CIMAS Medical Aid Society v Moses Munhenga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/848/14
HARARE ON 4th NOVEMBER, 2014
CASE NO. LC/H/483/11
AND 19 DECEMBER, 2014
JUDGMENT NO. LC/H/848/14
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/848/14

HARARE ON 4th NOVEMBER, 2014			            CASE NO. LC/H/483/11

AND 19th DECEMBER, 2014

In the matter between

CIMAS MEDICAL AID SOCIETY			–	Appellant

And

MOSES MUNHENGA	             			–	Respondent

Before The Honourable R.F. Manyangadze, J.

For Appellant    :	Mr H. Mutasa  (Legal Practitioner)

Respondent        :	In Person

MANYANGADZE, J.

This is an appeal against Honourable Ms L. Chibvongodze’s arbitral award, handed down on 21st July 2011. The award ordered the reinstatement of the Respondent, or payment of damages in lieu of reinstatement.

The brief background to the matter is common cause. The Respondent was employed by the Appellant as a Senior Membership Clerk. The Respondent was charged with misconduct under the Code of Conduct for the Commercial Sector, Part IV, Group IV Offences, Section 3.

“Unsatisfactory work performance” i.e. lack of skill which the employee expressly or by implication holds herself out to possess.”

The Respondent was found guilty and dismissed from employment on 1st June 2010. The dispute went to the National Employment Council Local Joint Committee, the Labour Office, and Arbitration, culminating in the arbitral award appealed against.

The grounds of appeal are as follows:-

The Honourable Arbitrator erred in law when she found that by issuing open ended oral warnings to the Respondent for his underperformance the employer failed to observe substantive fairness.

The Honourable Arbitrator erred in law when she found that the Appellant was not entitled to impose the penalty of dismissal in the circumstances without having considered demoting the Respondent as an appropriate penalty.

This appeal is centred around the penalty of dismissal. The Respondent did not challenge his conviction. The Arbitrator did not interfere with the charge preferred against the Respondent. She did not uphold Respondent’s contention that he should have been charged under a different category of offences, Group 1, instead of Group IV Offences. There being no cross-appeal against that finding, this appeal proceeds on the basis that the Respondent was properly convicted under Part IV, Group IV Offences. Under Section 3 thereof, he was convicted of unsatisfactory work performance, lack of skill which he expressly or by implication held himself out to possess.

The Arbitrator ordered reinstatement, and substituted the penalty of dismissal with that of demotion. The reasoning by the Arbitrator, it seems, was that it was procedurally unfair to impose dismissal as the first penalty. The Arbitrator also reasoned that it was procedurally unfair to issue oral warnings without a standing period i.e. the warnings should have stipulated the period in which they would remain valid.

It was contended on behalf of the Appellant, that there is a limit to the extent to which an employer is obliged to issue warnings. There are exceptional cases, such as where there is no improvement in the performance complained of, and continued engagement of the employee constitutes an unfair burden on the employer. In this regard, the Respondent referred the Court to the case of Kwangwari v CBZ HH-79-03.

An examination of the arbitral award shows that efforts were infact made by the employer, to improve the Respondent’s performance. On page 4 of the award, the Arbitrator clearly recognizes that an investigation was done to establish reasons for the unsatisfactory work performance. The Arbitrator also observed that the Respondent even received counseling on his shortfalls. The picture created by these findings is that the employer bent over backwards in affording the employee an opportunity to improve. It means that disciplinary proceedings were resorted to when improvement was not forth coming.

In these circumstances, it is difficult to appreciate why the employer’s discretion to dismiss was tampered with. There is no finding of a serious misdirection, or any recognizable misdirection at all, to justify the interference. This is particularly so after the Arbitrator found that the employer correctly preferred the charge in question. This charge, according to the letter on allegations of misconduct, dated 31st May 2010, has dismissal as the stipulated penalty.

The employer’s discretion to assess penalty cannot be lightly interfered with. There has to be a serious and recognizable misdirection to justify interference. It is not a question of the Arbitrator, or even this Court, holding a different view on what an appropriate penalty should be.

In this case, there was no justification for setting aside the dismissal penalty and its substitution with another one, be it a warning, fine, transfer or demotion.

In the circumstances, the appeal succeeds and it is ordered as follows:-

The appeal be and is hereby allowed.

The arbitral award of 21st July, 2011 be and is hereby set aside.

The dismissal of the Respondent as determined on 1st June 2010 be and is hereby upheld.

Each party bears its own costs.

Gill, Godlonton and Gerrans – Appellant’s legal practitioners