MALIMANJI v CENTRAL AFRICA BUILDING SOCIETY 2007 (2) ZLR 77 (S)

Flynote

Employment ” code of conduct ” proceedings under ” code not covering a specific situation ” person admittedly guilty of dishonesty charged with unsatisfactory performance of work ” dishonesty an example of such performance ” charge proper

Headnote

The appellant, a bank teller, recorded a shortfall in his money and reported the matter. A few days later, he told his superiors that he had recovered ^δthe money from a client whom he had overpaid. In fact he had not overpaid anyone and had paid the money in from his own resources. He was charged under the bank's code of conduct with "unsatisfactory work performance", found guilty and dismissed. The Labour Court, to which he had unsuccessfully appealed, held that, by acting dishonestly, ^εhe had performed his duties in an unsatisfactory manner. The appellant argued that, under the code of conduct, dishonesty and unsatisfactory work performance were listed separately and, by definition, did not cover the type of conduct that led to misconduct charges being preferred against him.

Held, that lying about the overpayment and the source of the refund was, by ^εany definition, a serious offence. In a financial institution, such as the respondent, integrity and honesty are fundamental attributes forming an integral part of the employee's performance of his work. The respondent's code made it clear that such conduct as unsatisfactory performance of work and dishonesty were dismissible offences. Details of conduct that would constitute such offences must be viewed in the light of being examples. They could not possibly have been meant to be exhaustive. The conduct with which the appellant was charged constituted dishonesty and unsatisfactory performance of his work, if the ordinary meaning of those words was to be applied. One cannot strictly interpret the provisions of a code or restrict it to what the lay draftsmen stated.

It would not be in the interest of justice to find that an admitted act of dishonesty was not covered in the code because the drafters shoddily drafted the offences.