Marondera Municipality VS Bongani Guswana

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/139/16
HELD AT HARARE ON 17th NOVEMBER, 2015
CASE NO. LC/H/560/11
AND 18TH MARCH, 2016
JUDGMENT NO. LC/H/130/16
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/139/16

HELD AT HARARE ON 17th NOVEMBER, 2015     CASE NO. LC/H/560/11

AND 18TH MARCH, 2016

In the matter between:-

MARONDERA MUNICIPALITY					    Appellant

And

BONGANI GUSWANA							    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr O. Shava (Legal Practitioner)

For Respondent	:	Mr S. Zvinavakobvu (Legal Practitioner)

MHURI J.

A brief background of the matter which has brought about this appeal, is that Respondent was Appellant’s employee as an Accounting Assistant Projects as from October, 2009.  Prior to that he had been moved from Appellant’s employ to Zinwa and back after having joined Appellant in 1996.

On the 26th February, 2010 Respondent appeared before a Disciplinary Committee to answer nine charges of acts of misconduct.  The Disciplinary Committee found him guilty of the said charges and he was dismissed from Appellant’s employ.

The matter was referred to arbitration whereupon the verdict of guilty was not interfered with.  It was only the dismissal penalty that was interfered with.  The Arbitrator had this to say in his analysis of the evidence,

“Two penalties were handed down for the same offence, i.e. dismissal and reimbursement/payment of restitution amounting to USD784,00.  In my view dismissal should be a sanction of last resort.  The employer should consider giving warnings, providing training for under performers or were (sic) someone is given new duties as is the case in this matter.

Before termination the employer should also consider employee’s disciplinary record, period of service and other mitigatory factors.  In this matter employee had served council since 1996.”

In his award, the Arbitrator stated:

“…In my view the employer was supposed to give one sanction either dismissal or payment of restitution and not both …”

I find two issues on which the Arbitrator grossly misdirected himself.  The first one being the finding that Appellant imposed two penalties.  The second one being the interference with the exercuse of the employer’s discretion on the penalty where the employer has taken a serious view of the acts of misconduct.

The Disciplinary Committee’s determination is found under paragraph 3.3 of the Disciplinary Committee’s minutes of the proceedings (record page 32) I hereunder reproduce it,

“The chamber Secretary said Mr. B. Guswana should be discharged from council employment with effect from the date of suspension.

The Assistant Director of Housing and Community Services seconded and said the gravity of the case was considered by the committee to come up with such a determination.  He said Mr. B. Guswana showed dishonest and fraudulent behavior.

Clr. Makangira and Clr Mudzongo concurred.”

The trite position of the law that the imposition of a dismissal person penalty is at the discretion of the employer and where such as has been exercised, an Appellate Court should not interfere with it unless it has been shown that it was improperly exercised is very apt in this case.

TREGERS PLASTICS (PRIVATE) LIMITED

vs

WOODRECK SIBANDA

PAUL MAGONDO SC 22/12

INNSCOR AFRICA (PRIVATE) LIMITED

vs

LETRON CHIMOTO SC 6/2012

From the Disciplinary Committee’s determination quoted above, the Disciplinary Committee took a serious view of the acts of misconduct.  The Disciplinary Committee found as established an element of dishonest and fraudulent behaviour on the part of Respondent.  Other ways to have Respondent remain in Appellant’s employ were considered by the Disciplinary Committee but it was submitted that that would set a wrong precedent.  A discharge penalty was recommended.

It does not necessarily mean, in my view, that where other forms of penalties (educational corrective) are recommended, these must be imposed first as of right before a dismissal penalty is imposed.  Where this is not considered, this does not confer upon a judicial officer the power to interfere with the dismissal where the employer is of the view that the act of misconduct goes to the root of the employer employee relationship.

See the remarks in the case of

CIRCLE CEMENT (PRIVATE) LIMITED

vs

CHIPO NYAWASHA SC 60/02

at page 5 of the cyclostyled judgment that

“Once an employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration does will not arise.”

I find that the arbitrator fell into error by interfering with Appellant’s exercise of discretion.  In view of the acts of misconduct Respondent was found guilty of – which had an element of dishonest, breach of trust, which went to the root of the contract of employment, and in view of the remarks in the above case, it was not even it was not even necessary for Appellant to consider any other penalty apart from dismissal.

Further, it is a trite position of the law that an employer is not to be completed to keep in his employment a person with whom the relationship has soured beyond reconciliation.  As such an order of reinstatement must have an alternative of payment of damages.  The award in casu was silent on the payment of damages as an alternative.  This was an error on the part of the arbitrator more so since the guilty verdict was not interfered with.

The arbitral award cannot be allowed to stand.

It is ordered that the appeal be and is hereby allowed.

Mutsahuni Chikore – Appellant’s legal practitioners

Mbidzo, Muchadehama and Makoni – Respondent’s legal practitioners