FAVCO (Pvt) Ltd v Tawanda Musvaire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/361/2016
HARARE, 18 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/361/2016

HARARE, 18 FEBRUARY 2016	  		               CASE NO. LC/H/488/15

AND 10 JUNE 2016

In the matter between:-

FAVCO (PVT) LTD						Appellant

And

TAWANDA MUSVAIRE					Respondent

Before Honourable R. Manyangadze, J

For Appellant 		Mr. G. Jakuosi (Legal Practitioner)

For Respondent		Mr W. Madzimbamuto (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 1 April 2015 which set aside the dismissal of the respondent from appellant’s employment, and substituted it with a final written warning.

The facts constituting the background to this matter are common cause.  The respondent was employed by the appellant as a Despatch and Logistics Controller.  In that capacity, he was responsible for the despatch of goods to various customers.

On 6 July 2013, an order was despatched to one of the appellant’s customers, Mohammed Mussa.  The order was returned, as Mohammed Mussa was not receiving local orders that day.  This was on a Saturday.  The respondent was off duty.  When the respondent assumed duty on Sunday, 7 July 2013, the returned order was handed over to him, so that it could be re-routed to Muhommed Mussa. On Monday, 8 July, the order was re-routed for delivery to Mohammed Mussa, and was to leave the premises together with deliveries to various other customers, scheduled for that day.

The order in question never reached its destination, Mohammed Mussa.  It turned out that the invoice relating to that order had been erroneously filed as proof of delivery by the filing clerk.  It did not appear on the Missing Invoices Report released by the Finance Department.  The effect of all this was that the order was indicated as having been despatched, when in fact it had not been despatched.  The goods were never delivered to the customer.

For failing to effectively supervise the activities in his department and follow up the Mohammed Mussa consignment, the respondent was charged with misconduct.  The charge was in terms of Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006.

“Any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract.”

A disciplinary hearing convened by the appellant found the respondent guilty and imposed a penalty of dismissal.  His appeal to an internal appeal authority was dismissed on 15 October 2013.  The matter was referred to a Labour Officer and subsequently to an arbitrator.  This led to the arbitral award which is the subject of this appeal.

The grounds of appeal are stated as;

“1	Having upheld the Respondent’s conviction, the Honourable Arbitrator erred at law and seriously misdirected himself on the facts by interfering with the penalty meted out by the employer in the absence of a serious misdirection in the employer’s choice of penalty.

2.	The Honourable Arbitrator erred at law in pre-quantifying damages in the form of back pay from the date of dismissal to the date of award without subjecting same to whether or not the Respondent could have successfully mitigated such a loss.”

It is clear this appeal arises from the penalty imposed by the arbitrator, in substitution of that imposed by the respondent’s disciplinary authority.

The appellant; in the main, argues that it was improper for the arbitrator to interfere with the penalty meted out by the  disciplinary tribunal.  It was an exercise of discretion by that tribunal, which should not be easily interfered with.  In this regard, the appellant referred to the case of Tenesi vs Public Service Commission 1996 (1) ZLR 196 wherein the Court cited with approval remarks in the South African case of Oskill Properties vs Chairman Rent Control Board 1985 (2) SA 234, at 37;

“It should be emphasized that a court of law will not interfere with the exercise of its discretion by a quasi-judicial body merely on grounds that it was unreasonable.  To warrant interference on grounds of unreasonableness, the unreasonableness must be so gross that something else can be inferred from it.  In reviewing the proceedings of a statutory or other body lawfully vested with a discretion, the jurisdiction of a court of law is limited to the question whether that body in fact exercised its discretion.  It has no jurisdiction to enquire into the correctness of the conclusion arrived at by it on the evidence before it.  See Schoch NO & Ors v Bhettay & Ors 1974 (4) SA 860 (A) at 866 E-F.”

The remarks in the case cited by the appellant, it must be noted, were dealing with the review of proceedings by a Rent Control Board. However, the principle enunciated is equally applicable to disciplinary penalties.  It is that an appellate court will not lightly interfere with the exercise of discretion by a lower court, unless it can be demonstrated there was serious misdirection or gross unreasonableness on the part of the lower tribunal.

With regard to disciplinary penalties, the case of Mashonaland Turf Club v Mutangadura SC 5/12 is more specific.  The Supreme Court stated; at pages 3-4 of the cyclostyled judgment;

“In the exercise of their powers in terms of S12B(4) of the Labour Act,  the Labour Court and Arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it.  In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

The position was again emphasised in Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12. MALABA DCJ stated:

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.  In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator.  The Labour Court merely substituted its own discretion for that of the arbitrator.”

The Supreme Court castigated both the Arbitral tribunal and the Labour Court for interfering with the employer’s discretion to impose what it considered an appropriate penalty.  It must be noted that Letron Chimoto had not even stolen the pizza in question, valued at only US $4,00.  He had disregarded the procedures relating to its production, which created an opportunity for theft.  The employer viewed that conduct seriously, and imposed dismissal.  The arbitrator and the Labour Court were overly concerned with the amount of prejudice to the company, and the pressure the employee worked under. These were considered immaterial, where the employer regarded the conduct as one that goes to the roof of the employment relationship.

Given this clear and consistent position in the authorities, I agree with the submission in paragraph 12, of the appellant’s heads of argument that;

“The Appellant (sic) has a heavy onus on him to demonstrate that the penalty meted to him is grossly unreasonable, capricious or mala fide.”

The respondent has been unable to demonstrate that the sentence is so grossly unreasonable it warrants interference.

A reading of respondent’s heads of argument, in which the despatch procedures are detailed, seems like an attack on the conviction.  He is effectively arguing that he was not responsible for the failed delivery, but other departments were.  If the respondent was unhappy with his conviction, he should have filed a cross-appeal on this aspect, rather than bring it out in submissions against penalty.  What this means is that there are no meaningful submissions on the appropriateness of the penalty.  In my view, it was a wrong approach altogether by the respondent, to make submissions that appear to take the court back to the question of whether or not respondent should be held liable.  As indicated, he should have noted a cross-appeal on the question of liability, if he felt he was wrongly convicted of the misconduct.

The appellant clearly viewed the misconduct as serious.  In its submissions to the arbitrator, it pointed out the effect on the customer’s trust in the appellant, and the effect on the availability of its products on the customer’s shelves.  The arbitrator summarized these submissions as follows:

“The respondent argued that the dollar value of $1 831,95 trivialised by the claimant, should not cloud the effects of this undelivered order to the customer, which include the loss of trust or faith in FAVCO by the customer and the impact of availability of FAVCO products on the MM shelves.”

When dismissing the respondent’s appeal, the appellant’s appeal authority noted,

“In your own words, your role was/is to ensure the sale is concluded.  This particular sale was not concluded.  I am not convinced that you did all that was expected of you or all that you should have done “to conclude the sale”.  Instead you attempt at several occasions to shift the responsibility away from yourself.  This is not expected of a person in a supervisory position.”

In the circumstances, the court finds no basis for interfering with the penalty imposed by the appellant’s disciplinary tribunal. The respondent was properly and lawfully dismissed.

Having ruled that the respondent, was properly dismissed, the arbitral award must be set aside and the decision of the respondent’s Acting Manager, as Appeals Officer, be upheld.  Consequently, it is unnecessary to delve into the second ground of appeal.  It has been rendered unnecessary by the upholding of the first ground of appeal.

It is accordingly ordered that;

The appeal be and is hereby allowed.

The arbitral award handed down by Honourable J. Connick on 1 April 2015 be and is hereby set aside.

The determination by the appellant’s Acting Manager, Mr L. Connick, as Appeal Officer, on 15 October 2015, be and is hereby upheld.

The respondent shall bear the appellant’s costs.

Dube, Manikai & Hwacha, Appellant’s legal practitioners

Nyikadzino, Simango & Partners, respondent’s legal practitioners