Marble Mutambarika v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/158/24
HARARE 25 JANUARY 2024 9 APRIL 2024
CASE NO LC/H/477/23
MARBLE MUTAMBARIKA APPELLANT
JUDICIAL SERVICE COMMISSION RESPONDENT
Before the Honourable G. Musariri Judge
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MARBLE MUTAMBARIKA

JUDICIAL SERVICE COMMISSION

RESPONDENT

Before the Honourable G. Musariji Judge:

For Appellant - Ms S. Chihombe, Attorney
For Respondent - Mr P. Chibanda, Attorney

MUSARIRI, J:

Appellant (employee) appealed to this Court against her dismissal from employment by Respondent (employer). The appeal was made in terms of section 54 of the Judicial Service Regulations S.I. 30/15. The employer opposed the appeal.

The grounds of appeal were quintet thus;

“1. The Disciplinary Committee erred and misdirected itself in convicting the Appellant on a charge of contravening Para 4 of the Third Schedule of the Judicial Service Regulations of 2015, in the absence of evidence of deliberate and serious defiance of authority.
2. The Disciplinary Committee erred in its finding that the Appellant failed to obey a lawful order when the order was incapable of performance and so unreasonable as to defy common sense.
3. The Disciplinary Committee misdirected itself in failing to appreciate that the Appellant reported to the Regional Magistrate and any disobedience to the Resident Magistrate instruction would result in disobedience of her supervisor’s earlier instruction.
4. The Disciplinary Committee erred in convicting Appellant of a charge of contravening paragraph 5 of the third Schedule to the Judicial Service Regulations of 2015 when no evidence was led establishing that her conduct and language constituted insolence, abuse or some other form of harassment.
5. The Disciplinary Committee erred in imposing the penalty of Discharge in circumstances were the acts of misconduct were not deliberate or sustained and did not indicate any intention on the part of the Appellant to defy the authority of the employer.
 The acts of misconduct were so trivial, so inadvertent, so aberrant or otherwise excusable such that the penalty of discharge was unduly harsh on the facts of the case.”

These grounds raise 3 (three) issues which shall be dealt with ad seriatim.

1. **Whether the employee had reasonable excuse for failure to obey instructions:**

On Friday 10 February 2023 the employee was tasked to type 3 record covers for the Resident Magistrate (RsM). It is common cause that she did not type the records on that day. Her alibi was that she was working on a record for the Regional Magistrate (RgM) which she finished around 1730 hours. She then decided to work on the 3 records the following Monday morning. However come Monday morning, she was summoned to RsM’s office to account for her actions.

The Disciplinary Committee (DC) dismissed the alibi in these terms,

“We are convinced that even if the member was working on the regional record of State v Tapiwa Munetsi, there was clearly ample time for the member to clear Provincial Court records for typing as the work is not time consuming. Thus it could not have been unreasonable for the Resident Magistrate to expect the covers of her record to be typed that day. We took note of the testimony of Faustina Mayisva, the Clerk of Court that ordinarily these review and scrutiny covers are usually typed and returned by the Executive Assistants on the same date. It is for these reasons discussed above we returned a verdict of guilty as charged in respect of the first count as we were convinced that she failed to comply with the instruction to type review and scrutiny records for the Resident Magistrate placed before her for typing.”

In her heads of argument, the employee argued that

“26. What is apparent from the above finding is that the time within which the records were due for review and scrutiny had not yet lapsed. The records were handed to the Appellant on Friday 10th of February 2023 around 1400 hours. At the time Appellant was ceased with another record of State v Munetsi from the Regional Court and she was under instruction to type that record first as it was urgent. This instruction is confirmed by the Regional Magistrates. Mrs Mukunyadzi on page 83 of the minute of the proceedings. The records for scrutiny and review were not accompanied by a specific timeline and the Appellant elected to finish the record from the Regional Court first. By the time she finished, it was already 1700 hours and she intended to deal with the scrutiny and review records from the Resident Magistrate the following working day Monday, 13 February 2023. Unfortunately, on Monday the records had already been taken back.”


The Disciplinary Committee did not find that the records given to the employee were accompanied by a timeline. The Disciplinary Committee only noted the Clerk of Court’s evidence that such records were normally done on the same day they are given. That does not amount to an instruction to type the records immediately or even on the same day. The Disciplinary Committee grossly misdirected himself by failing to note that in the absence of a timeline in these circumstances it cannot be said that the employee failed to obey a lawful instruction. It was still open for the employee to obey the instruction on Monday morning as intended.

**Whether the employee was guilty of insolence, abuse or harassment:**

The second count of misconduct arises from the events on Monday 13 February 2023. Appellant was called by RsM to account for her actions. The Disciplinary Committee found that,

“Pertaining to the second count the charge preferred against the member stem from an incident which occurred after Ms Mutambarika was invited to the office of the Resident Magistrate Murewa Magistrates Court, Ms Gatsi to explain why she had not typed two scrutiny records and one review record given to her by Ms Mayisva for typing. In particular it is alleged that Ms Mutambarika in her response started to shout on top of her voice. Her conduct drew the attention of other members of staff and litigants. It is alleged that during the course of shouting, the member made the following utterances (should I cut myself into pieces, do you want me to die… I was working on a Regional Record which was urgent. Do you want me to leave work during the night doing the record? And you should not give us executive assistants day off on Fridays. I cannot promise to balance my workload there will always be work and I cannot cut myself into pieces.) …

We were absolutely convinced that the color or the substance of the utterances made by the member borders on insubordination and disrespect of the Resident Magistrate as the immediate supervisor of the members. Therefore, due to the corroboration of the testimony of the Resident Magistrate Gatsi by Ms Mayiswa we were convinced that the member conducted herself in an insubordinate and discourteous manner towards the Resident Magistrate in the court and scope of her duties.”


The Disciplinary Committee disbelieved the employee’s story that she was provoked by RsM. It is difficult to fault the Disciplinary Committee considering that RsM was corroborated by Mayisva. The employee argued that she “might have used rude language, it was not abusive language to qualify as improper, threatening, insubordinate or discourteous behaviour.” However, shouting in rude language at one’s supervisor is at the very least discourteous behaviour as defined in the offence.

3. Whether the penalty of dismissal was excessive in the circumstances; The Disciplinary Committee ruled on penalty that

“During the hearing and in her closing sub missions the member openly alleged that the Resident Magistrate was running the station through gossip. In particular the member alleged that the Resident Magistrate simply acts on what her fellow Executive Assistant Maswera says without establishing the veracity of the issue. It is this compound effect of the two counts the member has been convicted of when cumulatively considered which moved the committee to recommend that the appropriate penalty is that of a dismissal from employment.”

This Court has already concluded that the employee was wrongly convicted of failure to obey a lawful order. It therefore follows that the Disciplinary Committee misdirected itself in punishing the employee for an offence she was not guilty of. This Court is thus at large on the question of the appropriate penalty. The discourteous behaviour the employee was guilty of did not threaten or verbally insult the RsM. It was discourteous because what was said was shouted at RsM in an offensive manner. However, it is clear that the employee acted emotionally in circumstances where she felt that her boss was being unreasonable. Such conduct per se does not warrant dismissal. There being no record of previous misconduct by the employee it is considered that the reprimand provided by section 53(k)(l) of the Judicial Service Regulations is the most appropriate penalty.


Wherefore it is ordered that

1. The appeal be and is hereby allowed;

2. The dismissal of appellant by respondent is set aside and substituted with a reprimand;

3. (a) Respondent shall reinstate appellant without loss of salary and benefits, or (b) Respondent shall pay appellant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this Court; and

4. Each party shall bear its own costs

G MUSARIRI
J-U-D-G-E
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