Southern African AIDS Trust v Maxmillan Mugabe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/213/2016
HARARE 23 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/213/2016

HARARE 23 MARCH 2016				       CASE NO. LC/H/994/15

AND 8 APRIL 2016

SOUTHERN AFRICAN AIDS TRUST					Appellant

MAXMILLAN MUGABE							Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Mr E.T. Moyo, Attorney

For Respondent		Mr O. Shava, Attorney

MUSARIRI, J:

On 15th October 2015 at Harare, Arbitrator M. Kazembe issued an arbitration award.  In terms thereof he dismissed Appellant’s appeal against the penalty imposed on Respondent by the disciplinary authority.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

The pertinent portion of the grounds of appeal complained that,

“a.	The record demonstrates that the Respondent had been convicted of a serious act of misconduct which goes to the root of his employment contract and therefore justified dismissal in the first instance, a relevant fact which either the disciplinary authority failed to take into consideration at all or failed to give due weight, and

b.	The disciplinary authority had been influenced by an irrelevant consideration in placing emphasis as she did on the naivety of the complainant, an inconsequential fact altogether.”

Respondent’s case was succinctly set out in his Heads of Argument thus,

“1.	The arbitral award is flawless.  It cannot be rather challenged in any way.

2.	The appellant failed to demonstrate that the disciplinary authority had exercised her discretion injudiciously and the Arbitrator-a-quo, as he ought to have done, correctly refused to set aside the penalty imposed by the Disciplinary Authority.”

The incident in question occurred at a workshop in Masvingo.  In the evening Respondent and a friend visited complainant at her hotel room.  The friend departed leaving complainant with Appellant.  She asked him to leave but he did not do so.  She got into bed and turned her back on him.  He then stripped and entered her bed.  She resisted and told him to leave.  Thereupon he dressed and after a few words left the room.  He was charged with misconduct on these facts.  The matter was heard by Advocate J Wood acting as the Disciplinary Authority.  She found him guilty of conduct inconsistent with the terms of his employment contract.  After considering mitigating and aggravating factors she recommended as penalty a final written warning, a suspension without pay for one month and course of counseling by a person nominated by the employer.

What weighed with Advocate Wood appears from the following excerpt from her recommendation.

“The respondent may be an advocate for women’s rights but first and foremost he is a man and it is by no means unusual for a man’s actions to be controlled by his hormones, rather than his head, hence the need for workshops such as that in which the two parties were participating.  The respondent was obviously attracted to the complainant-he had invited her out the previous evening and remained in her room when Innocent left.  She herself admitted that he might have been under the impression that she was not displeased with his presence in her room that evening so he may have seen her action in getting into bed as an invitation to join her.  It was certainly a temptation which the respondent was clearly unable to resist but, in his situation, he should have known better than to strip and jump into bed with the complainant without ascertaining if it was actually her wish that he did so.  However, in respondent’s favour is the fact that he realized his mistake and left without offering any real resistance.”

I agree entirely with the authority’s summation of the misconduct.  This was a serious offence which was mitigated by the mixed signals complainant gave.  More importantly Respondent desisted from pressing his luck as soon as he realized that complainant was not interested.  He did not use any force or threat thereof.  Being a once-off occurrence I am satisfied that a penalty less than dismissal was warranted.  An act of serious misconduct warrants dismissal but it is not every such act which deserves the drastic penalty of dismissal.  This case is an example of one of those cases where dismissal is unwarranted.  The authority exercised her discretion on penalty in favour of the employee.  I accept that this is a border-line case and as such the exercise of discretion may go either way.  Thus there is no basis for interfering with the authority’s determination and by extension the arbitrator’s award.

Cases galore where cited to the effect that Courts should not interfere with the employer’s discretion on penalty.  But the employer delegated its discretion to the disciplinary authority.  Once exercised, the authority’s discretion cannot lightly be interfered with.  That is how those cases apply in casu.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J.U.D.G.E.