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Dealing with unspecified misconducts

Employers have often struggled with how and whether or not they should deal with cases of misconduct that are not categorically specified in their employment codes of conducts.

In this instalment, I review a Supreme Court labour judgement which sets necessary precedence in such matters.

The case is Marvo Stationery Manufacturing (Pvt) Ltd versus Lovemore Jokwani and 5 others, SC47/05. In this matter, Marvo Stationery is the appellant and Lovemore Jokwani and five others are the respondents.

The details
The respondents in this case were former employees of the appellant company.

They were charged with misconduct. The allegation was that the respondents were among a group of employees that were found gambling at the appellant’s company premises during working hours.
A hearing was held in terms of the Code of Conduct on December 3 1996.

The respondents denied the charge but were found guilty and dismissed.

After a series of sittings, further hearings and applications, the respondents’ appeal was finally heard by the Labour Court on November 11 2003.

The Labour Court held that the respondents had been unfairly dismissed and ordered that they be reinstated with an alternative for payment of damages.

The learned president of the Labour Court allowed the appeal on the following basis:

“This act of misconduct is not specified in the respondent’s Code of Conduct namely the Collective Bargaining Agreement for the Printing Packaging and Newspaper Industry, Statutory Instrument 322 of 1993.’’
The learned president of the Labour Court went on to conclude at p3 of her judgement:

“So there being no definition of the actions by appellants in respondent’s Code of Conduct, it was not proper for respondent to charge them as such. There was no contravention of the code.”
Accordingly, the Labour Court ruled in favour of the employees. Aggrieved by the Labour Court decision, Marvo Stationery appealed to the Supreme Court.

The Supreme Court Judge made the following findings:
“I agree with Ms Moyo’s submission that the examples set out in paragraphs (i) (ii) and (iii) of s 3.8.1(c) are not exhaustive examples. They are only examples and the fact that gambling is not specifically mentioned does not mean that gambling at work does not constitute an act of misconduct in terms of the code,
s 8.3.1(c) in particular.”

“I have no doubt in my mind that gambling at work during working hours is a conduct which is in breach of the employee’s contractual obligations. An employee is contracted to work and not to gamble during working hours. It is also clear from s 3.8.1(c) that it is not every breach of contractual obligation by an employee that constitutes a contravention of the section…”

Supreme Court’s decision
In the final analysis, the Supreme Court made the following findings:
“In the result I arrive at the same conclusion as the learned President of the Labour Court, that the allegations against the respondents do not constitute a contravention of s 3.8.1 of the code, but for different reasons.

I arrive at my conclusion on the basis that although gambling during working hours is, prima facie, a conduct that is in breach of an employee’s contractual obligation, such a breach has to be of a serious nature before it can amount to a contravention of s 3.8.1 of the code.

The gambling revealed on the papers is not of such a serious nature as would amount to a contravention of the code.”
The appeal was therefore dismissed and a ruling was entered in favour of the respondents.

For more labour judgement reviews, get a copy of the Labour Dimensions Magazine, Zimbabwe’s premier quarterly publication on labour matters.

Request Machimbira is the Group CEO for Proficiency Consulting Group International. He is also the Editor-In-Chief of the Labour Dimensions Magazine, Zimbabwe’s premier publication on labour matters.

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