Martin Tawanda Mutuke v Zimbabwe Platinum Mines (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/251/16
HELD AT HARARE ON 25th JANUARY, 2016
CASE NO. LC/H/598/15
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/251/16

HELD AT HARARE ON 25th JANUARY, 2016     CASE NO. LC/H/598/15

AND 22nd APRIL, 2016

In the matter between:-

MARTIN TAWANDA MUTUKE						    Appellant

And

ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED		    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	In Person

For Respondent	:	Mr. A.K. Maguchu (Legal Practitioner)

MHURI J.

The factual background of this case is that Appellant was in Respondent’s employ as a shift boss and supervisor.

He was charged for breaching Section 3.2.4 of Respondent’s Code of Conduct – unsatisfactory work performance in that on the 3rd May, 2015 he failed to ensure that bolter 36 was at a safe place resulting in it being damaged by rocks from 39S 30E which had been holed.

After a hearing, Appellant was found guilty.

At the time of the hearing, Appellant was sitting on a final written warning issued in April, 2015.  Because the final written warning had not expired, a penalty of dismissal was imposed.

Appellant appealed to the Appeal Committee against the penalty and his grounds of appeal were:

I plead for leniency.

I learnt important lessons from this incident and from the disciplinary hearing.

I erred when I accepted the Overseer Miner’s report that the bolter was in a safe place from the blast without doing more to ensure that the bolter was safe.

Appellant did not appeal against the final written warning and it is still extant.

Appellant’s appeal to this Court is not vehemently challenging the verdict but challenging the penalty of dismissal on the ground that it was unfair to dismiss him as the incident happened in a section where he had an overseer who had a full blasting licence.

His prayer to this Court was that the Court sets aside the penalty and substitute it with what it deems suitable as the final written warning was issued as a result of traumatic conditions he was subjected to by his superior.

In terms of section 4.6.2 of the Code, an employee who is on a final written warning who commits any other breach within the currency of the final written warning may render himself liable for dismissal.

Section 4.7 provides for DISMISSAL.  In particular Section 4.7.1 provides:-

“Dismissal is the final sanction and should be used

When other forms of disciplinary/corrective action have failed; or

When an employee on a final warning commits any breach”

(Emphasis added)

It is not in dispute that Appellant was not a first offender.   Neither is it in dispute that Appellant was sitting on a final written warning.  Even if the charge preferred against Appellant did not call for a dismissal on first breach in terms of the Code, in view of the above cited sections, an imposition of a dismissal penalty under the circumstances cannot be said to be unfair.

The Disciplinary Committee’s decision to invoke the provisions of section 4.7 was therefore correct in my view and is certainly beyond reproach.

It is not for this Court, sitting as an Appellate Court, to interfere with the penalty even if it considers it to be severe.

The remarks by KORSAH JA (as he then was) in the case of STATE vs NHUMWA SC 40/88 at page 5 of the cyclostyled judgment to the effect that

“It is not for the Court of Appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed.  If the sentence imposed complies with the relevant principles even if it is severer than one that the Court would have imposed, sitting as a Court of first instance  this  Court  will  not  interfere  with  the  discretion  of  the  “sentencing  Court”,

are apt.

In that regard therefore the prayer by Appellant cannot be granted.

In the result, the appeal being devoid of merit, it is ordered that it be and is hereby dismissed.

Dube, Manikai & Hwacha – Respondent’s legal practitioners