“It is clear that the filing of the medical aid claims was an integral part of the respondent’s duties as an employee of the appellant. Where an employee fails to further the interests of the employer by omitting or refusing to do the work he is employed to do such failure amounts to serious misconduct that goes to the root of the employment contract. There can be no doubt on the facts of this case that the respondent failed to execute her duties as was expected”.
Introduction
Let’s say you are conducting a disciplinary hearing and you observe that an employee has been charged with an offence that warrants a final warning letter. Let’s also imagine that in the course of the same proceedings you realize that the offence committed is of a serious nature. Would you dismiss the employee?
In the world of criminal justice, a person cannot be found guilty of an offence they were not charged with. In the civil sphere, particularly administrative hearings, the position is a bit different. ZB Bank v Maria Masunda SC is authority of the fact that an employer has a discretion to dismiss an employee if he or she takes a serious view of the offence.
The Facts
The facts relevant to this discussion are hereby summarized. The respondent employee was employed by the appellant company as a Health Education Officer. In August 2007 the employee informed her superior that she was overwhelmed with work. In December 2007 she went on a training program. In January 2008, she went on leave. She wrote to her supervisor that she needed more labour. No additional labour was availed. Apparently, in violation of the company procedure, medical aid forms were not being filed. A new manager was appointed who found the situation undesirable. The employee was charged with contravening section 10 (2) of the Code of Conduct for the Banking Undertaking Statutory Instrument 273 of 2000 for ‘negligence causing substantial loss to the bank’ and in the alternative, ‘failure to comply with standing instructions or follow established procedure resulting in substantial loss to the Bank.’ The respondent employee was found guilty of ‘gross negligence’ for not submitting CIMAS claims totalling ZW$623 trillion over the period December 2007 to May 2008. I
In terms of the code of conduct, this offence was a category D offence that warranted a penalty of dismissal. An appeal to the National Employment Council Appeals Board resulted in a finding that she had been wrongfully dismissed. The employer was ordered to reinstate her without loss of salary. Aggrieved, the employer appealed to the Labour Court which appeal was dismissed resulting in the current proceedings.
The Law
The court took into consideration various precedencies. First, it found that even though the employee was charged with ‘mere negligence”, what she did was a serious act of misconduct when all factors are taken into consideration. It ruled:
“It should be noted that disciplinary proceedings, not being courts of law, are not bound by strict rules of procedure and it was quite proper for him to find her guilty of gross negligence where the evidence disclosed such an offence”.
The court went on to say:
At common law, an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract. See Toyota Zimbabwe v Posi SC-55-07. In essence, where the employer takes a serious view of the misconduct, he can dismiss an employee even if in terms of the code of conduct the offence would have attracted a lesser penalty. This position was set out in Zimplats (Pvt) Ltd v Godide SC 2/16 where GOWORA JA noted that:
“At common law, an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. [2] It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been misdirection in the exercise of such discretion”
It is therefore apparent that how an employer views an offence is crucial when dealing with workplace offences. It becomes irrelevant that the code does not provide dismissal as a penalty.
Reference was made to Circle Cement v Nyawasha SC 60/03, where this court held:
“Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.””
The court saw that the hearing was conducted fairly. That the employee had the chance to respond to the allegations raised against her. The hearing officer took a serious view of the misconduct and the fact that the employee had not reported that the medical forms were not being filed. The financial loss that came with the employee’s misconduct was huge.
The court thus accepted the hearing officer’s discretion in dismissing the employee.
Conclusion
For the reasons indicated above, the court allowed the appeal.
Own Comment
In addition to NEC – Catering Industry v Richard Kundeya & Others SC 35-2016 this judgement reiterates what has been ruled on a sundry of occasions. If an employee commits an offence that goes to the root of the employment relationship, the employer has the discretion to dismiss the employee. The judgement also buttresses the common law position which is to the effect that an employee can still be dismissed if the employer takes a serious view of the offence. In this case, the fact that the employee had complained because of the workload did not excuse her from advancing the employer’s interests. This case should not be used to justify serious deviations from a code of conduct.