Rosemary Chagonda v Cresta Lodge

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/336/16
HELD AT HARARE ON 3RD FEBRUARY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/336/16

HELD AT HARARE ON 3RD FEBRUARY, 2016           CASE NO. LC/H/139/15

AND 27TH MAY, 2016

In the matter between:-

ROSEMARY CHAGONDA						    Appellant

And

CRESTA LODGE								    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr O. Zimbodza (Legal Practitioner)

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

MHURI J.

The charges for which Appellant was found guilty and dismissed from Respondent’s employ were:

Any act or conduct or omission inconsistent with express or implied conditions of the employee’s contract.

Being dishonest in the performance of normal duties.

In brief the allegations that brought about the charges were that Appellant created a personal account for one Allen Ruzvidzo for a transaction involving $100 which Allen had improperly transacted on a guest’s account which transaction would leave the guest’s account with an outstanding balance.

Appellant’s appeal to the Appeal’s Committee (A/C) was unsuccessful.  It is to this court that Appellant turned to on four grounds of appeal, vis, that:-

The A/C erred at law in allowing splitting of charges.

The A/C erred in accepting a defective investigation report.

The A/C erred in upholding Appellant’s dismissal despite evidence clearly showing that Appellant was not dishonest.

The A/C erred in dismissing Appellant despite the evidence in mitigation which were in favour of a lesser penalty than dismissal.

It is an unchallenged principle that it is the employer’s prerogative to level charges against an employee.  In casu, the employer (Respondent) preferred two charges derived from the circumstances arising from Appellant’s actions.  From the circumstances, as correctly submitted by Respondent’s legal practitioner, Respondent noted that Appellant failed to follow procedures and this was with an intention to deceive, and that regardless of whether procedures were followed or not, she intended to deceive.  These in my view were two distinct acts of misconduct which could be preferred separately by Respondent.

The fact that the charges fall under the same category for which the penalty is the same, is neither here nor there.

This notwithstanding, I am in agreement with Respondent’s submission that the first two grounds of appeal raise issues for review and are therefore improperly before the Court as appeal grounds.

As regards the third ground of appeal, it is clear that Appellant is aggrieved by the verdict on the second charge.  She is not challenging the verdict on the first charge, that of conduct inconsistent with the express or implied conditions of her contract of employment.  That verdict therefore remains unchallenged and remains confirmed.

On the second charge, it is common cause that Allen made an improper transaction on the guest’s account.  This transaction gave the impression that the guest’s account had an outstanding balance.  This was not correct.  The Appellant picked this up and decided to open a personal account for Allen and transferred the $100.00 debt into that account.  This gave the impression that Allen was a debtor.

The A/C’s deliberations on the above, were that Appellant acknowledged that the corrections to Allen’s fraudulent postings could have been corrected on the same account and folio.  Appellant failed to show good cause for opening the personal account.  This is more so in view of the fact that Allen tampered with the guest’s Account to “get” the $100,00 from the system.

By opening a personal account for Allen, well knowing that Allen had without authority taken money from the system was a dishonest act in my view.  There was enough evidence to substantiate that charge and this ground of appeal must be dismissed.

As regards the fourth ground, the record shows that both mitigatory and aggravatory factors were considered by the Disciplinary Committee.  The Disciplinary Committee found however that dismissal was the appropriate penalty.  This was a discretion that the Disciplinary Committee exercised and could not be interfered with by the A/C.

It is trite that the issue of penalty is the discretion of the employer and that exercise cannot be interfered with by an Appellate Court unless it is shown that it was not judiciously exercised

TREGERS PLASTICS (PRIVATE) LIMITED

vs

WOODRECK SIBANDA

PAUL MANGONDO SC 22/12

In casu, as alluded to earlier, there has not been a challenge to the verdict on the first charge.  It therefore stands.  The penalty on a first breach is a dismissal.  The A/C found that Appellant’s bulk of submissions on mitigation were all based on matters discussed in Allen’s hearing.  It considered the aggravating factors and decided to uphold the dismissal penalty.

I find no legal basis to interfere with its decision.  As an Appellate Court, the A/C had no legal basis to interfere with the Disciplinary Committee’s exercise of discretion on the penalty.

This fourth ground of appeal, cannot be upheld either.

In the circumstances the entire appeal is without merit.  It is and is hereby dismissed in its entirety with costs.

Zimbodza & Mugwagwa– Appellant’s legal practitioners

Dube, Manikai & Hwacha – Respondent’s legal practitioners