No. SC 47/07
Appeal No. 319/05
AFRICA BUILDING SOCIETY (CABS)
SUPREME COURT OF
GWAUNZA JA & GARWE JA
HARARE, SEPTEMBER 3,
for the appellant
H Zhou, for
GWAUNZA JA: At the hearing of this appeal, counsel for
the appellant conceded that he had no meaningful submissions
on behalf of the appellant. Counsel for the respondent then moved
for the dismissal of the appeal with costs. This
dismissed the appeal with costs and indicated that the reasons would
follow. These are they.
The facts of the matter are as follows. The appellant was
employed as a bank teller by the respondent. On 31 March 2003
he recorded a shortfall of $50 000.00 and made a report to his
superiors. A few days later, the appellant reimbursed the
$50 000.00. He, however, lied to his superiors that he had
recovered the money from a client whom he had overpaid.
he had paid the money from his own resources.
The appellant was subsequently charged with the misconduct of
unsatisfactory work performance, was found guilty and dismissed
from his employment. His successive appeals to the Local Joint
Committee, the Negotiating Committee and the Labour Court were
unsuccessful. He has now appealed to this Court.
The court a quo found that the appellant, having acted
dishonestly, had performed his duties in an unsatisfactory manner and
was therefore properly
dismissed. The court a quo noted
as follows at p 4 of its cyclostyled judgment (Judgment No.
He (the appellant) acted dishonestly. He performed his duties in
an unsatisfactory manner in that he sought to mislead the
to how he had incurred the shortfall and further as to how he had
recovered the shortfall. Performing your duties
in a dishonest
manner is clearly unsatisfactory work performance.
The appellant takes issue with the decision of the court a quo
on a number of grounds.
Firstly, the appellant seeks to argue that the court a quo
erred in holding that by lying about the source of the refund, he had
committed an act of dishonesty as contemplated by s 5
to PART IV
Offences of the respondents Code of Conduct (the Code). He
contends that under the Code dishonesty and
performance are listed separately and, by definition, did not cover
the type of conduct that led to misconduct
charges being preferred
I do not find any merit in these contentions. The appellant does
not deny that he lied, firstly by saying that the shortfall
occasioned by an overpayment made to a client, and secondly by
stating that the same client had provided the refund. These
any definition serious offences. As correctly contended for the
respondent, in a financial institution, such as the respondent,
integrity and honesty are fundamental attributes forming an integral
part of the employees performance of his work.
The respondents Code makes it clear that such conduct as
unsatisfactory performance of work and dishonesty are dismissible
offences. Details of conduct that would constitute such offences
must be viewed in the light of being examples. They could
possibly have been meant to be exhaustive. Viewing them as
exhaustive would result in the ridiculous situation where someone
commits an offence that in the ordinary sense would constitute the
conduct in question, e.g. dishonesty, would walk free simply
the specific offence was not listed as an offence. That could not
have been the intention of the drafters of the Code,
who, in general,
are not schooled in the law.
The conduct with which the appellant was charged constituted
dishonesty and unsatisfactory performance of his work, if the
meaning of those words is to be applied. The court a quo
was alive to this interpretation and noted as follows at p 3 of
its cyclostyled judgment:
The Labour Court is a court of equity concerned, not with the
formalities and technicalities of the legal profession, but with
achieving just and equitable resolution of disputes between the
Earlier on, the learned President of the Labour Court had observed,
again correctly, as follows at p 3 of its cyclostyled
The Supreme Court has stated in Coh Coh Enterprises v
Mativenga and Anor SC 30/2001 that one cannot strictly
interpret the provisions of the Code or restrict it to what the lay
It would not be in the interest of justice to find
that an admitted act of dishonesty is not covered in the Code because
shoddily drafted the offences.
These passages being apposite to the circumstances of this case, I am
satisfied the appellant was properly charged, convicted
dismissed from his employment.
Secondly, the appellant takes issue with the court a quos
finding that the penalty of dismissal was properly imposed. He
contends that the court a quo erred in not considering
the imposition of other alternative forms of punishment besides
The issue of what punishment to impose after an employee is found
guilty of an act of misconduct is clearly one of discretion.
respondents Code emphasises this in para 3.4 of its Part I,
which reads as follows:
3.4 The penalties to be imposed for each offence are specified in
Part IV and Part V. Part V applies to the
Security Sector only. However, an employer may apply a lesser
penalty at his discretion. (my emphasis)
It is trite that an appeal court does not interfere with the
exercise of discretion by a lower tribunal unless it is shown that
the discretion was improperly exercised. As contended for the
respondent, the penalty imposed must show a serious misdirection
justify interference by the appeal court. The misconduct with which
the appellant was charged attracts the penalty of dismissal.
is nothing in the manner in which the proceedings were conducted, and
the evidence against him considered, to suggest any
the part of the employer.
The court a quo was therefore correct in upholding the
decision to dismiss the appellant from his employment.
In the light of the foregoing, we were satisfied the appeal had no
merit, hence we dismissed it with costs.
ZIYAMBI JA: I agree
GARWE JA: I agree
Mbidzo, Muchadehama & Makoni, appellant's legal
Gill, Godlonton & Gerrans, respondent's legal