Sarah Kabiseni v Total Energies Marketing Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/…./25
HARARE, 15 NOVEMBER 2024
CASE NO. LC/H/1007/24
IN THE MATTER BETWEEN
LC/H/2025
LC/H/1007/24
---------




IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/…./25

HARARE, 15 NOVEMBER 2024                         		CASE NO. LC/H/1007/24

IN THE MATTER BETWEEN

SARAH KABISENI								APPELLANT

And

TOTAL ENERGIES MARKETING ZIMBABWE (PVT) LTD		RESPONDENT

Before the Honourable Kudya J;

For the Appellant           	- C.J. Mahora, Legal Practitioner

For the Respondent        	- T. Chiturumani, Legal Practitioner

KUDYA J:

This is an appeal against the decision of the disciplinary authority dated 27 August 2024. Background to the matter is that appellant who was in the respondent’s employment as an operations administrator, was accused of having engaged in conduct which was inconsistent with the dictates of her employment. She was therefore charged with a breach of Section 4(d) of the National Code. Seven accusations were levelled against her but she was acquitted on 4 and found guilty on the remaining three. The guilty verdict on the three resulted in her dismissal from employment. The three counts whish she was found guilty of are summarised as follows:-

From May 2023 to October she failed to prepare quarterly and yearly costs analysis. This was in breach of her job description.

She failed to update critical equipment status for fire extinguishers.

She failed to complete the reconciliation of all contractor statements within set timelines.

She is unhappy with the guilty verdict on the above described counts and the dismissal penalty. To that end she filed the appeal to this court, which appeal is the subject of this judgment. The employer is opposed to the grant of appellate relief.

The appeal grounds can be summarised as such:-

The disciplinary authority wrongly shifted the onus to prove what the appellant had not done. It shifted the onus from the employer to her by holding that the employer had not shown it the contents of the shared folder which she stated contained the extracts complained about.

The employee was wrongly found guilty of failure to obey a lawful instruction yet that was not the charge before her.

Appellant communicated the challenges that she was facing in fulfilling the requirement to complete the reconciliations.

The disciplinary authority erred to dismiss her yet the employer had not submitted any aggravation facts. The dismissal penalty was therefore inappropriate and had not been moved by the employer.

In the result, appellant prayed that, the appeal be allowed with costs, that the disciplinary authority decision be set aside and be substituted with an order reinstating her to her job on full pay and benefits or that she be paid damages if reinstatement is no longer tenable.

In response to the appeal, the employer stated in limine that the appeal be struck off the roll as the court lacked jurisdiction to entertain same and because it contained incompetent relief.

On the merits, the employer maintained in summary that:-

The employee was properly found guilty on a balance of probabilities as regards the extracts. The employee is the one who alleged that the extracts were contained in a shared folder, so it was incumbent upon her to have the folder opened and the contents assessed by the authority.

Appellant was properly found guilty of not updating the critical equipment status. She conceded that she had been given such an instruction. Her failure to follow it meant she disobeyed the instruction.

Appellant communicated the challenges she was facing but this way after the deadlines she had been given.

Penalty was the employer’s discretion. Appellant’s misconduct went to the root of her employment so aggravation aside, dismissal was called for.

In the result the respondent prayed that the appeal be dismissed with costs.

On the date of hearing the appeal, the parties motivated both the points in limine and the appeal merits together. The court ruled that it would rule on both at the same time. Its reasons for saying so are below:-

Jurisdiction

Section 31 of Statutory Instrument 11 of 23 states the following “… Notwithstanding anything to the contrary in an employment Code at the instance of any party aggrieved “MAY” appeal to a labor officer with 30 days of the conclusion of the proceedings --------” It is important to read the proviso together with Section 92 of the Labor Act which sets out that “A person aggrieved by a determination made by under employment code may…. appeal to the Labour Court.”

It is clear that, there is a mismatch within these 2 provisions. It is settled that where a simple grammatical interpretation of legislature would lead to an absurdity the court can use the interpretation of the legislative intent to decide or issue. See Tapera v ZERA SC30/20.  It is clear from the way “MAY” is embedded in the amendment proviso that the legislature intended to give a party the liberty to either go to the Labour Court directly or through the labour officer. See also Tamanikwa v ZIMDEF SC73/17. The point in limine vis jurisdiction being without foundation should fail.

Appeal grounds not on  law but fact

It is settled that factual decisions can be appealed as long as they meet the threshold of gross unreasonableness. See Hama v NRZ.1996(1)ZLR664. There is nothing remiss on the challenges made in the case under discussion, as their resolution if it is concluded that the decision of the issues was grossly unreasonable the appeal test would be met. The point in limine being without merit is dismissed.

Particulars of  portion  of the appeal

The respondent says the appeal does not state which parts of the decision are on appeal. The appeal grounds stated above show clearly the issues which the appellant has misgivings about. The point being without merit is dismissed.

Irregular relief

Appellant prayed that, on the success of her appeal the disciplinary authority decision be set aside and that she be reinstated. There is a typo error on the prayer about appellant instead of the accused employee. All these are semantics not dispositive of the matter on the merits. See  Mapondera and 55 Others v Freda Rebecca mine Holdings SC81/22. The point in limine is without merit so it is dismissed.

On the merits plane, the court noted the following:

Extracts

The record is replete with evidence that the employee stated for a fact that she had done the extracts and said such were contained in a shared folder. Such a folder was not opened for the disciplinary committee to assess the contents despite appellant’s promise to have that opened during her defence. Such contents were never opened to the extent that they remained locked up in the employee’s head. She had made an averment which she had to confirm by exhibiting the contents of the folders. She did not do so to the extent that, there is no shifting of the onus that she complains about. This ground being without merit is dismissed.

2. Critical Equipment

The record is replete with evidence that such was not updated. The argument about whether or not it was a lawful order is neither here nor there. The record shows that appellant at first was of the view that she was not duty bound to do the updates but later decided she had had to do so. Once she decided to do so then she had to. No amount of hiding under the excuse of wilful disobedience can excuse her failure to do the updates. She fell foul of her duty to advance her employers’ interests. See ZB Bank v Masunda SC48/16. There is therefore nothing grossly irregular on the disciplinary authority finding as it did in this regard. This ground thus fails.

Reconciliations

These were admittedly not done and the record shows clearly that the excuses were given post the dates when they were due. The ground has no foundation so should fail.

Penalty

It is settled that penalty is the employer’s prerogative. See Nyawasha v Circle Cement SC 60/03.The fact that, the employee did not submit in aggravation does not lessen the employee’s blame worthiness.  Even for technically minor infractions dismissal can be concluded to be merited See Innscor Africa v Chimoto SC 6/12. The penalty ground being without foundation should fail.

In the result, all the appeal grounds being without merit should fail.

IT IS ORDERED THAT:

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Muvingi and Mugadza-                                            Appellant’s Legal Practitioners

Chiturumani Law Chambers-                                   Respondent’s Legal Practitioners