Tendai Muzondo v Courier Connect

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/202/2020
HARARE, 24 MARCH 2020
CASE NO. LC/H/187/19
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO. LC/H/202/2020

HARARE, 24 MARCH 2020 			         CASE NO. LC/H/187/19

AND 11 SEPTEMBER 2020

In the matter between:

TENDAI MUZONDO						APPELLANT

AND

COURIER CONNECT						RESPONDENT

Before The Honourable KUDYA J

For the Appellant			T. Marume (Legal Practitioner)

For the Respondent 			C. Kwaramba (Legal Practitioner)

KUDYA J:

This is an appeal against the decision off the respondent employer’s disciplinary committee which found the appellant employee guilty of conduct inconsistent with the conditions of her contract in contravention of section 4 (a) of the Model Code. Events leading to the appellant’s dismissal were that during a management and board meeting she shouted obscenities and banged the table thus putting the meeting into disrepute.

Appellant concedes banging the table, exiting the meeting once during the presentation of her report but denies uttering obscenities in the meeting. Her excuse is that she felt unjustifiably linked to an anonymous letter which was said to resonate with her failure to include in her report certain projects which needed to be reported on.  In conclusion therefore her emotional behaviour was a simple reaction to an unjustifiable attack on her but not at all calculated to disrespect the meeting or to cause commotion.

On the other hand, the employer is adamant that the banging of the table, finger pointing and raised voice as well as utterance of obscenities which some members said they heard being hurtled all spoke to disrespectful conduct in flout of the decorum expected of the position occupied by the appellant.

It is settled law that an appellate tribunal can only upset the decision of a trier of fact it can be demonstrated that there was gross unreasonabless in the exercise of such discretion. See Hama v NRZ 1996 (1) ZLR 664. It has also been repeatedly underscored that it is not the duty of the appellate tribunal to substitute its discretion for that of a trier of fact See Nyahondo v Hokonya and others 1997 (2) ZLR 475 (SC).

Applying the law discussed in the above cases to the facts of the case at hand it is clear that indeed appellant reacted in an unbecoming manner by banging the table and speaking in loud tones to express her displeasure about what was being deliberated and how she felt unjustifiably accused. It is granted that there is no consensus from all witnesses about the verbose of the alleged obscenities. Some do say they heard the obscenities, some say they did not. Besides, appellant concedes that there was no bad blood between her and the witnesses that they could make up a story against her. It is also settled law that the standard of proof in such cases is proof a balance of probabilities see ZESA v Dera 1998 (1) ZLR 500 (SC).

Applying that standard it is clear that there is no cogent basis for this court to hold a different view from the one arrived at by the committee basing on the totality of the evidence presented before it. In the result the appeal cannot succeed on the question of the verdict.

As regards penalty, it is settled that such is in the discretion of the employer. See Nyawasha v Circle Cement SC-10-03. In the case at hand if the employer viewed the misconduct as so serious that it could not retain a working relationship with appellant this court has no good reason to hold otherwise. Granted there were also emotional episodes from the other members in the meeting but that does not detract from the appellant’s blameworthiness. Her long clean record alone cannot suffice for this court to upset the dismissal penalty. See Chimoto v Innscor SC-06-12. In the ultimate the appeal is without merit on penalty and it should fail.

IT IS ORDERED THAT:

1.	The appeal being without merit in its entirety it be and is hereby dismissed.

2.	Each party bears own costs.

Marume & Furidzo, Applicant’s Legal Practitioners

Mbidzo, Muchadehama & Makoni, Respondent’s Legal Practitioners