British American Tobacco Zimbabwe v William Musadogera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/405/2016
HARARE, 17 MAY 2016 &
CASE NO LC/H/663/2014
8 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/405/2016

HARARE, 17 MAY 2016 &					         CASE NO LC/H/663/2014

8 JULY 2016

In the matter between

BRITISH AMERICAN TOBACCO ZIMBABWE			APPELLANT

Versus

WILLIAM MUSADOGERA						RESPONDENT

Before the Honourable F C Maxwell J

For the Appellant	Mr G Sithole  (Legal Practitioner)

For the Respondent	Ms S Nyagura  (Legal Practitioner)

MAXWELL J:

This is an appeal against the decision of the National Employment Council for the Tobacco Industry Grievance and Disciplinary Committee (NEC GDC) to set aside the penalty of dismissal that had been meted on the respondent by the Works Council and substituting it with a Final Written Warning.

The respondent, who was an employee of the appellant, was charged with acts of misconduct of insubordination where it undermines the authority of management, alternatively refusal to obey lawful instructions given by a superior. The respondent was found guilty of the alternative charge and was dismissed from employment. The respondent appealed to the works council which upheld the decision of the disciplinary authority. The respondent subsequently appealed to the NEC GDC which upheld the verdict of guilty but substituted the sentence of dismissal with that of a final written warning.

Aggrieved, the appellant noted an appeal on the following grounds:

The Grievance and Disciplinary Committee (GDC) grossly misdirected itself both in fact and law in setting aside the dismissal penalty after upholding the guilty verdict on a dismissible offence committed by the respondent.

The Grievance and Disciplinary Committee grossly misdirected itself in law and in the facts in finding that the mitigatory factors outweigh the aggravating factors in circumstances where the facts do not justify such a finding.

The Grievance and Disciplinary Committee erred and misdirected itself both at law and in fact that section 12 B (4) of the Labour Act [Chapter 28:01] applied to case where the facts show that it does not apply.

The appellant prayed for the setting aside and substitution of the decision of the GDC and the confirmation of the Works Council decision with costs. The respondent supported the decision of the GDC on the basis that the GDC made a finding that the penalty was too severe as the instruction was not closely related to the actual duties of the employee. The respondent submitted that the penalty was set aside after consideration of the mitigating circumstances. The respondent disputed that the GDC misdirected itself in law and in fact.

Whether or not the GDC was justified in interfering with the penalty of dismissal

It is trite that the penalty to be meted on a particular case is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of the particular case dictate otherwise. See Malimanji v CABS 2007 (2) ZLR 77. It was submitted for the appellant that although prior to the misconduct the respondent had a lengthy and clean record, the appellant took a serious view of the respondent’s refusal to follow orders and could not continue to work with him. The Supreme Court stated that:

“ Once the employer had 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 will not arise.”

Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60-03.

It has not been shown that the appellant acted unreasonably in taking a serious view of the misconduct. The GDC actually states in its finding that subordinates are expected to obey lawful instructions given by their superiors. It is trite that in the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment. See Mashonaland Turf Club v Mutangadura SC 5-12. I am not persuaded that the interference with the employer’s discretion was warranted in this case. The first ground of appeal therefore has merit.

Whether or not mitigating factors justify a lenient penalty

The record of proceedings clearly shows that the respondent was given an opportunity to address the disciplinary committee in mitigation. It is also clear that mitigation was considered at the appeal hearing. However in the exercise of discretion, dismissal was held to be appropriate. The GDC gives the reason for interfering with the penalty as that the committee members were of the view that the penalty prescribed by the Code is the maximum penalty and an adjudicating authority may impose a lesser penalty after considering mitigating and aggravating circumstances. It also referred to section 12 B (4) of the Labour Act [Chapter 28:01] which provides for consideration of mitigation of an act of misconduct and other justified disciplinary action other than dismissal. The outcome of the disciplinary hearing clearly advised the respondent that:

“The panel took into consideration the factors raised in mitigation, as well as the aggravating factors in this matter. Based on these, the panel found the factors in aggravation to far outweigh those in mitigation….”.

This is the decision that was confirmed by the Works Council. The GDC did not point out any misdirection on that finding. In Barros & Anor v Chimphonda 1999 (1) ZLR 58 it was stated that for an appellate court to interfere with the discretion of the tribunal a quo, it is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course. It was further stated that it must appear that some error has been made in the exercise of the discretion. In casu no error has been pointed out and I find no justification for the interference with discretion.

In any event, the mitigating factor in issue seems to be the fact that the respondent had served for long with a clear record. In ZB Financial Holdings v Maureen Manyarara SC 3-2012 it was held that the reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.

There is merit therefore in the second ground of appeal and it succeeds.

Applicability or otherwise of section 12B (4) of the Labour Act [Chapter 28:01]

The appellant is wrong to state that the facts of this case show that the said section does not apply. It is standard procedure that in any disciplinary hearing mitigation is considered. In considering mitigation, the adjudicating authority will be assessing the appropriate penalty in each case. The section therefore is applicable even though its applicability does not mean that the result must be interference with the penalty of dismissal. It is trite that each case is considered on its facts. In casu there is case authority justifying the position taken by the employer and evidence that the employer had considered mitigation In my view therefore though the GDC held section 12 B (4) to be applicable, the conclusion it reached was wrong. The section can be applied but still the penalty not be interfered with, especially in circumstances as in casu where no new facts were added in mitigation. The submission in the appellant’s heads of argument accurately captures this. On paragraph 5.6 it is stated that “Thus section 12B (4) cannot justify setting aside the dismissal penalty as was done by the GDC.”

Resultantly the appeal succeeds and the following order is appropriate:

The appeal be and is hereby upheld.

The decision of the Grievance and Disciplinary Committee of the National Employment Counsel for the Tobacco Industry be and is hereby set aside.

The decision of the Works Council dismissing the respondent be and is hereby confirmed.

Mawire J T & Associates, appellant’s legal practitioner

Matsikidze & Muchehe, respondent’s legal practitioners