Martin Tongai Mazvimba v Harare Institute of Technology

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/501/16
HELD AT HARARE 5 JULY 2016
CASE NO
JUDGMENT NO LC/H/501/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/501/16

HELD AT HARARE 5 JULY 2016				CASE NO LC/H/08/16

& 9 SEPTEMBER 2016

In the matter between:

MARTIN TONGAI MAZVIMBA				Appellant

And

HARARE INSTITUTE OF TECHNOLOGY			Respondent

Before The Honourable Chidziva, J

For Appellant			M Y Bumhira (Legal Practitioner)

For Respondent		O Kondongwe (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the Institute Board to dismiss the appellant from employment.

The brief history of this matter is that appellant a lecturer in the Pharmaceutical Technology department around August 2015 started conducting lectures for two foreign students from Namibia without the requisite authorisation.  He made the students to pay $200 for the ten lessons he delivered to them.  He was charged for contravening Section 9:4:2 of the Disciplinary and Grievance Handling Procedural which reads that

“Any act of conduct or omission inconsistent of the express or implied conditions of his contract.”

Appellant pleaded guilty to the offence.  After mitigation the Disciplinary Committee recommended to the Vice Chancellor dismissal of the appellant.  The Vice Chancellor upheld the dismissal of he appellant.  The appellant also appealed to the Institute Board which in turn dismissed his appeal.  The appellant has now filed his appeal to this court.

The grounds of appeal are as follows

The Institute Board erred by upholding the Vice Chancellor’s decision to dismiss the appellant when the Vice Chancellor did not give reasons for reaching such a determination.

The Institute erred by glossing overall the grounds of appeal raised by the appellant at each various stage of the hearing to the extent that the appellant’s grounds of appeal were never considered.

The Institute Board erred by confirming each various appeal stage’s position that where a code of conduct provides for dismissal as the penalty for an offence that pending is absolute and an adjudicating board had no power to deviate from such a penalty.

The penalty induces a sense of shock.

On these grounds the appellant prayed that

The decision of the board chairman be set aside.

The appellant be reinstated and be given a final written warning.

The respondent in response submitted that

Appellant pleaded guilty to the charges and the only issue in this matter relates to the penalty.

The penalty was neither disproportional nor excessive considering the law and the circumstances in aggravation and mitigation which were considered.

The respondent therefore prayed for the dismissal of the appeal.

It is common cause that

Appellant pleaded guilty to the offence

A penalty of dismissal of dismissal was imposed.

What is to be decided is whether

The Vice Chancellor and the Institute Board erred by upholding the decision of the Disciplinary Committee

The penalty induces a sense of shock

The appellant pleaded guilty to the offence and thus the Vice Chancellor and Board

Institute did not err by upholding the decision of the Disciplinary Committee.  The Board Chairman in his letter to the appellant dated 18 December 2015 stated that the Board had noted that

The appellant had pleaded guilty to the offence

The offence which he had committed attracted a penalty of dismissal

The Vice Chancellor in his letter dated 2 December 2015 also stated that after

considering the issues that appellant had raised on appeal he decided to uphold the decision of the Disciplinary Committee.

All this shows that the Vice Chancellor and Board Institute considered the reasons given by the Disciplinary Committee to convict appellant and impose the penalty that it imposed.  They accepted the reasons given by the Disciplinary Committee and had no reason to divert from it.

In Herbstein & van Winsen The Civil Practice of the Supreme Court of South Africa 4 ed at 96 it has been stated that

“it has reportedly been laid down that in view of the advantages enjoyed by the trial court in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial, an appeal court is in general reluctant to disturb the findings of a trial court on questions of fact.”

In view of this also and the fact that appellant had pleaded guilty there was no reason for the Vice Chancellor and the Institute Board to change the verdict and the penalty.  The appellant cannot be allowed to escape the consequences of his conduct due to technicalities as stated by CHIDYAUSIKU CJ in the case of Air Zimbabwe v Chiku Mnensa & Anor SC 89/04 where he stated that

“He should only escape if he is innocent.”

The appellant admitted that he committed misconduct which is inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract.  In the case of Standard Chartered Bank v Chapfuka SC 125/04 it was stated that

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contact of employment goes to the root of the relationship between an employer and an employee giving the former a prima facie

Regent to dismiss the latter.”

The respondent was therefore given the prima facie regent to dismiss the appellant.  However appellant could escape the penalty of summary dismissal if he had proven that the offence was trivial.  This has been stated in the case of Tobacco Sales Floor v Chumwala 1987 (2) ZLR 210 where it was stated that

“I consider that the seriousness of the misconduct is to be measured by whether it is inconsistent with the fulfilment of the express or implied conditions of his contract.  If it is, then it is serious enough prima facie to warrant dismissal.  Then it is up to the employee to show that his misconduct though technically inconsistent with the fulfilment of the conditions of his contract that the offence was so trivial, so inadvertent or otherwise excusable as not as to warrant the remedy of summary dismissals.”

The appellant has not proven that the offence was trivial.

In view of this therefore the appeal lacks merit.

Furthermore the grounds of appeal before this court raised issues on the procedural correctness of the appeal proceedings before the Vice Chancellor and the Institute Board Section 92 E of the Labour Act states that

“An appeal in terms of this Act may address the merits of the determination or decision appealed against.”

The appellant in this case complained about the manner that the matter was handled and not the merits of the case.  For that reason alone the matter was also not properly before this court.

In view of the foregoing therefore this court finds that the appeal lacks merit.

It is therefore ordered as follows

The appeal be and is hereby dismissed.

Appellant to bear costs.

J Mambara & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners