Telone (Private) Limited V Peter Mabvanya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/199/2014
HARARE, 13 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/199/2014

HARARE, 13 MARCH 2014&				  CASE NO LC/H/222/2013

28 MARCH 2014

In the matter between:

TELONE (PRIVATE) LIMITED				APPELLANT

Versus

PETER MABVANYA					RESPONDENT

Before The Honourable L Kudya   :   Judge

For the Appellant					J Dondo   (Legal Practitioner)

For the Respondent				S Chako (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the National Hearing Committee (“N.H.C”) which set aside the dismissal penalty which had been meted out on the respondent by the Regional Hearing Committee (“R.H.C”).

Facts of the case are that the respondent who was in the employ of the appellant was brought before the R.H.C on allegations of breaching the appellant Code of Conduct. He was said to have contravened category 3 (8)(viii) and category 4 (23) respectively. On 3 (8)(viii) he was said to have acted contrary to his job expectation by conducting a sale and trying to fix telecommunication devices at a third party’s premises to the detriment of the appellant who was then approached by the third party with the telecommunication complaint.

In respect of 4 (23) he was said to have failed to adhere to set standards as he ventured to carry out the technical duty to fix the telecom notwithstanding the fact that he was not a technician.

He pleaded guilty to charge 3 (8) and not guilty to 4 (23) but was found guilty of both charges by the R.H.C. which consequently dismissed him from work. He appealed to the N.H.C. which set aside the conviction on charge 4 (23) and confirmed the guilty plea on 3 (8). In the result the N.H.C. then went on to set aside the dismissal penalty and substituted it with a penalty of suspension from duty for two and half months without salary from 19 February 2013 to 30 April 2014. Aggrieved by this decision the appellant has now appealed to the labour court. It is the appeal against the two and half month suspension decision by the N.H.C. which is the subject matter of the instant judgment.

The grounds of appeal are as follows:

N.H.C. misdirected itself and did not apply its mind to facts before it when it set aside the 4 (23) conviction yet there was evidence to demonstrate the conviction’s propriety.

N.H.C erred to set aside dismissal penalty on charge 3 (8) yet there was no basis to interfere with the dismissal penalty which had been handed down by the R.H.C. In the result it prayed that the N.H.C. decision be set aside and the decision dismissing the respondent be confirmed.

In response to the appeal, the respondent maintained that:

N.H.C. did not err to set aside the 4 (23) conviction as it had powers to do so if satisfied that there was need to substitute the R.H.C. decision. It to that extent applied its mind correctly and since dismissal is not obligatory the R.H.C should not have resorted to that lightly.

The N.H.C. had discretion to interfere with the penalty and the substituted penalty is legally sound and sensible hence no basis for the appellate court to interfere with it. The respondent therefore prayed that the N.H.C decision be upheld and that the suspension penalty be made to stand.

Powers of the appeal court in circumstances like those presented by the instant case are clearly set out in the case of Attorney-General vHawman 1988 (2) ZLR 402 (SC) and the case of Nyahondo v Hokonya&Ors 1997 (2) ZLR 475 (SC).

Applying the legal principles in the above cases to the facts of the instant case two main questions remain for decision. Firstly the question is whether in setting aside the 4 (23) conviction the N.H.C can be said to have grossly misdirected itself thus warranting the appeal court’s interference. Secondly the question is whether by setting aside the dismissal penalty on the remaining 3 (8) charge the N.H.C. can be said to also have acted outrageously or in defence of logic to the extent that no reasonable tribunal placed in its shoes would have found as it did. Each of the grounds will be addressed in turn.

Ground 1

It is important to note on this ground that the basis upon which the R.H.C. had concluded that the respondent had acted contrary to set procedure in contravention of category 4 (23) was that he had set out to do the duty of a technician and consequently he had to be adjudged as such. The fact that his job description did not relate to technician duties was neither here nor there as he held self out to be one with the requisite skill by embarking on the technician duty so the measurement that had to apply to him was the technician yardstick.

To the contrary the N.H.C noted that because he was no technician and that the employer could not produce documentation setting the technician standard as applicable to him he thus should not have been so convicted. It is the court’s view that the N.H.C. grossly misdirected itself to reason as such if one looks at its reasoning against that given by the R.H.C. It was therefore clear that the N.H.C had no good argument/basis to interfere with the R.H.C findings in this respect. To that extent, the N.H.C decision has to be tampered with as it goes contrary to the facts on the record thus rendering it open to attack. This first ground therefore being merited should stand.

Ground 2

It is now settled law that penalty is the discretion of the employer and where the employer takes a serious view of the infraction there have to be cogent grounds to interfere with the penalty. In the instant case a reading of the substituted penalty clearly speaks to the N.H.Cs substitution of its own discretion to that of the R.H.C. which is not permitted at law. See Howman (supra).

It is admitted that dismissal has to be a last resort option. See N E I Zimbabwe v Mawira SC-24-06 but as stated earlier the conclusion on the gravity of the infraction is within the domain of the employer even with strict adherence to the provisions of See 12 (B) in mitigation. There is nothing on record which the N.H.C. used to conclude that only aggravation factors on themisconduct were considered by the R.H.C yet both features were on record.

The court is satisfied that the interference by the N.H.C was not sanctioned at law as it had no cogent basis and it cannot be made to stand. This ground also being merited should succeed.

IT IS ORDERED THAT

Appeal being with merit in its entirety be and is hereby upheld.

The N.H.C decision is set aside and the R.H.C is consequently confirmed.

Each party bears own costs.

Dondo& Partners, appellant’s legal practitioners

Mudambanuki& Associates, respondent’s legal practitioners