Tariro Mugawuri v DZIMBAHWE HOSPITALITY GROUP

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/10/2022
HELD AT HARARE ON 25 NOVEMBER 2021
CASE NO. LC/H/331/21
AND 14TH JANUARY 2022
JUDGMENT NO. LC/H/10/2022
CASE NO. LC/H/331/21
---------




IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/10/2022

HELD AT HARARE ON 25 NOVEMBER 2021		CASE NO. LC/H/331/21

AND 14TH JANUARY 2022

In the matter between

TARIRO MUGAWURI							APPELLANT

AND

DZIMBAHWE HOSPITALITY GROUP					RESPONDENT

Before The Honourable Makamure J

For the Appellant     : Mr M Magodi (Trade Unionist)

For the Respondent  : Mr M Mugomeza (Legal Practitioner)

MAKAMURE J:

[1]	The appellant was employed as a Restaurant Supervisor by the respondent. She was dismissed from employment following disciplinary proceedings. Aggrieved by that outcome she appeals to this Court on the following grounds and I quote:

“1. The court a quo   misdirected itself on the fact (sic) in holding that the Appellant was guilty of misconduct (sic) inconsistent with the contract of employment.

2. The court a quo erred at law by finding the Appellant guilty of a matter that had no evidence or proof. If the complainant was aggrieved should have raised a grievance (sic).

3. The court a quo erred at law by finding that the Appellant was guilty in a matter that did not involve the employer. Neither was the Appellant guilty against the employer.

4. The court a quo failed to appreciate that the Chairperson of the Disciplinary Committee was biased to the extend (sic) of holding himself being a complainant, the judge and jury in the same matter.

5. The Court a quo erred at law by recommending dismissal and if this matter is handled by a reasonable person would arrive at a different verdict (sic).”

[2]	The Appellant was suspended from duty.  She was and charged with violating paragraphs 4(a) and 4(f) respectively, of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006 (S.I.15/06), that is:

Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; and

f) Gross incompetency or inefficiency in the performance of his or her work.

The facts giving rise to the charges were set out by the by the respondent as follows (page 19 of the record).

“1.1.	On the 7th April fifty United States dollars in your care went missing.

On 28th May 2021 you incited Abigail Ngwenya to falsify illness in particular a headache and seek leave days. This did not sit well with Abigail and she informed the manager.

On the 29th May 2021 you absconded from duty without prior nor any approval of leave or off;

Around the same date, you instructed the gardener to do housekeeping work without the express or implied authority to give such instruction. Florence Mutirwara who was the acting manager was not aware of such an arrangement”.

[3]	A disciplinary hearing was conducted. At the conclusion of the disciplinary proceedings the appellant was convicted of having committed any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of her contract of employment. She must have been absolved of the other charge. This is being said in view of the fact that in the letter of dismissal dated 16th June, 2021 there is no mention of the findings with respect to the other charge

[4]	In support of the case against the appellant there is on record a complaint or statement by one Abigail Ngwenya (Abigail). She stated that the Appellant asked her to feign illness in the form of a headache and then take some time off duty. Abigail was not amused by the suggestion.  However, it would appear that the Appellant insisted to the extent that Abigail felt harassed by the insistence. This resulted in Abigail advising the appellant that she had reported her (the appellant) to the superiors. That is when the Appellant stopped harassing Abigail. The minutes record that   “T. Mugawuri even admitted that she only stopped harassing A.Ngwenya when A.Ngwenya mentioned that she had called Mr J Kahwema who said she cannot go off.”  More evidence came from one Headman Madhiriza (Madhiriza).Madhiriza’s report is to the effect that Appellant instructed him (Madhiriza) to perform Abigail’s duties on the pretext that Abigail had fallen ill and had asked for time off. Madhiriza did not perform the duties in question because he said he found out that Abigail had not made such a request.

[5]	One Yeukai Ethel Matizha was also in the respondent’s employ. She made a report to the effect that she had taken some time off work. Upon her return Abigail made a report to her to the effect that the appellant had asked her to make a false claim of illness and take some time off. It is Yeukai who then confronted the appellant. Subsequently disciplinary proceedings were conducted against the appellant leading to the appellant’s conviction.  As noted earlier it is against that decision which she appeals.

[6]	Parties addressed the Court. Mr Magodi who represented the Appellant maintained that there was no wrongdoing on the part of the appellant and that she is entitled to getting her job back without loss of salary and benefits or alternatively that she be awarded damages should reinstatement be no longer possible. Mr Magodi made submissions to do with all the allegations levelled against the appellant submitting that there was no evidence in support thereof.  He maintained that position and argued, among other things, that what happened between the appellant and Abigail had nothing to do with the respondent. He also argued that if Abigail was aggrieved by what the appellant told her to do, she should have raised a grievance.

[7]	Mr Mugomeza who appeared on behalf of the respondent argued that there was sufficient evidence against the appellant.  It was further submitted that the employer /employee relationship between the parties had been adversely affected. This resulted in the employer losing trust in the appellant. Mr Mugomeza submitted that the appellant through her conduct, breached one of the fundamental duties of an employee, which is to further the employer’s business interests, by inciting deceit on the part of other employees. One of the cases Mr Mugomeza cited in support of this argument is Shades of Black Cosmetics (Private) Limited SC 115/04 where the Supreme Court stated that:

‘It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly. Any behaviour on the part of the employee which is wholly inconsistent with that relationship would render the continuance of that relationship untenable and would, undoubtedly, constitute a repudiation of the contract of employment by the employee.’

[8]	In her grounds of appeal the appellant attacks the conviction saying that her conduct was not inconsistent with the express or implied terms of her contract of employment. The evidence which is on record, particularly the evidence of Abigail and Madhiriza shows that the appellant unsuccessfully incited a junior worker to make a false claim of illnesss so that the junior worker would take time off work. The aim of the incitement was to create an impression on the bosses that there was a shortage of staff.

[9]	The appellant held a supervisory role. She was obliged to lead by example. Inciting a junior employee as she sought to do can hardly be called exemplary. On the contrary the appellant’s conduct was damning and outrageous. Her duty was to supervise and not to mislead both the junior employees and the superiors. She intended to mislead Abigail by inciting. This conduct was obviously going to give the wrong impression to the superiors that there was staff shortage when that was not the case. The superiors were obviously also going to believe that Abigail was sick when this was not true. Appellant had the temerity to insist that Abigail raise a false alarm of illness. She was only deterred after Abigail had advised that she had reported her to the superiors.

[10]	In her defence she says that it was Abigail who was ill and she (Appellant) felt sorry for her. This is in direct conflict with Abigail’s report as corroborated by Madhiriza.  The appellant also avers that the issue was between her and another employee and as such the employer had no business getting involved. Nothing could be more preposterous. Both the appellant and the said Abigail were in the employ of the respondent. Both were obliged to ensure positive and honest contribution towards the respondent’s business. There was a disagreement between the two. When conflict arises between workers at the workplace it is absolutely the employer’s duty to ensure that it is resolved. In the present case the conflict was not just between the two workers. It was conflict meant to negatively affect the workplace. The conflict had everything to do with the respondent. As earlier noted, even had the conflict between the two employees not necessarily been employment related, but happened at the workplace and in the full glare of other employees, and it became known to the respondent, the respondent could not ignore it.  Respondent had to be involved.

[11]	The appellant questions the sufficiency of evidence. As the record shows, the appellant incited a junior worker. The evidence of the Abigail has a ring of truth about it. The appellant’s version on the other hand sounds improbable. Why would the appellant only stop pestering Abigail after Abigail advised her that her conduct had been reported? It appears as if the Appellant had pushed Abigail to the edge to the extent that her only option was to make a report and then make sure that she advised the appellant of the same. That worked and appellant stopped harassing her. This is sufficient proof that the appellant was forced to stop the incitement only after she had been reported to the superiors. That is evidence which on a balance of probabilities proves that the appellant committed the offence in question. I can do no better than refer to the case of ZESA v Dera SC 79/98 where the Supreme Court stated as follows:

‘It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard should be anything other than proof on a balance of probabilities ‘.

[12]	The respondent discharged the onus required of it. The Appellant conducted herself in a manner which is inconsistent with the express or implied terms of her contract of employment. Such conduct went to the root of the employment relationship. In Standard Chartered Bank Zimbabwe Limited v Michael Chapuka SC 125/ 04 the Supreme Court held that:

‘Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of employment goes to the root of the relationship between the employer and employee giving the former prima facie right to dismiss the latter.’

[13]	The Appellant also attacks the propriety of the penalty. It is a settled position in this jurisdiction that where an employer has exercised their discretion to dismiss, an appellate court has no right to interfere. The question of what the appropriate penalty is, is the province of the employer. In the case of Circle Cement (Private) Limited Chipo Nyawasha SC60/03 the Supreme Court stated that:

Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.’

[14]	It is clear that in the present matter the employer took a serious view of the misconduct committed by the appellant and penalized her with dismissal. As noted earlier on, this is a discretion which this court is not entitled to interfere with.  (See Zimbabwe Broadcasting Corporation (Pvt) Ltd v Irvine Mhlanga SC 58/21; Hama v NRZ 1996 (1) ZLR 664 (S)).

[15]	The appellant raised the question of bias. Bias must be proved. Further, this is a ground for review and not appeal. In any event, this ground was not raised during the course of the initial hearing. It cannot be raised now. An issue which was not determined by the lower court or tribunal cannot be raised on appeal. This is trite. (See Blue Track Investments and Four Others v Nedbank Zimbabwe Limited SC 53/21)

[16]	In view of the foregoing, I am persuaded to agree with Mr Mugomeza. There is no merit in all the grounds of appeal. The appeal can only fail.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

CHINAWA LAW CHAMBERS, Respondent’s Legal Practitioners