Faith Ndagurwa v NetOne Cellular (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 26th MARCH, 2024
JUDGMENT NO LC/H/87/25
CASE NO LC/H/266/23
AND 27th FEBRUARY, 2025
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 26th MARCH, 2024

AND 27thFEBRUARY,2025

FAITH NDAGURWA VS

NETONE CELLULAR (PVT) LTD

Before the Honourables Musariri, Chivizhe,JJ:

JUDGMENT NO LC/H/87/25

CASE NO LC/H/266/23

APPELLANT

RESPONDENT

For Appellant	-	Mr S. Murondoti (Legal Practitioner) For Respondent	-	Mr R. Matsikidze (Legal Practitioner )

CHIVIZHE, J:

This is an appeal in terms of Rule 19 of the Labour Court Rules, 2017. The appeal was noted as against the determination of the Internal Appeals Committee handed down on 14th March, 2023. The appeal is opposed. In relief Appellant prays for an order in the following terms;

“a.	The Appeal succeeds with costs on an attorney- client scale.

b.	The entire decision of the Appeals Committee be and is hereby set aside and substituted with the following;

i.)	Faith Ndagurwa be and is hereby reinstated without loss of pay and benefits.”

BACKGROUND

The Appellant was employed by the Respondent in the Commercial department at the Netone Julius Nyerere Branch. She was suspended on 2nd February 2023. The Appellant was charged with Breach of Category 4 – Gross Misconduct, (b) – Gross unsatisfactory work

performance/incompetence – when an employee neglects his duty or if he does not perform his duties at all, wilfully or half performs it, or abandons it or does not care whether his job is done or not according to the Netone Cellular Private Limited (Non Managerial) Code of Conduct. The allegations surrounding the charge were that Appellant had voluntarily and negligently shared her Smart account password and credentials with one Khumbulani Nyapfumbi who went on to perform fraudulent transactions using the Appellant’s password on five occasions being the 3rd, the 5th, the 6th, 20th of December, 2022, and the 19th of January, 2023 respectively. The Appellant’s alleged negligence resulted in the company suffering a cumulative loss in the sum of ZWL565,999,964.00. The Appellant denied the charges claiming she had not acted negligently but had followed the instructions given to her by her immediate superior, Jemina Karombe, who had told her to share the password with Khumbulani in an effort to speed up the work process as the Appellant was pregnant and unwell during this period. The Disciplinary Committee was of the view that the Appellant, upon being requested to share her password, had a duty to report the anomaly to her Zone Commander, Loss Control or TI and such failure to do so amounted to conduct inconsistent with the employee’s contract of employment Her view was that she would not want to be seen to be reporting her Superior. She was also obeying a lawful order by her Superior. The Appellant was found guilty of charged levelled against her and subsequently dismissed from employment. Following her dismissal, the Appellant filed an appeal with the Appeals Hearing Committee in terms of the relevant code of conduct. The Appeal was concluded on the 13th of March 2023. The Appeals Committee upheld the decision and penalty imposed by the Disciplinary Committee.

POINT IN LIMINE

The Respondent had taken a point in limine that the application was fatally defective. The Applicant in relief was seeking for the setting aside of the determination and her reinstatement to her original position. The Respondent‘s position was that it was a trite position at law that whenever an employee is seeking for reinstatement, he must also pray for an alternative of damages in lieu of reinstatement. The Respondent had placed reliance on Olivine vs Gwekwerere 2005(2) ZLR 421, Mandivinga vs NSSA. Respondent’s Counsel reiterated the same position in oral submissions. He maintained that once an appeal is fatally defective it amounts to a nullity, the application had to be struck off the roll with costs on a higher scale.

The Appellant Counsel, in counter, submitted that the appeal was properly before the court. The Respondent was improperly placing reliance on Section 89 (2) (c)(iii) of the Labour Act [Cap 28:01]. The Appellant’s position was that Section 89 2(c)iii specifically applies to powers of the Labour court in applications for review. Section 89 (2a) was the provision that specifically governs appeals. The section however did not mandate that an appeal should in relief also include damages in lieu of reinstatement. Counsel further submitted that by expressly mentioning applications it means appeals are excluded under Section 89(2)(c)(iii) In other words, the expressio unius exclusio alterius principle applied.

Appellant’s Counsel also noted that the circumstances in the two matters referred that is Olivine Industries vs Gwekerere and Mandivinga vs NSSA involved applications and not appeals. They were therefore inapplicable in the circumstances of the present matter.

Counsel further submitted that it was in any event a trite principle that whenever the relief of reinstatement is sought an order for damages in lieu of reinstatement is also available automatically. In other words, it is available as a matter of law.

Finally he submitted that it was in any event clear on the basis of Section 89 of the Labour Act [CAP 28.01] that the Labour Court is granted power to make any order as it deems fit. The court is after all set up as a specialised court and not a court of justice. Section 2A of the Labour Act also advances the principles of social justice and democracy in the workplace. The omission of the alternative remedy for damages in lieu of reinstatement was therefore not fatal to the appeal. The authority in Jansen vs Acavalos referred to by the Respondent also did not apply as it was based on an interpretation of Supreme Court Rules and not Labour Court Rules. Appellant Counsel also addressed the issue of higher costs that Respondent was seeking. He contended that costs should not be used as a weapon by an employer against an employee. This is especially in view of the vertical relationship involved where the employer is the one wielding power over a powerless employee.

In reply, Counsel for Respondent submitted that the two authorities referred to where applicable. It had to be noted that Olivine vs Gwekwerere was an appeal in the Supreme Court based on an application for damages in lieu of reinstatement that had been before this court. Mandiringa vs NSSA was an application for registration of arbitral awards in the High Court where in Makarau J(as she then was) had found that the relief of reinstatement without an alternative remedy for damages in lieu of reinstatement was incompetent. The court after considering the submissions and the authorities dismissed the point in limine. It was indicated that reasons would follow. These are they.

The Respondent was clearly correct in its interpretation that section 89(2)(c)(iii) relates only to applications whereas Section 89(2a) specifically governs appeals. I find it convenient to reproduce section 89(2). It reads as follows:

(2)In the exercise of its functions, the Labour Court may—

in the case of an appeal—

conduct a hearing into the matter or decide it on the record; or

confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order; or

…. [Subparagraph repealed by section 29 of Act 7 of 2005] (iv) ….. [Subparagraph repealed by section 29 of Act 7 of 2005]

……………………………..

in the case of an application made in terms of subparagraph (ii) of subsection (7) of section ninety-three, make an order for any of the following or any other appropriate order—

back pay from the time when the dispute or unfair labour practice arose;

in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the Labour Court, adequately 45 compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;

reinstatement or employment in a job: Provided that—

any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;

in deciding whether to award damages or reinstatement or employment, onus is on the employer to prove that the employment relationship is no longer tenable, taking into account the size of the employer, the preferences of the employee, the situation in the labour market and any other relevant factors;

should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the employer, punitive

In dismissing the point in limine, however we were persuaded by the Appellant submissions that, under section 89(2a) referred to above, the Court is given wide powers in the process of determining an appeal, to grant any award including power to substitute its own decision. It was also our view that as a specialised court the Labour Court should be driven by the principles of ensuring social justice and democracy at the workplace. This means that the court ought not to decide matters on technicalities but on merits. Many authorities from the Supreme court have emphasised this point. The failure to pray for an alternative relief of damages in lieu of

reinstatement therefore did not render the appeal invalid. This was the basis for dismissing the point in limine.

GROUNDS OF APPEAL

The appeal has been noted on the basis of the following grounds;

The Appeals Committee erred in failing to take into account that the Respondent does not have password sharing policies in place which precluded the Appellant from sharing her password on the lawful instruction of her supervisor.

The Appeals Committee erred and grossly misdirected itself when it concluded that there is a common law duty on an employee which prevents her from sharing her password upon a supervisor’s instruction when in actual fact no such duty exists. In so doing, the Appeals Committee acted on a wrong principle.

The Appeals Committee erred and grossly misdirected itself when it failed to consider that there being no legal impediment against sharing a password to a co-worker on the direct instruction of a supervisor, the Appellant did not commit an act of misconduct.

The Appeals Committee erred and grossly misdirected itself in failing to consider that the Appellant’s culpability, if any, is absolved by the fact that she was indisposed and that she did not have any physical control over how her password would be used.

The Appeals Committee erred in failing to give reasons for its decision upholding the Appellant’s dismissal.

PARTIES SUBMISSIONS

On the 1st ground of appeal, Counsel for the Appellant submitted that the Appeals Committee fell into error when it dismissed the Appellant based on a non-existing Password Sharing Policy, more so when it was clear she had shared at the behest of her supervisor. The Respondent had failed to point out where in the code it was prescribed that the Appellant ought not to obey lawful instructions from her immediate superiors. Appellant’s Counsel further submitted that this was a violation of the maxim ‘The Nullum crimen sine lege’ which means ‘no crime without law.’ Therefore, the decision by the Respondent to convict and dismiss the Appellant in the absence of a clear law or policy was grossly erroneous. The Appellant relied on the authority in Ruturi v Heritage Clothing (Pvt) Ltd (1994) (2) ZLR 374 (S) where the court stated that to make a finding on no evidence is to err in law.

On the 2nd ground of appeal, the Appellant’s counsel submitted that the duty to obey lawful instructions from the employer is at the core of the relationship between the employer and employee. A breach of such a duty by the employee goes to the root of the employment relationship. He placed reliance on the case of Attorney-General v Leopold Mudisi & 4 Ors SC 48/12 where the court stated that ‘it was also clear that an employer, whether under a contract of employment or under a secondment arrangement, has the common law right to summarily dismiss an employee who is insubordinate or wilfully disobedient to the extent of undermining or destroying the very core and substratum of their relationship.’ Appellant’s Counsel further submitted that it was clear from these authorities that the Appellant acted lawfully to obey a lawful instruction. Page 4 of the minutes of the hearing proceedings clearly pointed out that The Loss Control Report at page 13/26 showed the acknowledgement by the Appellant that indeed, the password had been given to Khumbulani by the Appellant at the behest of her supervisor. Therefore, it was unfathomable as to how the Respondent concluded that there was a common law duty which prevented the Appellant from lawfully sharing her password with a fellow employee at the behest of her supervisor. The Appellant’s position is that the Appeals Committee therefore acted on a wrong principle.

On the 3rd ground of appeal, the Appellant’s Counsel submitted that the Respondent fell foul of the law in that it failed to make a finding that there was no legal duty which barred the Appellant from sharing her password upon an instruction to do so by her supervisor. Reliance was placed on the common law maxim of ‘Nulla poena sine lege’ meaning ‘no penalty without law.’ On this basis, Appellant’s Counsel contended that the determination of dismissal of the Appellant stands on nothing and therefore violated the principle of legality.

On the 4th ground of appeal, Counsel for the Appellant contended that the Respondent ignored the facts of the case and simply wielded an axe to dismiss the Appellant thus prejudicing the Appellant in their approach. Counsel further noted that the Respondent Appeals Committee failed to find that at the material time, the Appellant was unwell or unable to thoroughly perform her duties as per contract. She had brought this to the attention of the Supervisor who had then assigned Khumbulani to assist her. Khumbulani had however raised an issue to the supervisor that he was unable to access the system using his own password. He was then instructed to obtain the Appellant’s password, to which the Appellant complied. Counsel for Appellant contended that it was inconceivable as to how Appellant would have

been expected to monitor the use of her password when she was unable to religiously report for duty during the period in question. Reliance was placed on the authority in Reserve Bank of Zimbabwe v Granger & Anor SC 34/2000 where the court held that “a gross misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented, or a finding that is without factual basis or based on misrepresentation of facts.” On this basis, Appellant’s Counsel contended that the determination of the Disciplinary Committee as well as the Appeals Committee ought not to stand as it was made from incorrect factual findings.

On the 5th and last ground of appeal, the Appellant’s Counsel submitted that the deliberations of the Appeals Committee were not availed to the Appellant at all, thus pointing to the fact that the Respondent simply wielded an axe to cut the Appellant from employment at all cost. Such conduct by the Respondent was prejudicial and unfair to the Appellant. Counsel submitted that the Constitution of Zimbabwe, 2013, in terms of s 68 (2) requires that reasons be given in writing to every person whose rights and interest are affected. Appellant’s Counsel cited authorities in Makawa & Anor 1991 (1) ZLR 142 (S) and Gwaradzimba v C. J. Petron and Company (Pvt) Ltd SC 12/16 wherein the court held that “The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed the failure to resolve the dispute or give reasons for a determination is a misdirection that vitiates the order given at the end of the trial.” On this basis Appellant’s Counsel contends that the appeal ought to succeed.

.

RESPONDENTS SUBMISSIONS

On the 1st ground ,the Respondents in their Heads of Argument submitted that the Appeals Committee correctly upheld the decision of the Disciplinary Committee in finding the Appellant guilty of gross unsatisfactory work performance/incompetence as stipulated in the Code of Conduct. The Respondents further submitted that; the Appellant never disputed that there were no rules that prohibited the sharing of passwords. Therefore, the fact that there was no written policy did not exonerate the Appellant from the wrongful conduct. Counsel for the Respondent also submitted that the Appellant in the hearing confirmed the position that passwords were indeed not supposed to be shared. Respondent’s Counsel placed reliance on

the authority of Merchant Bank of Central Africa v Dube 2004 (1) ZLR 155 (S) where the court held that, “although gross negligence is incapable of precise definition, an entire failure to consider the consequences of one’s actions or omission or a total disregard of one’s duty would constitute negligence.” Respondent’s Counsel also relied on Professor L. Madhuku’s argument that under common law, an employee must undertake to be reasonably competent in the performance of his/her work. Therefore, the Appeals Committee correctly held that by sharing the password, the Appellant failed to act diligently thus resulting in a major loss to the Respondent.

On the 2nd ground of appeal, the Respondent disputed the Appellant submissions. The Respondent noted that the Appeals Committee was correct in upholding her conviction and penalty, especially in view of her failure to lead evidence in support of her position that she had been instructed to share the password. The Appellant had also failed to prove duress or undue influence before the Disciplinary Committee.

On the 3rd ground of appeal, the Respondents made no submissions in respect of the illegality of the decision made by the Disciplinary Committee, simply maintaining that the Appeals Committee correctly upheld the decision of the Disciplinary Committee in finding the Appellant guilty of gross unsatisfactory work performance/incompetence as stipulated in the code of Conduct.

On the 4th ground of appeal the Respondent’s Counsel in submission, maintained that the Appeals Committee correctly upheld the decision of the Disciplinary Committee of finding the Appellant guilty of gross unsatisfactory work performance/ incompetence as stipulated in the code of conduct. The rule precluding sharing of passwords was mearnt to protect the employee as well as the employer interests. The Appellant had conducted herself negligently resulting in financial losses for the Respondent.

On the last ground, Respondent submission was that it too lacked merit. On this basis the Respondent prayer was for the appeal to be dismissed with costs.

EVALUATION

On the 1st and 3rd ground of appeal, it is an established position at law that an employee can be charged with wrongdoing not contained in a code of conduct, however this is subject to

limitations and considerations. The Labour Act [Cap 28:01] and Labour Regulations provide that an employer can discipline or terminate an employee for misconduct, which includes acts or omissions that are not specifically listed in a code of conduct. However, the employer must still follow fair disciplinary procedures and prove that the employee’s conduct was unreasonable or harmed the employer’s business and substantiate the allegations with evidence. This position was held in the Supreme Court case of Chitungwiza Municipality v Madzivanzira 2013.

The Respondent charged and found the Appellant guilty of Breach of Category 4 – Gross Misconduct, (b) – Gross unsatisfactory work performance/incompetence – when an employee neglects his duty or if he does not perform his duties at all, wilfully or half performs it, or abandons it or does not care whether his job is done or not. It is not in dispute that the Appellant indeed shared her ZSmart password with one Khumbulani Nyapfumbi. This action ultimately resulted in the company suffering a cumulative loss of ZWL565,999,964.00. Therefore, although the misconduct alleged is not part of any written code, it is not unreasonable to assume that the purpose of assigning each employee a personal Smart Account and password would be for the purposes of privacy and security. Although the Appellant submitted that she only did so because it was an order from her immediate superior, this did not relieve her of her duty to perform due diligence first. She did not attempt to enquire from her supervisor as to why her personal password had to be used and as to what it was being used for. She also did not bother to find out why Khumbulani’s password had been blocked in the first place. The 1st and 3rd ground of appeal are therefore meritless.

On the 2nd ground of appeal, employees have common law duties which may be implied in terms of their contracts. These duties include but are not limited to fiduciary duties, duty of care meaning employees must exercise reasonable care and skill in their work to avoid causing harm to their employers and the duty of obedience which puts an expectation upon employees to obey lawful and reasonable instructions from their employer. The Disciplinary Committee, therefore, did not err in relying upon the common law duty to refrain from sharing passwords. The sharing of the Smart password by the Appellant, resulted in a breach of the common law duty of care. The Appellant submitted that she was instructed to share her confidential password by her Supervisor which instruction was clearly unreasonable instruction by her Supervisor. The Appellant ought to have known potential their damage to her employer that could result from any mistake, abuse or misuse of her account. She ought to have easily

given away the confidential information which would allow easy access to her account. The ground of appeal is thus meritless.

On the 4th ground of appeal, Appellant’s Counsel submitted that the Appellant’s culpability if any ought to be reduced on the basis that she was indisposed at the time of these occurrences. The extent of culpability is dependent on varying factors such as the severity of the damages resulting, the circumstances surrounding the password sharing and the employee’s responsibilities as well as company policies and procedures. In casu, the Appellant was unwell during the period of the occurrences. Although this may reduce culpability to some extent, an employee regardless of their state, still must uphold their fiduciary duty to act in the best interests of their employer. It was however negligent of the Appellant to share her password knowing very well she would not be in a position to monitor what her password or account would be used for. Sharing a password used to access sensitive information or sensitive company assets amounts to a failure to take reasonable care to protect company assets/ data. It also amounts to negligent conduct. In the circumstances, although she was not directly responsible for the theft, her negligence contributed to the loss suffered by the Respondent. She was responsible for the sharing of the password and account which ultimately contributed to the theft. This factor alone clearly outweighed any mitigatory factors in her favour. This ground of appeal clearly has no merit.

On the 5th ground of appeal, my brother Judge, Musariri J addressed the same issue in the judgment issued under case reference LC/H/173/24 which was an application for review. Under ground of review number 4, Musariri J reiterated that;

“The Appeals Committee (AC) made “Findings” which dealt with appellant’s grounds of appeal (a)to (d). Each of the grounds were dismissed and the reasons therefore are given. The findings conclude by dealing with the “Penalty”. It is not clear how Applicant missed the reasons for the dismissal of her appeal by the AC. However, the point is that the reasons were given and they are on record, thus this ground is baseless.”

The record on pages 73 to 74 clearly outlines the reasons for the decision made by the Appeals Committee. These were furnished to the Appellant. Therefore, this ground of appeal is meritless, it holds no water.

DISPOSITION

The present appeal clearly has no merit. It is accordingly ordered as follows;

The appeal be and is hereby dismissed with costs.