Kadoma Hotel & Conference Centre v Godfrey Mushayabande

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/810/2016
HARARE, 28 JUNE 2016 &
CASE NO LC/H/74/2016
30 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/810/2016

HARARE, 28 JUNE 2016 &				           CASE NO LC/H/74/2016

30 DECEMBER 2016

In the matter between

KADOMA HOTEL							APPELLANT

& CONFERENCE CENTRE

Versus

GODFREY MUSHAYABANDE					RESPONDENT

Before the Honourable Makamure J

For the Appellant      Ms W R L Chirongoma (Legal Practitioner)

For the Respondent   I Mataka (Legal Practitioner)

MAKAMURE J:

This is an appeal against an arbitral award wherein the arbitrator found that the respondent had committed minor acts of misconduct and thereafter set aside the penalty of dismissal and ordered the appellant to reinstate the respondent. This aggrieved the appellant.

The respondent was dismissed for failure to obey an instruction by a person in authority and conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. From a reading of the arbitral award, the Learned Arbitrator found that the respondent had failed to discharge his duties but the arbitrator called these ‘minor’ incidences of insolence or infractions of the law which did not call for the penalty of dismissal.

From the above, the findings of the Learned Arbitrator with respect to both charges show that the respondent misconducted himself. Once it has been found that, an act of misconduct has been proved against an employee, the question of what the appropriate penalty is remains with the employer. Authorities have emphasized this point on countless times. See Hama v National Railways of Zimbabwe 1999 (1) ZLR 664 (S). In Innscor Africa (Pvt) Ltd v Letron Chimoto 56/2012 the Supreme Court held that that once an employer had taken a serious view of a misconduct committed by an employee leading to that employer imposing the penalty of dismissal, an appeal court should not interfere. The employer is entitled to exercise its discretion. It is only when such discretion has not been properly exercised that an appeal court may interfere.

In the present case the appellant is in the hospitality industry. Its core business centres on meeting of guest satisfaction. In pursuit of that, the respondent was asked to write a report about what needed to be repaired within its complex. Firstly, instead of writing the report the respondent held the view that the supervisor should rely on previously submitted reports. He therefore did not supply or write the said reports. That conduct reflects a contemptuous attitude which should not be tolerated. Had his superior wanted to rely on previous reports, I am sure that he would have done so. The fact that he issued out fresh instructions means that he wanted a fresh report. It was not up to the respondent to make a decision on behalf of his superior. The respondent ought to have complied with that instruction. Secondly the respondent was a handy man. His expertise in electrical gadgets, appears to have been limited. He was asked to attend to something called a breaker. He made certain observations which required attention but due to his limitations, he was not able to effect any repairs. He did not report his observation to his superior. He should therefore have advised his superior of his limitations instead of not reporting what he had observed.  True, he was not an electrician but he should have brought this to the attention of his superior. He did not. His failure to make a report constitutes a misconduct which cannot be termed “a minor infraction” or “an incident of minor insolence”. Even if it was minor, as the Arbitrator would want to describe it, it was an act of misconduct. Such conduct should not go unchecked. Neither should it be viewed as minor. The employer’s concern was that failure to have the repairs done on that breaker resulted in there being no power or electricity in a certain area. That according to the employer compromised the security of guests. The conduct was wrong. What this conduct leads to is guests get the impression that the institution not properly maintained. That certainly negatively affects guest satisfaction.

Thus in all circumstances the Learned Arbitrator fell into error by interfering with the employer’s discretion. There is merit in the appeal.

The appeal is granted.

Accordingly it is ordered that the arbitral award be and is hereby set aside in its entirety and substituted with the following:

“The claimant’s claim be and is hereby dismissed.”

C Kuhuni Attorneys, appellant’s legal practitioners

Chambati Mataka & Makonese, respondent’s legal practitioners