Amos Kunyerezera v Leopard Rock Hotel (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/32/13
MUTARE 17th SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/32/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/32/13

MUTARE 17th SEPTEMBER, 2013			        CASE NO LC/MC/73/11

AND 25TH OCTOBER, 2013

AMOS KUNYEREZERA							Appellant

LEOPARD ROCK HOTEL (PRIVATE) LIMITED				Respondent

Before The Honourable G Musariri, Judge:

For Appellant:		Mr. A. Kunyerezera, Appellant

For Respondent:		Ms. Y. Nyambo, Attorney

MUSARIRI, G:

Appellant appealed against his dismissal from employment by Respondent.  His papers complained about both procedure and the merits.  Respondent opposed the appeal.

However in the course of oral argument, Respondent made two concessions.  Firstly it abandoned its argument based on the distinction between an appeal and a review.  It was obvious that Appellant intended to file an appeal-cum-review.  As a lay person, he could not be expected to draft his papers with the precision of an attorney.  On that basis, I consider Respondent’s concession as well-made.  Respondent also conceded that the charge of assault had not been sustained.  This was based on a perusal of the definition of “assault” in Respondent’s Code.  The definition focuses on a physical assault.  That does not cover the verbal abuse in casu.  I also consider that the Respondent’s concession on this point was well-made.

That left the charge of “deliberate refusal to carry out a lawful instruction.”  Appellant was instructed to stay away from Respondent’s club house.  The instruction was put in writing by the General Manager.

Despite the instruction, Appellant went to the club house and had an altercation with the bar-man and a manager.  Appellant did not deny these facts.  He attacked the rationale behind his “ban” (his own word) from the club house.  The facts show that the offence was proved on a balance of probabilities.

However respondent’s case was marred by one thing.  It related to the Chairman of the disciplinary committee that heard the matter.  The Chairman was apparently also a victim of verbal abuse by Appellant.  It is alleged that soon after the altercation at the club house, Appellant proceeded to the Chair’s office and abused him.  I noted Respondent did not rely on that abuse to bolster its case.

However the point is that as one of the victims of the Appellant’s conduct in question, he could not be regarded as a disinterested party.  He must have been hurt by the abuse and as such could not act as an impartial arbiter in the matter.  His call for the dismissal of Appellant is thus tainted.  On that basis, I shall set aside the dismissal and remit the matter to Appellant‘s Managing Director for a re-consideration of the appropriate penalty.  Dismissal may be the prescribed penalty but it does not necessarily follow that it is warranted in every case.

Wherefore it is ordered that,

The appeal is hereby allowed;

The dismissal of Appellant by Respondent is set aside;

The matter is remitted to Respondent’s Managing Director for a reconsideration of the appropriate penalty; and

Pending the Managing Director’s decision in paragraph 3, Appellant is deemed to be on suspension without pay and benefits.

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G. MUSARIRI

JUDGE