Braeside Spar v Sharon Siriva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/98/2021
HARARE, 10 MARCH, 2021
CASE NO. LC/H/542/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/98/2021

HARARE, 10 MARCH, 2021		    	       CASE NO. LC/H/542/13

AND 16 JULY 2021

In the matter between:-

BRAESIDE SPAR									Appellant

Versus

SHARON SIRIVA									Respondent

Before The Honorable L. Hove, Judge:

For Appellant:				Mr A. Chimhofu (Matsikidze Attorneys)

For Respondent:	Mr T. D. Tsikadope (Mugombedza & Mashingi Legal Practitioners)

HOVE J:

This is an appeal by the employer (appellant) against a decision in favour of the respondent.

The brief facts are that the respondent was suspended from employment on 29 October 2012. She was thereafter charged with an act of misconduct and was found guilty. The disciplinary committee recommended after hearing the matter that the respondent be given a final written warning. The employer ordered that she be dismissed.

She appealed to the local joint committee which reversed the decision to dismiss her. The employer appealed against the decision to the negotiating committee which also upheld the decision of the local joint committee. The Labour court dismissed the employer’s appeal. The matter was appealed to the Supreme court which remitted the matter back to the Labour court to hear the matter de novo.

The grounds of appeal are briefly that the negotiating committee grossly erred and misdirected itself;

1)	 In dismissing the employer’s appeal when the respondent had admitted that she committed the offence and further that efforts to correct her had been unfruitful.

2)	In failing to find that the appellant had admitted her bad attitude towards customers and she had been previously warned but had failed to correct her attitude.

3)	In failing to find that there was overwhelming evidence that the offence had been committed.

4)	In failing to hold that the penalty of dismissal was warranted as the act of misconduct went to the root of the employment contract.

5)	The decision appealed against is grossly unreasonable in view of the fact that the respondent was sitting on several verbal warnings.

The record does show that the appellant had admitted that she had committed the acts of misconduct.

The appellant’s representative argued that the fact that she had admitted and the record showed that the admission was not retracted should have settled the matter. Further it was argued on behalf of the appellant that at the time the negotiating committee heard the matter, it ought to have been informed by the record that the offence had been committed. The respondent was bound by her admission. This factual finding by the first hearing body should in law not be interfered with by any appellant tribunal.

The negotiating committee in its decision stated that the appellant had failed to prove its case on the basis that no work standards, rules or guidelines of the manner in which the respondent was supposed to work had not been produced. The negotiating committee come to the conclusion that the appellant had failed to prove its allegations of unsatisfactory work performance. In other words, the negotiating committee made a factual finding that the offence had not been proved.

This was a misdirection. The offence had been admitted. Mr Chimhofu’s argument that when an admission is made, admitting the offence, then its an established fact and an appellant body cannot interfere with the factual finding is a sound legal principle.

The effect of an admission is that it becomes unnecessary for the other party to adduce evidence to prove the admitted fact. See in this regard the case of DD Transport (Pvt) Ltd v Abbott 1988 (2) ZLR 92.

The initial disciplinary committee having established that the offence had been committed through the respondent’s admission, it was no longer open to an appellate tribunal to interfere with such findings unless the finding could be found to be grossly unreasonable. The Supreme court held in the case of ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S) that;

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable”.

In casu, the facts were admitted, it cannot thus be argued that there was gross unreasonableness on the part of the initial hearing committee.

The respondent’s representative actually submitted that the respondent had  admitted to lacking skill. He submitted however that the reasoning of the negotiating committee was that the decision to dismiss was without basis, it was harsh and punitive. It is admitted that the respondent had admitted to lacking the required customer skill.

To the extent that the negotiating committee, in its decision found that the offence had not been proved, erred and misdirected itself and it is found that grounds of appeal number 1, 2, 3, and 5 have merit.

Ground of appeal number 4 is essentially challenging the decision to set aside the dismissal penalty and to reinstate the respondent.

The respondent’s representative argued that the employer had failed to help the respondent to perform better, in other words to improve her customer handling skills. It was argued that the decision to dismiss was therefore unfair. It was argued that the Supreme court had held in the case of Quest Motors v Nyamakura 2000 (2) ZLR 84 (H) that an employer could not dismiss an employee for unsatisfactory work performance without giving her an opportunity to improve.

It was further argued that the employer went against the disciplinary committee’s recommendations to impose a less harsh penalty of final written warning.

Page 37 of the record shows that the recommended penalty by the hearing committee was a final written warning. The employer however exercised its discretion in favour of the penalty of dismissal.

The employer is not necessarily bound by recommendations made. It can in the exercise of its discretion impose a lesser or a harsher penalty.

The courts have made it clear that the question of which penalty to impose is one that is in the employer’s discretion and once an employer makes a finding that the offence goes to the root of the contract, it would be within its rights to impose a dismissal penalty.

Several decisions of the Supreme Court have held that where the misconduct goes to the root of the contract, the employer is entitled to dismiss and an appellate court or tribunal will not interfere with the exercise of discretion by the employer unless there has been a misdirection in the exercise of such discretion. See Mashonaland Turf Club v Mutangadura SC 5/12; Tregers Plastics (Pvt) Ltd Woodreck v Sibanda and anor SC 22/12.

In the result, the appeal succeeds. The decision of the negotiating committee is set aside. The decision of the initial disciplinary committee is confirmed.

Matsikidze & Mucheche	, Appellant’s Legal Practitioners

Mugomeza & Machindu, Respondent’s Legal Practitioners