Caroline N. Masawi v Women's University in Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 10 SEPTEMBER, 2024 & 17
JUDGMENT NO. LC/H/17/25 CASE NO. LC/H/578/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 10 SEPTEMBER, 2024 & 17

JANUARY 2025

JUDGMENT NO. LC/H/17/25 CASE NO. LC/H/578/24

CAROLINE N. MASAWI	APPELLANT

Versus

WOMEN’S UNIVERSITY IN AFRICA	RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- N.R. Mutasa, Legal Practitioner For the Respondent	- T. Magaya, Legal Practitioner

KUDYA J:

This is an appeal against the decision of the respondent appeals officer who confirmed the guilty verdict and dismissal penalty meted out on the appellant employee following allegations of conduct inconsistent with the contract of employment in contravention of Section 4 of the Model Code. Facts of the matter are that appellant who was in the respondent’s employment as a Senior Registrar- Human Resources was accused of having failed to properly authenticate one Rashirai’s certificates and that led to Rashirai being employed by the respondent on the basis of his fake certificates to the detriment of the respondent. Appellant was charged with misconduct of conduct inconsistent with her employment calling. Disciplinary proceedings concluded that she was guilty of the conduct complained about.

She was thus dismissed from employment. She appealed internally without success. She has now appealed to the Labour Court on the appeal which is the subject of this judgment. Her appeal grounds can be summarized as such:-

Appeals authority erred to confirm the appellant’s guilty verdict and dismissal penalty which were meted out in circumstances where the disciplinary authority had earlier on quashed the disciplinary proceedings on the same facts.

Appeals officer erred to conclude that appellant was liable yet she participated in the recruitment process as a probation officer who was under the direct supervision of Mugwise Head HR who presided over the processes and satisfied herself that the processes had been done properly and that she was the one responsible for Rashirai’s employment.

Appeals officer erred by not considering that appellant had not been properly trained or inducted or given manual guidance on authentication of academic certificates at recruitment of staff. The failure was simply a failure of the institution’s internal control system.

Appeals officer erred by not finding that the disciplinary authority should have disregarded the Vice Chancellor’s dictation of a dismissal penalty yet she was not part of the disciplinary committee.

In the result the appellant prayed that the appeal succeeds and that she be reinstated without loss of salary or benefits or that she be paid damages in place of reinstatement.

In response to the appeal, the respondent first raised points in limine which it however dropped on the hearing date of appeal.

On the merits the respondent maintained that: -

Appeals officer did not err to uphold the guilty verdict and dismissal penalty of 29 November 2022 since the quashed 11 November 2022 proceedings had been dropped and

the merits of the case had not been entertained then. The employer has discretion to correct errors in disciplinary proceedings. The committee that sat on 11 November 2022 did not determine the merits of the matter so was not functus officio when it sat on 29 November 2022.

Appeals officer correctly concluded that appellant failed to properly authenticate the results yet that was one of the primary roles in recruitment processes. Such conduct went to the root of her employment.

Appeals officer correctly concluded that appellant’s probation status notwithstanding she held herself out to be competent in her job and that she could completely discharge the duties of her employment. If anomaly was discovered earlier she could not have been elevated to permanent position.

Appeals officer was correct to uphold the dismissal penalty. Factual findings in the matter dictated the penalty and Vice Chancellor did not dictate the penalty she only communicated the decision in her role as custodian of respondent’s administrative processes.

In the result the respondent prayed that the appeal be dismissed and that the guilty verdict and the dismissal penalty be made to stand. Each of the appeal grounds is discussed below.

The test for appeal is settled. See Nyahondo v Hokonya and others 1997

Ground 1

This ground is more of a review than an appeal ground since it attacks the process leading to the dismissal. Being that as it may it needs to be observed that the employer retains the discretion to regulate its disciplinary processes including conducting denovo proceedings where the justice of a case dictates so. The often-quoted case of Dalry Mine v Banda 1999(1) ZLR 220 states clearly that if procedural irregularities abound such should be put right. In the case at hand since the employer had not entertained the merits of the matter on 11 November 2022 nothing stood in its way to hear the matter afresh properly on the merits as it did on 29 November 2022. There was nothing remiss in that which can found an appeal. The appeal ground is without merit so should fail.

Ground 2

Probation status of employee only shows that the employee is in a training phase of the job. See Rainbow Tourism Group vs Nkomo SC 47 -15. It does not mean that one does not possess the necessary attributes to do her job otherwise there would be no need to engage the same. That she was understudying her supervisor or that her superior was also liable does not exculpate her conduct. See section 56(1) on equal protection of the law. The ground also being without merit should fail.

Ground 3

This ground is in sync with ground two. The sentiments expressed in ground two apply here with equal force. It needs also be stated that the law is clear that when one hires out their labor they expressly and impliedly hold out to the employer that they would be able to discharge the duties that they are hired for. They also have a duty to advance employers’ interests. See Kujinga vs Old Mutual SC 59-23 It would be a fallacy to say that an HR person would argue that it is not incumbent in her contract to satisfy herself of the compete… of the employees intended to be engaged by the employer. Accepting such an argument would be tantamount to saying that there is thus no need for the HR position. It is clear that aside manuals ,the appellant fell short of her duty’s calling and has only herself to blame for her job loss.

Ground 4

It is settled that penalty is at the discretion of the employer. See Circle Cement v Nyawasha SC10- 03 and Innscor Africa v Chimoto SC 6-12. In the case at hand whether the Vice Chancellor gave her opinion or not on penalty the simple question to ask on penalty is whether the conduct goes to the root of the employment contract . If it did arguments about sentiments being expressed by the Vice Chancellor or not do not detract from the suitability of the penalty that was meted out. The ground is also without merit and should fail.

In the ultimate all appeal grounds go without merit and should fail.

IT IS ORDER THAT:

1. All appeal grounds being without merit in their entirety be and are hereby dismissed with costs.

Costa and Madzonga- Appellant legal practitioner

Matsikidze Attorney- Respondent legal practitioner