Elias Mavhura v Frazer Alexander Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/709/2014
HARARE, 16 JUNE 2014 & CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/709/2014

HARARE, 16 JUNE 2014 &			              CASE NO LC/H/30/2013

24 OCTOBER 2014

In the matter between

ELIAS MAVHURA							     APPELLANT

Versus

FRAZER ALEXANDER ZIMBABWE				     RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Appellant	         T Biti  (Legal Practitioner)

For the Respondent	T Chifashu (HR Manager)

KUDYA J:

This is an appeal against the decision of the respondent’s appeals officer who confirmed the dismissal of the appellant employee in a case where the employee had been charged with gross incompetency and inefficiency at work. Facts of the case are that the appellant who was in the respondent’s employ was charged with gross incompetency and inefficiency in a case where he was found to be absent from his workstation for a period of time. He had however engaged a procedure called “by pass” which was a situation where he had to redirect the flow of the waste at the dam tailings site to discharge same through an unusual channel for the period he was away.

The respondent took it that the appellant’s absence and redirection of the waste was detrimental to the operations. This was after the contractor had made a report that there was such a by-pass and that there was no one attending at the tailings thus creating risk from the by-pass which had been done by the appellant. A hearing was conducted and the appellant was found guilty and consequently dismissed from employment. Aggrieved by his dismissal the appellant appealed internally which appeal was unsuccessful.

It is the failure of that appeal which led the appellant to the Labour Court where he filed the appeal which is the subject matter of the instant judgment. His grounds of appeal as they appear on page 3 of the record were as follows:

“1.	Penalty not commensurate with breach.

2.	The appellant was within work trying to change his safety lamp.”

In response to the appeal the respondent relied on a document styled finding of an appeal hearing and hearing verdict.

From these documents it was apparent that the appellant’s guilt and dismissal was confirmed on the basis that he had left his workstation unattended without notifying his team mates or supervisors and when his seniors came he could not attend to them as he was absent. Further to that it was said that the appellant’s conduct could lead to dam failure (See page 8 of the record). On page 9 the respondent concluded that dismissal was befitting because the appellant’s conduct caused mistrust between it and the contractor.

Among other points the following points were said to have been noted by the site manager. See page 9:

That the appellant left the work area for a very long time posing a great threat to the operations.

The appellant did not communicate with colleagues to look after the area or at least to notify his supervisors yet he appreciated the risks associated with his job.

The appellant claimed that he had no training yet his appointment letter and documents pertaining to his attendances at training sessions showed that indeed he had been so trained.

Upon taking over the shift the appellant appreciated the risk involved but neglected his duty thus putting the operations at risk by his conduct.

The appellant put the dam and the contract at risk as stated by the contractor’s letter and from statements by the pump attendant and plant operator.

Appeals body went on to indicate that after its consultation with management and per charges laid against the appellant the verdict was that the appellant was indeed guilty of gross incompetence and inefficiency in the performance of his duties.

A reading of the grounds of appeal and the documents referred to as the response to the same by the respondent show that essentially two issues were at stake, that is, whether the penalty matched the offence and taking into account the fact that the appellant was within the work place whether it can be said that he committed the alleged offence.

It is noteworthy that on the date of the hearing and in its heads of argument the appellant went into greater detail that the procedural component of the disciplinary hearing lacked, in particular that the wrong charge was preferred if facts on record were anything to go by. Further that, the presiding officer was biased as demonstrated by his question answer exchange with the appellant and where the record was silent on the evidence confirming exactly how the appellant had committed the alleged infraction.

It is worth noting that when all these submissions were made the appellant’s counsel had not made any application to amend the appeal grounds which were filed by the appellant at the time that he was represented by a unionist. The law is clear that where a party wants to attack the process leading to the decision such an attack can only be by way of review. That approach was not adopted in this matter and to that extent the submissions on the procedural niceties of the matter were therefore of no momentum/moment in this appeal. The court consequently concluded that since these submissions were improperly before it, it thus had no reason to make any findings on them. In the result all that was left for the court to decide on were the two grounds originally set out by the appellant.

A reading of these two grounds in particular the ground on sufficiency of evidence where the appellant claims that he was within the premises is clearly a factual point which is not appealable unless it can be demonstrated that the findings made in its respect were so grossly unreasonable that no court or body acting judiciously could arrive at the same conclusion.

As regards the penalty, the important point to be decided is whether the penalty can be said to have been out of step with penalties to be imposed in a case which occurred in the circumstances as those presented in the instant case.

The law on appeals of this nature is very clear that the appeal court can only interfere with the discretion of the tribunal below it can be said that the said tribunal exercised its discretion injudiciously (See case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC).

It is therefore not the court’s duty to substitute its discretion for that of the lower tribunal.

As regards penalty the law is clear that where the employer takes a serious view of the infraction complained of it is within its powers to mete out a penalty even that of dismissal. (See case of Malimanji v CABS 2007 (2) ZLR 77 (S). Each of the grounds will be addressed in turn below. For clarity of record the sequence of the grounds would be changed so that the penalty ground would be addressed last.

Ground 2

In respect of this ground it was submitted that the appellant was only away for a minimal thirty minutes such that it could not be said that the charge of gross incompetency and inefficiency can be said to have suited his facts.

It is however worth noting that all that is on record is the appellant’s word against that of the employer that he was away for in excess or about two hours that is from 7 pm to 9 pm. It is also worth noting that the main argument advanced by the employer was that the nature of the operations which the appellant was employed to undertake posed great risk to the environment and structures like dams etc. to the extent that even a brief absence from his work station could cause untold damage.

The respondent also argued that whilst by passes can be done in certain circumstances it needed to be done only in exceptional cases and only with the concurrence or blessing of the supervisors. The major difficulty besetting this aspect is that as earlier stated no cogent evidence was led to support the argument that the appellant was away for a very long period.

Besides even the evidence led at the appeal from the then presiding officer in the tribunal at the workplace could not cure the defect about the paucity of the evidence in that regard. A reading of the decision arrived at on the matter speaks volumes of it not having been arrived at on the basis of the evidence on the matter but rather because of the management discussion and the complaint which had come from the contracting company. It is therefore clear that the guilt finding can not be sanctioned in these circumstances. This ground being with merit therefore succeeds.

Ground 1

As regards this ground it is without doubt that penalty is the preserve of the employer but it should be done in a fashion which suits both the accused and the accuser. See Cabs Holdings v Chikwavaira SC-73-99. Being the legal position as it may, it is clear from the ruling on ground 2 of appeal discussed above that the guilty verdict was not in order. To that extent any extensive discussion about the propriety of the penalty is thus rendered academic. The court will thus not engage in such an academic exercise as it serves no meaningful purpose. In the result this ground is also allowed.

IT IS ORDERED THAT:

Appeal being merited it be and hereby is allowed with costs. The appellant’s dismissal is set aside and in its place the respondent is ordered to reinstate him to his original position with full pay and benefits alternatively that the respondent pays him damages in place of reinstatement in an amount to be agreed upon by the parties or to be quantified by the court on application by either party.

Tendai Biti Law, appellant’s legal practitioners