“In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S) at 179F the Court held that the Labour Act [Cap. 28:08] contains no provision which either expressly or by necessary implication alter purports to 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. Once it was accepted that the misconduct the appellant was found guilty of went to the root of the contract of employment, dismissal was the appropriate penalty”.
Introduction
Ajasi Wala v Freda Rebecca Mine SC 56 – 16 buttresses the law that applies when one acts in a manner contrary to the implied and explicit conditions of the employment contract. The case is amongst the countless judgements that posit that when an employee serves his or her personal interests at the expense of the employer’s interests, dismissal is warranted. This case also shows and supports the rule that a court cannot casually alter a penalty imposed by a disciplinary tribunal.
The Facts
The appellant employee was the acting Human Resources Manager for the Respondent mining company. He was asked for the personal files of all employees. His disciplinary record for the seventeen years he has been employed by the Mine was missing. He was the custodian of those documents. When it became apparent that he had removed from his personal file all the relevant disciplinary documents he was charged with contravening ss 4(a) and (g) of the National Employment Code of Conduct Regulations (S.I 15 of 2006). He was also accused of intimidating a newly appointed Human Resources Manager and failing to discipline employees as required. Eventually, he was dismissed from employment.
An arbitrator that handled the appellants dismissal concluded that he had been properly found guilty but went on to alter the penalty and ordered reinstatement to his former position. Aggrieved, the respondent company appealed to the Labour Court which court set aside the Arbitrator’s determination. This Labour Court judgement founded the current appeal as the employee became aggrieved.
The Law
The main question before the court was whether the Labour Court made an error in interfering with the decision of the arbitrator. The main principle in such cases is that an appellate court can only substitute its discretion for that of the tribunal whose decision is being appealed against where there has been a serious misdirection or error of law committed by the tribunal. In applying this principle, the Supreme Court made use of the remarks in a matter between Tobacco Sales Floors Ltd. v Chimwala 1987(2) ZLR 210(s), where McNally JA approved the dictum by Lord James of Hereford in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on at 218H-219A to say:
“I consider that the seriousness of the misconduct is to be measured by whether it is ‘inconsistent with the fulfilment of the express or implied conditions of his contract’. If it is, then it is serious enough prima facie to warrant summary dismissal. Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted.”
It is therefore apparent that where the act of the employee is inconsistent with the fulfilment of the express or implied conditions of his contract, summary dismissal is warranted. It was further found that it is a serious act of misconduct for an employee to deliberately act against the employer’s policies and to advance personal interests.
The conduct of the employee went to the root of the employment to warrant dismissal. This was mainly because he had caused the disciplinary documents under his custody to disappear and to make it appear as if he had a clean disciplinary record. With regards to the employer’s discretion to dismiss an employee the court took into consideration Mashonaland Turf Club v George Mutangadura (SC 5/2012) which precludes the Labour Court and the Arbitrators from altering the penalty of dismissal.
Conclusion
The appeal was found to be without merit and was dismissed.
Own Comment
The judgement ramparts the well-known principle that an act or omission which is inconsistent with the fulfilment of the express or implied conditions of his contract warrants dismissal if it goes to the root of the employment relationship. This will be so if an employee’s actions or omissions show that the employee was desisting from serving the employer’s interests.