British American Tobacco Zimbabwe v Trymore Mutasa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENTNO LC/H/123/14
HELD AT HARARE 25TH FEBRUARY 2014
CASE NO
JUDGMENT NO LC/H/123/14
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENTNO LC/H/123/14

HELD AT HARARE 25TH FEBRUARY 2014		CASE NO LC/H/730/13

& 14TH MARCH 2014

In the matter between:-

BRITISH AMERICAN TOBACCO ZIMBABWE			Appellant

And

TRYMORE MUTASA						Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Ms N Mahenga (Legal Practitioner)

Respondent			In person

MURASI, J:

Respondent was employed as a Distribution Representative by Appellant.  He was charged with various counts of misconduct as provided for in the employer’s Code of Conduct.  He pleaded guilty to the charges.  The Disciplinary Committee recommended his dismissal.  Respondent appealed to the Works Council.  The Works Council dismissed Respondent’s appeal and he took the matter up with the National Employment Council (NEC) which constituted the Grievance and Disciplinary Committee (GDC) which body set aside the decision to dismiss him and substituted it with a Final Written Warning valid for twelve months.

Appellant is dissatisfied with the ruling of the GDC and has appealed to this Court.  Appellant submitted in its grounds of appeal that the GDC grossly misdirected itself in holding that Respondent could have acted without knowing the full extent of his actions which finding was not supported by the record.  Further, Appellant averred that the GDC misdirected itself in finding that the mitigatory factors outweighed the aggravating factors.  Appellant stated that the GDC erred in law in setting aside the dismissal penalty after upholding the guilty verdict on three (3) dismissible offences committed by the Respondent.  Respondent in his submissions, stated that he had worked for Appellant for fifteen (15) years and he had committed the offences thinking that he was helping a colleague.  He also admitted that he lied to his superiors at the workplace and was asking for forgiveness.

The Court will examine the Appellant’s grounds of appeal in turn.  The first ground of appeal is that the GDC misdirected itself in holding that the Respondent could have acted without knowing the full extent of his actions which finding is not supported by the record.  An examination of the record shows that the Works Council (hereinafter WC) “considered your (Respondent) insistence that you were not aware why Richard Marimo was asking you to make payment on Bandix account.”  The WC analysed the circumstances in which the payments were made and Respondent’s explanations.  The WC found that it was “highly unlikely” that he would be completely in the dark about these transactions.  Further, the WC noted the various inconsistent statements attributed to the Respondent and that these were “attempts to conceal the truth from the employer.”  The WC thereafter dismissed the appeal and confirmed the dismissal of the Respondent.  The question is, did the GDC take into account what was reflected on the record?  It seems to me that if the GDC had applied its mind to the contents of the record, it would arrived at a different decision.  The record clearly shows that Respondent gave misleading information from the investigations stage right up to his own appeal.  He was not keen to make a clean breast of it.  He was bent on leading his employer up the garden path, so to speak.  These are hardly the actions of a person who did not appreciate the full extent of his actions.  The Court is of the view that the finding of the GDC in this respect was incorrect.

The second ground of appeal is that the GDC misdirected itself both in fact and in law in finding that the mitigatory factors outweighed the aggravating factors.  The main mitigatory factor in favour of the Respondent was his unblemished 15 year record.  The GDC also considered Respondent’s remorsefulness and the circumstances under which the offence was committed.  However, to hold that the mitigatory features outweighed the aggravating features was clearly a misdirection on the part of the GDC.  The GDC had noted that the offence was “serious” and that Respondent was employed in a position of trust.  The GDC did not go further to analyse Respondent’s conduct from the investigations stage to his trial.  This would have shown that the aggravating features far outweighed the mitigatory features.

The last ground of appeal is that the GDC erred in law in setting aside the dismissal penalty after upholding the guilty verdict on three (3) dismissable offences committed by the Respondent.  Respondent’s charges emanated from the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct) Statutory Instrument 322 of 1996.  Under the Heading of Dishonesty, Theft, Fraud and Related matters in Appendix I is found the charges Respondent faced.  For the charge of theft, abetting theft, fraud or embezzlement or extortion or corruption and bribery in paragraph (a), the only penalty prescribed is dismissal.  Under paragraph (b) for wilfully making false reports or false entries on returns, documents or records, the penalty is dismissal.  Lastly, under paragraph (c) for refusing to give evidence, or wilfully making false statements in any investigated relating to company matters, the penalty is also dismissal.  This means that the only penalty that can be meted in these circumstances is dismissal.  This is what is prescribed in the statute.  The general principle governing non-compliance with statutory provisions was stated by Innes CJ in Schierhout v Minister of Justice  1926 AD 99 at p 109:

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force or effect – And the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.”

The GDC had no mandate to substitute the penalty of dismissal with that of a Final Written Warning as this was not provided for in terms of the law.  The GDC therefore erred in this respect.

In the final analysis, the appeal succeeds and the decision of the GDC is set aside and substituted with the following order:

The decision of the Works Council to dismiss the Respondent is hereby upheld and confirmed.

There is no order as to costs.

Mushangwe & Company, Appellant’s Legal Practitioners