Dickson Machipanda v Zimbabwe Electricity & Distribution Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/147/16
HELD AT HARARE 5 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/147/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/147/16

HELD AT HARARE 5 FEBRUARY 2016				CASE NO LC/H/251/15

& 18 MARCH 2016

In the matter between:

DICKSON MACHIPANDA						Appellant

And

ZIMBABWE ELECTRICITY & DISTRIBUTION COMPANY		Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr K Masasire (Legal Practitioner)

For Respondent		Mr M Baera (Legal Practitioner)

MAXWELL, J:

This is an appeal against the decision of the respondent’s Appeals Committee to confirm conviction and the penalty of dismissal of Appellant.

Appellant was employed as a meter reader stationed at Wyne Street, Harare.  He was charged and convicted of corruption in terms of section 7 (1) (K) (ii) of the NEC for the Energy Industry code As well as disorderly or objectionable behaviour in terms of section 7 (1) (e) (viii) of the same code.  He was dismissed from employment as a result.  Aggrieved, appellant noted an appeal to the Appeals Committee.  The appeal was dismissed leading to the appellant approaching this court on the following grounds.

He committee acquo  (sic) erred and misdirected on a point of law by endorsing the decision of the disciplinary hearing committee when the offence levelled against the appellant was never proved even if he was absent from the hearing.

The committee acquo (sic) erred on a point of fact which led to a misdirection of point of law in making a finding that appellant was guilty of the two offences as category D offences without any justification for that when in fact the offences and proved facts do not fall in category D of the offence in term (sic) of the employment code.

The committee acquo (sic) erred and misdirected itself in failing to consider that the penalty of dismissal was so harm (sic) and instil a sense of shock  to the appellant.

Appellant prayed for the decision of the Appeals and Disciplinary Committee to be set aside and that he be reinstated without any loss of salary and benefits or alternatively payment of damages in lieu of reinstatement.

Respondent stated that the Appeals Committee rightfully at law upheld the decision of the Disciplinary Committee in that the evidence that was before the committee was sufficient to convict the Appellant in the circumstances.  Respondent also reiterated that the offences for which the appellant was charged are clearly constituted and defined in category D Offences in the Employment Code of Conduct, and that the penalty is clearly defined therein.  Respondent submitted that the appeal is devoid of merit and prayed for its dismissal with costs.

The first ground of appeal alleges that the offence levelled against the appellant was never proved.  In heads of argument appellant went on to submit on the fact that the offence should have been proved beyond a reasonable doubt.  Appellant’s approach is erroneous.  A look at the grounds of appeal before the Appeals Committee indicates that that issue was not raised on the appeal a quo.  In the circumstances  the allegation that the offence levelled against the appellant was never proved is not properly before me, and cannot be the basis for setting aside the decision of the Appeals Committee.  See C Kambuzuma & Twenty Two Others v The Athol Evans Hospital Home Complex SC 118/04.  James Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04.

The first ground of appeal therefore cannot succeed.  The second ground of appeal criticises the committee for making a finding that appellant was guilty of the two offences as category D offences without any justification for that when in fact the offences and proved facts do not fall into category D of the offences in terms of the employment code.  Again an examination of the grounds of appeal before the Appeals Committee shows that this issue was not raised on the appeal a quo. As stated above it is improperly before this court and cannot be the basis of setting aside the decision of the Appeals Committee.  The second ground of appeal suffers the same fate as the first.

The third ground of appeal challenges the penalty of dismissal meted on appellant.  Whilst this is a valid ground of appeal before this court, the justification thereof in the heads of argument is based on issues that are not properly before this court.  Appellant argues that the respondent failed to exercise its discretion rationally and was unjustified as the offences were never proved at all against him.  The basis of the attack on the penalty is therefore faulty and cannot succeed.  In any event, it is a settled principle of law that the meting out a penalty is the prerogative of the employer.  See Malimanji v CABS 2007 (2) ZLR 77.  The court can only interfere with a penalty if it is shown that it was motivated by malice, bias or that it is a demonstration of a clear abuse of discretion.  See also Mashonaland Turf Club v Mutangadura SC 125/04.  The third ground of appeal therefore has no merit and cannot succeed.

Consequently I order as follows;

The appeal be and is hereby dismissed with costs for lack of merit.

K Masasire Legal Practitioners, appellant’s legal practitioners

Baera & Company, respondent’s legal practitioners