Telone V T. Mutambisi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/503/14
HARARE ON 12TH MAY, 2014
CASE NO. LC/H/460/12
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/503/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/503/14

HARARE ON 12TH MAY, 2014			                         CASE NO. LC/H/460/12

AND 1st AUGUST, 2014

In the matter between

TELONE			–	APPLICANT

And

T. MUTAMBISI		-	RESPONDENT

Before The Honourable E. Makamure J.

For Applicant    :	Mr J. Dondo (Legal Practitioner)

For Respondent :	Ms E. Drury (Legal Practitioner)

MAKAMURE J,

This is an application for leave to appeal a judgment of this Court to the Supreme Court.

The brief facts of the matter are as follows. The applicant dismissed the respondent from its employ following a hearing conducted by the Regional Hearing Committee. In terms of the applicable Code the National Hearing Committee has the power to vary a decision from its lower tribunal. The National Hearing Committee exercised its discretion and varied the dismissal to a Final Written Warning. This aggrieved the applicant and it appealed to this Court on the basis that the National Hearing Committee misdirected itself by varying the sentence and that it ought not to have interfered. This Court dismissed the appeal on the basis that the National Hearing Committee (NHC) forms part of the domestic remedies. As such therefore it would be inappropriate for the Court to interfere with the domestic processes.

The NHC was empowered by the applicable Code to alter a penalty. Further in view of authorities referred to, an employer has the discretion to impose a different penalty even if the offence committed warranted dismissal (see Zikiti vs. United Bottlers 1998 (1)( ZLR 389).

It is the view of the applicant that a different court faced with the same facts would make a different finding. On the other hand, the respondent’s position is that there was no misdirection on the part of the NHC. It was also submitted that there has been no gross misdirection on the part of this Court when it arrived at its decision.

The issues raised by the applicant in this application were sufficiently dealt with in my judgment. After assessing argument from both parties, it is my considered view that a different Court faced with the same facts will not reach a different decision.

In the circumstances the application fails.

Accordingly it is ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed.

Dondo and Partners – Applicant’s legal practitioners

Honey and Blackenberg – Respondent’s legal practitioners