Sydney Machiwenyika v ZB Life Assurance

IN THE LABOUR COURT OF ZIMBABWE                  JUDGMENT NO. LC/H/16/2013
HELD AT HARARE ON 14 NOVEMBER, 2012                  CASE NO. LC/ H/80/2012
In the matter between



SYDNEY MACHIWENYIKA                          –               Appellant
And

ZB LIFE ASSURANCE                                -           Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - In person
For Respondent     - N.Moyo


MATANDA-MOYO, L.

      This is an appeal from a decision of the Chief Executive Officer of

Respondent dismissing Appellant from employment.           Appellant was dismissed

after having been found guilty of gross incompetence and neglect of duty in

violation of item 3 section C to Annexure 11 of Respondent’s Code of Conduct.



      The brief facts are that Appellant was employed by the Respondent as an

Individual Life Administration Clerk.   His duties included attending to policy

holders.   Appellant failed to attend to queries which had been raised by a

certain policy holder refered to him by a colleague Molin Taruza. The query was

sent on 4 November 2011. On 24 November 2011 a reminder was sent to

Appellant by the said Molin Taruza through the Customer Services Manager but

still Appellant failed to act. On 30 December 2011 the said client caused the

issue to be published in the Standard Newspaper.
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      Appellant also failed to act on queries raised by another customer on 13

December 2011 on the value of her surrendered policy.

      Appellant was charged with gross incompetency and neglect of duty

arising out of the two incidents.         He was found guilty and dismissed from

employment Appellant appealed to this court on the following grounds;



   1) That Appellant was denied the right to bring witnesses to the hearing.

   2) That the disciplinary hearing erred in ignoring the fact that there was a

      critical shortage of staff a fact supported by an audit report.

   3) That the disciplinary committee erred in ignoring the fact that Appellant

      was being victimized by the Customer Services Manager.

   4) That the disciplinary committee erred by adding a warning penalty from a

      hearing held on 30 December which was irrelevant.



    Appellant submitted that the disciplinary committee denied him the

opportunity to bring witnesses to the hearing. Page 21 is a letter to Appellant

from Respondent titled


      ‘NOTICE OF INTENTION TO TAKE DISCPLINARY ACTION AGAINST YOU’



The letter advised Appellant to attend a disciplinary hearing on 9 January 2012

at ZB Life Towers. The last sentence of the letter read;


      “You are entitled to representation by a worker representative of your choice and you many
      call witnesses to the hearing”



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   The above sentence advised Appellant to bring witnesses to the hearing.

Appellant’s assertion that he was refused the right to call witnesses’ is therefore

not supported by the evidence on file. From the notification letter Appellant was

aware of his right to bring witnesses to the hearing.



   Again on page 15 of the record, the second paragraph Appellant requested

to call witnesses in mitigation. Paragraph 5 reads :-
      ‘----------. However in mitigation he claimed that he was not the only one making mistakes
      -------. He claimed he had witnesses to that effect. The panel noted and concluded that it was
      not necessary to call a witness over the issue since he had admitted being incompetent.”


   Witnesses are only called when their evidence is relevant to the issues in

question. As stated above Appellant’s witnesses intended to testify that others

were also making mistakes. The panel cannot be faulted for refusing the calling

of such witnesses.       Such evidence could not assist the matter any further.

Appellant failed to prove that he was denied the right to call witnesses and that

ground of appeal fails.



   Secondly Appellant argued that the disciplinary hearing erred in failing to

give due weight to the fact that there was a critical shortage of staff-a fact

supported by an audit report. On page 14 of the record the Appellant on being

asked why he failed to deal with the issues referred answered that he was

overwhelmed by pressure of work. Critical shortage of staff is not specifically

mentioned in the papers except by implication. From a reading of the minutes

the issue was dealt with. On page 14 second paragraph from the bottom when

he had alleged that he had been given work which would take two weeks to




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compile but given a day’s deadline it was found that the work required one day.

I am satisfied that the issue was dealt with.



   Appellant also submitted that the committee ignored the fact that he was

being victimized by the Customer Services Manager. Under paragraph 6.0 on

page 15 the committee noted that;


   ‘The Hearing Committee did not find any evidence in support of the defendant’s allegations of
   victimization and unfair distribution of work within the department. It was found that the work
   distribution was done by members of staff and not the complainant”.



There is therefore no evidence that the issue of victimization was ignored. On

the contrary, there is evidence that it was dealt with.                  The allegation was

dismissed for want of evidence.



      On the aspect of the conviction, Appellant did not deny the charges but

explained the reasons thereof. The reasons were relevant vis-à-vis mitigation.

Appellant admitted to not attending to the said queries. The conviction was

therefore proper.        Appellant however challenged the penalty of dismissal.

Appellant submitted that the dismissal penalty was imposed after the

Respondent added a warning of 29December 2011 of absence for two days.

Such warning should not have been added since it was not relevant to the then

charges.



      Respondent admitted that the warning in question was for absence from

duty without permission that was held on 20 December 2011. It is correct that

the recommended penalty for the offence that Appellant committed was a final

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warning valid for twelve months. That is the penalty provided for by the Code.

However the committee found of aggravation the fact that Appellant was

serving a warning on the charge of 20 December 2011. The Committee also

found that Appellant was used to poor work performance as evidenced by the

meeting of 31 March 2011.



      Let me deal with the issue of the warning of 29 December 2011. On page

24 of the record is such notice. The second paragraph reads;


             ‘You are therefore given a written warning valid for six months. If you commit a
             similar offence within the next six months, this penalty will be added on to that

             offence’s penalty’’



      From the words underlined above it is clear that the warning could only

be added if Appellant committed a similar offence. Gross incompetence and

neglect of duty are not similar offences to absence from duty without

permission. Such warning could therefore not be added to the present penalty.

Respondent also considered that poor work performance was not new to the

Appellant and referred to a meeting which had been held on 31 March 2011

discussing challenges faced by Appellant in executing his duties.                  However

Appellant was told to improve on his performance. The disciplinary hearing

correctly found that the penalty for the offence was a final written warning valid

for twelve months. It was the Human Resources Director who advised that

considering the written warning and the deliberations of the 31 March 2011

meeting the penalty appropriate was dismissal. The fact that Appellant had

been underperforming was aggravatory and it was proper for the disciplinary

committee to look at Appellant’s past performance. Appellant had been advised

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through the meeting of 31 March 2011 to start putting effort into his work.

Corrective measures were taken to ensure that Appellant improved on his

performance.



      The question of penalty is the prerogative of the employer. Codes of

conducts provide mere guidelines on penalty.           The disciplinary committee

exercised its discretion on the issue of the penalty. Without evidence of abuse

or improper use of such discretion, I find no reason to interfere with the penalty

imposed.



Accordingly the appeal is dismissed.




Mawere and Sibanda – Appellant’s Legal Practitioners




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