention of the parties was to have the
penalties provided imposed by employers unless there was
evidence in
the circumstances of the commission of the offence which aggravated
the conduct of the employee so as to take it out
of the ordinary
degree of seriousness of the breach. In that case the employer was
entitled to impose the penalty of dismissal
on a first offender.
That position accords with the common law principle that an employer
is entitled upon conviction of an employee
of misconduct which goes
to the root of their relationship to dismiss him. In any case the
fact that the two penalties, that is
to say, the final written
warning valid for 12 months and/or demotion and/or suspension without
pay for up to 30 days and dismissal
are penalties provided for the
serious breaches means that any of them can be lawfully imposed as a
punishment for the offences
in that class of cases.







The appeal is allowed with costs. The decision of the court a
quo
is set aside and substituted with the following order:



“The appeal is dismissed with costs.”



















CHEDA JA: I agree















GWAUNZA JA: I agree



















Gill, Godlonton & Gerrans, appellant’s legal
practitioners