Pardon Kapondoro v Zimbabwe Wildlife Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/210/23
HARARE, 24 MAY 2023 & 11 JULY 2023
CASE NO LC/H/277/11
In the matter between:-
PARDON KAPONDORO
APPLICANT
ZIMBABWE WILDLIFE AUTHORITY
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/210/23

HARARE, 24 MAY 2023 & 11 JULY 2023

CASE NO LC/H/277/11

In the matter between:-

PARDON KAPONDORO

APPLICANT

ZIMBABWE WILDLIFE AUTHORITY

RESPONDENT

Before the Honourable Kudya J

For the Applicant

E. Mukwewa (Legal Practitioner)

For the Respondent

R. Makuva (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent employer finding the appellant employee guilty of conduct inconsistent with his employment and penalising him with dismissal.

The appellant raises 9 grounds of appeal but they all culminate into a single appeal ground that the appellant is not happy with the penalty which was meted out on him. He argues that he should have received a lower penalty taking into account that the stolen gun was not stolen in his custody but in the custody of another officer one who was well trained to use the gum and who he had entrusted with the gun so that she could safe guard the employer’s property.

It is settled that penalty can only be vacated if it is demonstrated that such was arrived at in circumstances where the penalising authority exercised its discretion irrationally See Nyawasha v Circle Cement SC-10-03. It has been emphasised time and again that it is not the function of the appellate court to substitute its discretion for that of the trier of fact unless it is demonstrated that there was gross misdirection in the exercise of such discretion See Nyahondo v Hokonya 1997(2) ZLR 457 (SC).

In the case at hand it is said that the gun issued to the appellant was for his use and that Bushu had her own gun thus there was no need for appellant to leave his gun at the base let alone leave the base unattended. Appellant repeatedly pointed out that he was driven by a desire to have the employer’s properly secured have hence his leaving his gun with Bushu. This argument seems to fly in the face of his leaving the base unattended. If he was as responsible as he would have the court believe he then would not have left the base unattended.

He argues also that there was discrimination in the manner in which his case and Bushu’s cases were handled. He reasons that Bushu’s blame worthiness was higher than his if regard is had to the fact that the gun was stolen in Bushu’s custody and that Bushu was letting foreigners into the base in particular her lover. It is his view that he should have been penalised with a non dismissal penalty. It is granted that discrimination is outlawed by the Constitution but sight should not be lost of the fact that appellant stood in a supervisory position over Bushu. To that extent more responsibility was reposed over him hence his blame worthiness stood at a higher pedestal than that of Bushu. In any event it is settled that once the employer takes the view that the conduct goes to the root of the employment contract dismissal may not be questioned if meted out. See Inscor v Chimoto SC-6-12. It is clear that appellant abused his role and put the employer’s property and reputation at risk. The court thus does not find fault with how he was penalised. In the ultimate the court is satisfied that it has no basis to interfere with the penalty or to ask that it be vacated. The appeal consequently fails.

IT IS ORDERED THAT

Appeal lacking in merit it be and is hereby dismissed with costs.

Mukwewa Law Chambers. Applicant’s Legal Practitioners
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