Alex Masiya v City of Harare & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/49/2020
HARARE, 22 FEBRUARY 2018
CASE NO. LC/H/LRA/622/17
AND 28 FEBRUARY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	                JUDGMENT NO. LC/H/49/2020

HARARE, 22 FEBRUARY 2018 				    CASE NO. LC/H/LRA/622/17

AND 28 FEBRUARY 2020

In the matter between:

ALEX MASIYA								APPLICANT

versus

CITY OF HARARE								1ST RESPONDENT

AND

DESMOND JAMBAYA							2ND RESPONDENT

Before The Honourables Makamure  & Hove JJ

Applicant				In person

For the 1st Respondent 		Mr R. Zinhema (Legal Practitioner)

For the 2nd Respondent		No appearance

MAKAMURE J:

This is an application for confirmation of an order. It is being made in terms of section 93 (5) of the Labour Act [Chapter 28:01] (The Act). An order dismissing the application was handed down by the court. Reasons were to follow. These are they.

The facts which are common cause are as follows. The 2nd respondent (Mr Jambaya/ Jambaya) is a former employee of the 1st respondent. He failed to pay some maintenance. As a result of such failure, he was arrested and sentenced to a term of imprisonment by the Criminal Courts. As a result of the incarceration, he was absent from duty for close to two (2) months. This, as is clear, was well in excess of five working days. It was due to this absence that his employer preferred charges against him for absenting himself from duty for a period in excess of five working days. He was convicted and penalized with dismissal. Aggrieved by that penalty he approached a Labour Officer for conciliation. Conciliation failed to resolve the matter and a certificate of no settlement was issued with the issue for resolution being alleged unfair dismissal. The Designated Agent then heard the parties.

After considering the facts, the Designated Agent issued the following order and I quote:

“(1)	Claimant was unfairly dismissed.

(2)	The Respondent shall reinstate the claimant to his position of General Laborer

(Grade 16/15) from the date of dismissal without loss of salary and benefits.

(3)	The Respondent shall apply the principle of no work no pay principle for the period 19th December to 22 February 2017.

(4)	In the event that the reinstatement is no longer an option the Respondent shall pay the claimant damages in lieu of reinstatement the quantum of which are (sic) to be agreed by the parties failing which either party may approach the tribunal for quantification.”

The 2nd respondent was imprisoned as a result he was away from duty for a period of excess of five days.  That led to him being charged. It is always up to the employer to exercise its discretion and take the appropriate action for an alleged act of misconduct. (See Zimbabwe Banking Corporation Limited v Saidi Mbalaka SC 55/15). In the present case the employer disciplined the 2nd respondent and penalized him with dismissal. The 2nd respondent was aggrieved by the penalty of dismissal.

Once the employer imposed a penalty it considered to be appropriate, it is trite that an appellate court should not interfere with the discretion of a lower tribunal unless that discretion has been improperly exercised. In Circle Cement v Nyawasha SC 63/03 which has been cited on behalf of the 1st respondent The Supreme Court had this to say:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

I am in agreement with what the Supreme Court held in the Circle Cement case (above). I am not able to say that in imposing the penalty of dismissal the employer acted unreasonably.

In view of the foregoing I find that I am unable to confirm the draft ruling and order. In the result the following order is made.

1.	The application for confirmation of a draft ruling and order be and is hereby dismissed.

2.	The applicant’s order is set aside and in its stead the following is substituted:

“The Claimant was fairly dismissed.”

MAKAMURE J:……………………….

HOVE J:……………………………I agree.

Gambe & Partners, 1st Respondent’s Legal Practitioners