Sandvik Mining & Construction Zimbabwe (Private) Limited v Elias Ncube

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/463/2013
HARARE 17th JUNE 2013 &
CASE NO. LC/H/161/2012
27th SEPTEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO LC/H/463/2013

HARARE 17th JUNE 2013 &			    CASE NO. LC/H/161/2012

27th SEPTEMBER 2013

In the matter between:-

SANDVIK MINING & CONSTRUCTION			Appellant

ZIMBABWE (PRIVATE) LIMITED

Versus

ELIAS NCUBE							Respondent

Before the Honourable L Kudya :	Judge

For the Appellant	 : R Matsikidze (Legal Practitioner)

For the Respondent: B Makururu (Legal Practitioner)

KUDYA J:

This is an appeal by the Appellant Company against the decision of the General Engineering Committee (G.E.C) which had set aside the Respondent’s (“the employee’s”) dismissal on charges of stealing paint from his workplace.

Facts of the case are that the employee who was in the Appellant’s employment as a painter was brought before a Disciplinary Committee on allegations of theft in contravention of the Industry’s Code of Conduct. He was dismissed from employment.

He appealed against his dismissal to the Works Council which confirmed his dismissal. When his matter went before the G.E.C it ruled that the employer had no right of appeal per Industry Code and on the merits it found that the employee’s guilt had not been adequately proven. It thus set aside the dismissal and substituted it with a written warning.

Aggrieved by this decision the employer has now appealed to this court and such is the subject matter of the instant judgment.

The Appellant’s basic argument is that the G.E.C erred by substituting the Respondent’s penalty where it was clear that the Respondent had committed a dishonest act and where the employer felt that such went against the fabric of trust endowed in him. It thus urged the court to set aside the warning order and confirm the employee’s dismissal.

In response, the employee maintained that his guilt had not been adequately proved and that the G.E.C was correct in setting aside his dismissal. He thus urged the court to dismiss the appeal and to confirm the G.E.C’s order of reinstatement and the warning.

The only major issue which fell for determination in this matter is whether or not the G.E.C did right by setting aside the dismissal and substituting it with the warning. Alongside with this was also the issue of the propriety or otherwise of the employer bringing up an appeal when the Code does not expressly provide for it to appeal but where it only vests such a right in the employee.

When the matter was set down and when it was argued out, the Respondent raised a point in limine about the exhaustion of domestic remedies. He however dropped the point after it was argued out and he saw that it had no merit. This court therefore does not wish to belabour itself by repeating the arguments on the point in limine and its withdrawal.

Suffice therefore to state that, the only point which remained as far as this case was concerned were the submissions on the merits of the penalty. By and large both counsel relied on the heads of argument which they filed with the court on that point.

There was some minor argument about whether it was right for the G.E.C to say that the employer had no right of appeal where it was specifically ousted by the Code but a thorough reading of the heads and submissions shows that the main issue in contention was the penalty of the employee.

Both counsel cited extensively authority on the legal position vis penalty in disciplinary actions. The court is of the view that those authorities do not deserve re-statement.

It is trite that, the prerogative to discipline an employee lies with the employer and where the employer takes a serious view of the infraction and decides to dismiss such action cannot be faulted.

In the instant case, it is clear that, the employee was disciplined for theft charges and even at the criminal court he was sentenced on such as borne out by the submissions filed of record.

Dishonesty, by its very nature goes against the fabric of trust endowed in an employee and unless there are extraneous compelling reasons why the aggressor should not be dismissed the court finds no fault with a dismissal in such a case.

In any event, the issue of the right of appeal notwithstanding the pertinent point is that, if in the disciplinary hearing the employee’s guilt was proven the only remaining question was what penalty?

It is clear from the G.E.C’s decision that the warning it decided to use as substitute penalty presupposed that the employee was guilty.

The error which it however fell into was to interfere with the penalty without following the trite legal position that interference is only allowed where the decision of the body a quo was outrageous.

In the instant case, the court does not find anything outrageous in a dismissal of an employee who has been charged with an offence of dishonesty.

It is clear that, the G.E.C did not exercise its discretion properly and its order cannot be made to stand. It did so, on grounds which are not supported at law and this can not be sanctioned.

IT IS ORDERED:

That the appeal being with merit be and is hereby allowed with costs.

The G.E.C’s order reinstating and warning the Respondent is set aside and the decision of the Disciplinary Committee dismissing the Respondent is accordingly upheld.

KUDYA J

JUDGE – LABOUR COURT

Matsikidze & Mucheche, appellant’s legal practitioners

Guni & Guni, respondent’s legal practitioners