Charles Chibanda v Zimbabwe Consolidated Diamond Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/51/2023
HARARE, 2023
CASE NO LC/H/51/23
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/51/2023

HARARE,   2023 &			   		  CASE NO LC/H/51/23

2023

In the matter between:-

CHARLES CHIBANDA					APPLICANT

ZIMBABWE CONSOLIDATED DIAMOND 		RESPONDENT

COMPANY

Before the Honourable Kachambwa  J

For the Applicant		Jiti Manhombo (Legal  Practitioner)

For the Respondent		I. Makoni         (Legal Practitioner)

Applicable Laws

S.I. 165 of 1992 [Mining Industry Code of Conduct] Part B Section 4[b] Wilful disobedience  to a lawful order. Rule 19(1) of the Labour Court Rules S.I. 150 0F 2017. Section 92E of the Labour Act Chapter 28:01.

BACKGROUND

The appellant was employed by the Respondent as a diamond cleaner, the Respondent being a diamond miner. The Respondent charged the Appellant with the misconduct of wilful disobedience to a lawful order given by the employer. The order was an order to capture diamond stocks into a system called SAP. The appellant had assisted in the development of the system about a year earlier but was not a user of it. When asked to do the task he responded to say that he required a refresher course. His superior responded to say that he should put that request in writing. Thereafter she went on leave for about 5 months. On return she found that the Appellant had not obeyed the instruction hence the charge. Despite his claim of having forgotten how to do the work he was found guilty it being alleged that he could have sought assistance from the information technology department as well as use the manuals. A decision

of dismissal was imposed. An internal appeal was dismissed. The grounds of appeal on conviction are that the allegations were never substantiated. On the penalty it was that the penalty was extremely harsh.

ANALYSIS

This is a case that could have been dealt with as a stated case right from the beginning. The issue of substantiation does not arise whatsoever. There is only one question that arises. It is whether on the given facts the charge is proved. On a balance of probabilities, it appears so. This is so in view of the fact if the appellant needed a refresher course it was within his stretched arm. As one who had helped in developing the very system it was not asking too much from him to do the task. Incapacity cannot be pleaded. The parties referred to very relevant cases on the subject in this jurisdiction. Matereke v CT Bowring and Associates (Pvt) Ltd 1987 (1) ZLR 206 (S). At pages 211G to 212A the court said that: "......wilful disobedience or wilful misconduct, the words in my view connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree and not trivial-not simply an unconsidered reaction in a moment of excitement. IT must be such disobedience as to be likely to undermine the relationship between the employer and employee, going to the very root of the contract of employment."

Further cases on the subject include Innscor Africa (Pvt) Ltd v Gwatidzo SC 5/2015, Chironda v Swift Transport 1996 (1) ZLR 142 (S) at page 146F, Servcor (Private) Limited v Tarisai Muchenjeri SC74/2017.

Now, coming to issues of appeals it is a rule of our courts that an appeal court must be slow at upsetting the decision of a lower court, It must not upset that decision on the notion that if it was the one deciding it would have decided otherwise, It must only do so if there was a serious misdirection on the facts or if there was a misdirection on the law. This position has been repeated in such cases as Hama v NRZ 1996 (1) ZLR 664 where at 670 C-D the court says that:

“The general rule of law, as regards irrationality, is that an appeal court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.” This position has been consistently repeated in many other cases in different words but amounting to the same position. In Delta Beverages v Sarah Karuwe  SC6/2019 the court said that:

“A court of appeal is in general not at large to interfere with the decision [on issues] of a lower court or tribunal on issues of fact unless it finds that the lower court was guilty of a misdirection which amounts to irrationality.”

On the penalty, this is discretionary and can only be interfered with if the discretion has been abused. That is not the case in the circumstances.

DISPOSITION

There appears to be no need for the court to interfere with the decision appealed. There is no irrationality on the finding of guilty. As for the penalty this is discretionary. Once the employer took a serious view of the act of misconduct we cannot lightly interfere. It cannot be said that this was a minor transgression. In the result the appeal must fail. It is accordingly ordered that:

The appeal be and is hereby dismissed with costs.