Enfield T. Nyambawaro v Minister of Home Affairs and Cultural Heritage N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/227/23
HARARE, 20 JULY 2023
CASE NO LC/H/340/23
2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 20 JULY 2023 & 2023

JUDGMENT NO LC/H/227/23

CASE NO LC/H/340/23

In the matter between:-

ENFIELD T. NYAMBAWARO

MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O.

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant

For the Respondent

Tinashe M. Zenda (Legal Practitioner)

A. Zikiti (Civil Division)

KUDYA, J:

This is an appeal against the dismissal penalty which was meted out on the appellant employee following allegations of misconduct.

Background to the matter is that appellant was charged with wilful disobedience to a lawful order. The order was that appellant was not supposed to clear immigrants other than drivers or those who she would have been authorised by her Superior to clear. This was all in a bid to contain the Covid pandemic which was there then. Contrary to instruction appellant cleared 2 South African Nationals who were not truck drivers and who had not been cleared by her superior as per the standing instruction. During the disciplinary proceedings the appellant exercised her right to silence. Evidence led at that hearing established that appellant had breached the instruction. To add on to that the disciplinary committee had been favoured with affidavits from the South African Nationals which showed that money had passed hands to facilitate their clearance.	Ultimately the appellant was found guilty and dismissed from employment. She is unhappy with the dismissal penalty hence the instant appeal.

2 LC/H/227/23

LC/H/340/23

It is settled that the appellate court can only interfere with the exercise of the discretion of a trier of fact if it can be established that such discretion was exercised irrationally or capriciously. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S).

It is equally settled that the penalty is in the discretion of the employer See Innscor Africa v Chimoto SC-6-12. In the case at hand the appellant contends that the sentencing discretion was exercised irrationally for the reason that it was used contrary to the guideline penalty for such an infraction which was a written warning.

Appellant contends that if the employer viewed the infraction seriously and if it wanted to consider the issues of money passing hands or the severity of the covid pandemic it should then have preferred serious charges consistent with that. She therefore reasoned that since the employer chose the lesser charge of wilful disobedience it meant it had to contend with the lesser penalty too.

It is important to observe that a guideline is a mere guideline as the names says it all. Exerciseofsuch should be within the context of the facts of a particular case. Appellantintends to draw parallels of her case with the cases cited by the respondent to support the penalty. The court is however of the view that of paramount importance is the fact that the employer is still reposed with the penalising powers depending on how it views the impact of the misconduct on its relation with the employee. See Circle Cement V Nyawasha SC-10-03 in the case at hand it is granted that the offence of wilful disobedience with its attendant guideline penalty of a warning would seem to suggest that this is an infraction that is not viewed as serious as to attract a dismissal penalty. Regard needs however to be had to the nature of the instruction and the mischief behind the instruction before one can conclude on penalty. In the case at hand it is apparent that the instruction was made to contain the COVID pandemic which posed a serious threat to the wellbeing of the citizens. In the court’s view such went.to the root of the employment contract. It was the very function why appellant was employed by the respondent. Appellant’s breach was thus serious to that extent. Granted she was not charged with bribery or fraud but the evidence of the affidavits tendered by the South Africans clearly speaking to the fact that the clearance was done under dodgy circumstances. The employer can thus not be blamed to conclude that it has lost trust in the appellant by what she did. All the facts of the matter speak to conduct which is clearly in breach of the very fabric of employment. To that extent the court is persuaded that there was nothing remiss about the employer imposing the dismissal penalty. In the ultimate the court is satisfied that the employer exercised its sentencing discretion properly. The appeal should therefore fail.

3 LC/H/227/23

LC/H/340/23

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed with costs.

Hungwe and Partners, Applicant’s Legal Practitioners