ZIMBABWE REVENUE AUTHORITY
SUPREME COURT OF ZIMBABWE
GWAUNZA JA, GOWORA JA & GUVAVA JA
HARARE, JULY 25 2014
O Mpofu, for the appellant
T Mpofu, for the respondent
GUVAVA JA: This is an appeal against the judgment of the Labour Court handed down on 17 January 2013.
The brief facts of the matter may be summarised as follows. The appellant was employed by the respondent as a manager in its audit department. She was allocated for her use, a computer which had an internet facility already installed. The computer and the internet facility were for official use in the course of her employment. On 13 July 2011 she was suspended from employment and on 18 August 2011 after due investigation she was charged in terms of the respondents’ Code of Conduct under respondents’ most serious category with two offences that is:-
Wilfully applying a wrong use, or unauthorised purpose, to assets or to property; or alternatively
Carrying out an act which is inconsistent with the express or implied conditions of the contract of employment.
She was found guilty of both charges by both the Disciplinary Grievance Committee and the Appeals Committee and as a result she was dismissed from employment.
Dissatisfied with the penalty of dismissal she appealed to the Labour Court which upheld the dismissal.
The appellant has appealed to this Court on two grounds set out as follows:
The court a quo erred at law in upholding appellant’s dismissal on the basis of an IT policy document which was not part of her contract of employment.
The court a quo grossly misdirected itself and erred at law in failing to consider relevant issued (sic) placed before it. It ought to have considered and made a finding on whether or not appellant’s computer could have been hacked in the light of evidence placed before it. The allegation against the appellant was that on 22 April 2010 she had sent a video clip entitled “work done in the kitchen” via email. It was not in dispute that the video clip contained indecent, obscene and immoral material. It was found that the dissemination of such material was contrary to the IT policy of the respondent which formed part of her contract of employment. The offensive material had been sent from her computer during working hours.