Gilbert Magunje v Mountaineers Cricket

IN THE LABOUR COURT OF ZIMBABWE                  JUDGMENT NO. LC/MC/04/2013
HELD AT HARARE ON 04 FEBRUARY, 2013              CASE NO. LC/ MC/78/2011
In the matter between



GILBERT MAGUNJE                              –              Appellant
And

MOUNTAINEERS CRICKET                         –              Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - Gilbert Magunje (Unionist)
For Respondent     - Ruth Mujavayi (Human Resources Officer)


MATANDA-MOYO, L.

      The matter has been set down in terms of rule22 of the Labour Court

rules. The Respondent is alleged to have failed to file a notice of response.

However during questioning of the Respondent it became clear the Respondent

was never served with a notice to file a response. Respondent was only served

with the notice of appeal papers. The dies induciae has not started to run even to

date. However on 30 January 2013 Respondent filed a notice of response and

heads of argument. The papers were served on the Appellant on the same date.

From the above Respondent is not in default.



      I however decided to deal with the matter on the merits after Appellant

conceded that he pleaded guilty to the offences before the disciplinary hearing.

Appellant was dismissed after mitigation. However Appellant submitted that he

was now only appealing against the penalty of dismissal.
                                                      JUDGMENT NO. LC/H/04/2013




      Appellant submitted that although he was convicted of theft, such theft

was committed outside the work premises although it involved a fellow

employee. Appellant submitted that he served Respondent for 8 years with a

clean record. He prayed that this court set aside the penalty of dismissal and

substitute it with a demotion or any other penalty.



      The question of penalty involves the exercise of discretion and an appeal

court is not quick to interfere with an exercise of discretion unless there is proof

of abuse in the exercise of such discretion. Appellant has failed to advance any

meaningful submissions warranting this court to interfere with the penalty of

dismissal.



Accordingly the appeal lacks merit and is dismissed with no order as to costs.




ZCTU– Appellant’s Representative




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