Marvo Stationery Manufacturing (Private) Limited v Lovemore Jokwani and 5 Others

The respondents were former employees of the appellant company who were charged with misconduct for allegedly gambling on the appellant's company premises during working hours. A hearing was held on 3 December 1996 in terms of the Code of Conduct. The respondents denied the charge but were found guilty and dismissed. After a series of hearings and applications, the Labour Court on 11 November 2003 held that the respondents had been unfairly dismissed and ordered reinstatement with an alternative for payment of damages. The appellant company appealed this decision. The respondents disputed that gambling took place during working hours, with some suggesting it occurred during lunch hour. The evidence suggested it was a one-off occurrence rather than persistent conduct.

• Whether gambling on company premises during working hours constitutes misconduct under section 3.8.1(c) of the Collective Bargaining Agreement Code of Conduct (Statutory Instrument 322 of 1993)
• Whether the list of dismissable offences in section 3.8.1(c) of the Code of Conduct is exhaustive or merely illustrative
• Whether conduct must be of a serious nature to constitute a breach of contractual obligations warranting dismissal under section 3.8.1(c)
• Whether commission of a criminal offence on employer's premises automatically constitutes misconduct under the Code of Conduct

The appeal was dismissed with costs.

For conduct to constitute a contravention of section 3.8.1(c) of the Code of Conduct warranting dismissal, it must be of a serious nature that amounts to a breach of contractual obligations. The examples listed in section 3.8.1(c) are illustrative and not exhaustive. While gambling during working hours is prima facie conduct in breach of an employee's contractual obligation, gambling on the odd occasion is not of such a serious nature as to amount to a contravention of the Code. Only persistent and serious gambling during working hours would constitute such a contravention. Not every criminal act committed by an employee on the employer's premises constitutes misconduct warranting dismissal under section 3.8.1 of the Code - only criminal conduct of such a serious nature as to amount to a breach of the employee's contractual obligation falls within the provision.

The Court observed by way of analogy that an employee who absents himself from work for less than five days is in breach of contractual obligation but does not contravene section 3.8.1(c) of the Code, whereas absence for five days or more does constitute a contravention. This illustrates the principle that there must be a threshold of seriousness before conduct amounts to dismissible misconduct. The Court also noted that it may well be that the respondents committed a criminal offence by gambling, but this alone was insufficient to establish dismissible misconduct without the additional element of serious breach of contractual obligations.

This case is significant in Zimbabwean labour law for establishing important principles regarding the interpretation of codes of conduct in employment relationships and the threshold for dismissible misconduct. It clarifies that while codes of conduct may provide examples of serious misconduct, these are not exhaustive lists. Critically, it establishes that conduct in breach of contractual obligations must reach a threshold of seriousness before it justifies dismissal under disciplinary codes. The judgment provides guidance on how to assess the seriousness of misconduct, emphasizing factors such as persistence and frequency rather than isolated incidents. It also clarifies that not all criminal conduct automatically constitutes dismissible misconduct - there must be a nexus between the criminal conduct and a serious breach of employment obligations.