Graphtec Communication v Nedson Balaka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/782/2014
HARARE, 04 & 21 NOVEMBER 2014
CASE NO. [MISSING]
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/782/2014

HARARE, 04 & 21 NOVEMBER 2014			     CASE NO. LC/H/24/14

In the matter between:-

GRAPHTEC COMMUNICATION					Appellant

And

NEDSON BALAKA							Respondent

Before Honourable R. Manyangadze, J:

For Appellant		-	M. Kamdefwere (Legal Practitioner)

For Respondent		-	N. Mangidza (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the National Employment Council for the Printing and Newspaper Industry Appeals Committee. (Appeals Committee).

The Appeals Committee set aside the dismissal of the respondent that had been imposed by the appellant’s Disciplinary Committee.  The Disciplinary Committee had found the respondent guilty of misconduct in terms of the Printing, Packaging and Newspaper Industry Code of Conduct.  The charge was one of Theft/Fraud, the particulars of which were that he carried out two private jobs which were not recorded in the company’s official record, to the prejudice of the company.

The Appeals Committee set aside the dismissal, ordered the respondent’s reinstatement and issued a Final Written Warning.

Aggrieved by the Appeals Committee’s decision, the appellant lodged an appeal with this court.

The Appeals Committee’s decision is contained in a rather terse letter to the appellant’s Chief Executive Officer, dated 28 November 2012.  It advises the appellant of its “determination to reinstate the employee effective today”.  The reinstatement is with loss of pay and benefits up to the date of reinstatement.

The Appeals Committee went on to determine “that the employee be issued with a Final Written Warning that is valid for 12 months”.  It concluded its determination by stating that the employer “is also advised to tighten their security system to avoid loopholes that may continue to prejudice the organization”

One has to infer, from a reading of the determination, that the Appeals Committee upheld the conviction , but substituted the penalty of dismissal with that of a final written warning.  The determination is not worded in language that clearly pronounces and distinguishes the aspects of conviction and penalty.

The matter was however clarified during oral submissions.  Counsel made it clear that the issue was on penalty, not conviction.  Indeed, there was no cross-appeal from the respondent, contesting the conviction.

Therefore, the issue before this court, essentially, is whether the NEC Appeals Committee exercised its discretion properly when it substituted the Disciplinary Committee’s penalty of dismissal with that of a Final Written Warning.

The appellant averred that the misconduct, which involved theft/fraud, was one of dishonesty.  As such, it went to the root of the employment relationship.  The employer was entitled to dismiss the employee.  The appellant referred the court to a number of cases, among them that of Standard Bank Zimbabwe vs Chapuka S-125-04 .

In the Chapuka case, there was a strong element of dishonesty.  The employee altered cheques that were supposed to be drawn in favour of suppliers of building materials, and made them payable to his wife, subsequently making withdrawals and depositing them into his own account. Although this was a loan that had been granted for building a dwelling house, the method of its withdrawal was inconsistent with the express or implied terms and conditions of his employment contract.  MALABA JA (as he then was) had this to say:

“The relationship between Standard Chartered and Chapuka was one based upon trust and confidence.  It is sufficient that in dismissing Chapuka from employment Standard Chartered felt that as a result of his own acts of misconduct it could not continue in future to repose in him the trust and confidence that he would perform his duties as a senior member of staff with a high degree of honesty.  It was also sufficient that any reasonable employer in the position of Standard Chartered would on the facts have dismissed Chapuka for what he did.”

The Appeals Committee’s determination does not contain reasons why the penalty of dismissal was substituted with reinstatement and a warning.  It could only have interfered with the tribunal a quo’s penalty if the latter grossly misdirected itself.  The Appeals Committee’s  decision does not show the gross misdirection, or any misdirection at all, on the part of the Disciplinary Committee, to warrant interference with its decision.

In Mashonaland Turf Club v George Mutangadura SC-5-12 ZIYAMBI JA stated:

“In the exercise of their powers in terms of Section 12 B 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.”

In casu, the respondent furthered his interests at the expense of the employer.  He carried out private jobs that were not part of the company’s assignments to him.  The jobs were not recorded in the official register.  To cover his tracks he deleted the jobs from the system, as they were not part of the company’s output.  The dishonesty reflected went to the root of the employment relationship. The Disciplinary Committee did not misdirect itself when it imposed a penalty of dismissal.  It is the NEC Appeals Committee which misdirected itself when it interfered with that penalty, without showing why it so interfered.

The appeal must succeed in the circumstances.  It is accordingly ordered that:

The appeal be and is hereby allowed with costs.

The decision of the National Employment Council Appeals Committee be and is hereby set aside.

The decision of the respondent’s Disciplinary Committee be and is hereby upheld.

MURINGI KAMDEFWERE, Appellant’s legal practitioners