Rangarirai Mudzingambiri v Kotwa Hospital & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/147/2025
HARARE, 4 MARCH, 2023
CASE NO R-LC/H/754/22
RANGARIRAI MUDZINGAMBIRI
APPLICANT
KOTWA HOSPITAL
1
RESPONDENT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

HARARE, 4 MARCH, 2023

RANGARIRAI MUDZINGAMBIRI

KOTWA HOSPITAL

1ST RESPONDENT

HEALTH SERVICES BOARD

2ND RESPONDENT

Before the Honourable L. Hove and G. Musariri, Judges:

For Applicant - K. Masasire, Attorney

For Respondents - C. Chitekuteku, Officer

MUSARIRI, J:

On the 21st November 2023 this dismissed appeal’s appeal and upheld his dismissal from employment by respondents. The judgment was appealed to the Supreme Court which issued an order on 18th July 2024 in the following terms,


“1. The appeal succeeds in part with each party bearing its own costs.
2. The appellant conviction on a charge of misconduct by the Labour Court is upheld.
3. The penalty imposed by the appellant be and is hereby set aside.
4. The case is hereby remitted to the Labour Court to hear the appellant’s submissions on mitigation before imposing upon him an appropriate sentence.”

The matter was duly set down for hearing at which both parties were represented. Appellant set out his mitigation thus

1. He is married.
2. He has 5 children dependent upon him.
3. His service to respondent amounts fifteen (15) years.
4. His service record was unblemished prior to this case.
5. The amount involved is insubstantial.
6. He urged the Court to consider an order of restitution coupled with a demotion in light of the high unemployment rate within the country.

Respondent stressed the fact that the misconduct went to root of the employment contract to the extent that the employer had lost trust in appellant.

In argument, appellant relied on Section 12B(4) of the Labour Act Chapter 28:04 which provides that,

“(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”


On the other hand, respondents relied on the case of;

MTC v Mutangadura 2012(1) ZLR 183(S).

Per Ziyambi JA at 186B

“In the exercise of their powers in terms of s12B(4) of the Labour Act, the Labour Court and arbitrators must be reminded that that section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by the employer just because they disagree it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.

We are, therefore, of the unanimous view that both the Labour Court and the arbitrator erred in substituting their discretion for that of the employer in setting aside the dismissal.”

This Court is guided accordingly. In Judgment LCH 339/23 the Court found that in 2013 appellant misappropriated the employer’s cash amounting to $3 379 which was in his custody. That was a substantial amount of money contrary to appellant argument that it was insubstantial. Theft entails dishonesty. The dishonesty is aggravated by the fact that the money was entrusted to appellant by his employer. He abused the fiduciary duty of fidelity to his employer and misappropriated the money. Clear the employer’s argument that the misconduct went to the root of the employment contract was well founded. Thus the employer reasonably exercised its discretion to punish the errant employee by the penalty of dismissal.

Further, the argument that the amount involved was insubstantial cannot assist the applicant in getting a lesser penalty. In the case of Innscor v Chimoto SC 06/12 the Supreme Court, per Malaba CJ, held that,
 “The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers. The finding that the Pizza was only $4.00 was no consequence. The offence committed involved a betrayal of trust and confidence reposed in the respondent by the appellant thereby going to the root of the relationship between the employer and employee.”

This court already found that the amount was substantial but even assuming that it was not, the relevant consideration is that there was betrayal of trust and confidence reposed in the respondent by the employer. A breach of this trust went to the root of the contract between the employer and the employee.

In the circumstances, it really does not matter how one looks at this matter, this court does not see a valid basis for imposing the lesser penalty proposed by the applicant.


Wherefore it is ordered that,

1. The appellant be and is hereby dismissed from employment by respondents with effect from 6th March 2015 (per the misconduct determination); and

2. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E

I AGREE

L. HOVE

J-U-D-G-E
--- END OCR FALLBACK ---