Tendai Njenje v Grand Auto Premier

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 3
JUDGMENT NO. LC/H/39/25
CASE NO. LC/H/1246/24
FEBRUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 3 FEBRUARY 2025

JUDGMENT NO. LC/H/39/25 CASE NO. LC/H/1246/24

IN THE MATTER BETWEEN:-

TENDAI NJENJE	APPELLANT

AND

GRAND AUTO PREMIER	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. K. Guteni

With Mr. T. Humbarume

For Respondent	Mr. N. Masuku

With Mr. G.M. Nyangwa

MURASI J.,

Appellant was employed by the Respondent as a panel beater. Allegations of misconduct were levelled against the Appellant which resulted in him being brought before a Disciplinary Committee. That Committee found Appellant guilty and recommended his dismissal. He appealed to the Appeals Officer. The Appeals Officer upheld the decision of the Disciplinary Committee and dismissed his appeal. Appellant has approached this Court for relief.

Appellant’s sole ground of appeal is as follows:

“The Appeals Officer erred in upholding the decision of the Disciplinary Authority and failed to consider that the charge which appellant was summoned for a hearing does not warrant dismissal.”

Appellant’s Submissions

Mr. Guteni submitted that the basis of the appeal was the failure of the Appeals Officer to determine that the decision of the Disciplinary Committee was not in keeping with the provisions of the Respondent’s Code of Conduct. He further submitted that the Code provided for a Final Warning

for the charge Appellant was facing. Mr. Guteni added that Statutory Instrument 35 of 2011 clearly provided for this situation. In seeking clarifications, the Court asked Mr. Guteni the following question:

“Court:	You do not dispute the fact that Appellant is guilty of the charges? Answer:   We don’t dispute that.”

This stance was later changed by Mr. Humbarume who averred that from the beginning, Appellant always maintained his innocence.

Respondent’s Submissions

In response, Mr. Masuku stated that the appeal was wrong in that it was premised on a wrong interpretation of the law. He submitted that the Appeals Officer had dismissed the appeal clearly stating that the misconduct went to the root of the employment contract. He added that Appellant did not address the findings made by the Appeals Officer. Mr. Masuku argued that the decision to dismiss an employee is that of the employer and that this could not easily be overturned unless there was evidence that the exercise of the discretion was irrational and unreasonable. To this end, he relied on the Mutangadura case SC 15/12.

Mr. Masuku further submitted that the ability of the employer to dismiss an employee is a common law right and cannot be altered by statute without the particular statute expressly providing for that. He added that the crux of the appeal was that the Respondent had not followed the provisions of the Collective bargaining Agreement which was not the correct position at law. Mr. Masuku also attacked the prayer sought by the Appellant as being incompetent as the substance of the appeal was that Appellant should have been given a penalty of Finala Warning. He stated that this was not found in Appellant’s prayer. He prayed for the dismissal of the appeal.

ANALYSIS

An appellate court will only interfere with the factual findings of a lower court if the findings are grossly unreasonable. An appellant has the onus to show that the factual findings of the tribunal a quo were so unreasonable as to warrant interference by the Court. In ZINWA v Mwoyounotsva SC 28/15, it was held as follows:

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in nits defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.”

In the hearing, Mr. Guteni conceded that Appellant was not fighting the guilty verdict, which was a finding made by the Appeals Officer in paragraph 6 of the determination. In paragraphs 8, 9 and 10, the Appeals Officer goes through the facts relating to the misconduct by the Appellant and the prejudice suffered therefrom by the Respondent. These findings remain uncontested by the Appellant. In paragraph 13, the Appeals Officer makes the following finding:

“After a thorough perusal and careful consideration of the record submitted, I found out that while section 4c of SI 35 of 2011 sets out the penalties applicable for the respective charges, the gravity of your case is so severe and goes to the root of the employment relationship.”

This is the crux of the finding in the appeal. The Appeals Officer gives a reason for departing from the provisions of the Code of Conduct. It is evidence that Appellant has not challenged this finding. The issue was brough to the attention of Mr. Guteni in the proceedings and he could not proffer any reason as to why this important factor was not challenged at all. In the present appeal, for the decision of the Appeals Officer to be reversed, it must be shown that the Appeals Officer committed an irregularity or misdirection, or that the manner in which the Appeals Officer exercised his discretion was so unreasonable as to vitiate the decision made. None of the issues I have alluded to were argued in this Court by the Appellant.

The Appeals Officer later relies on precedent in support of the decision that he made. I did not hear Appellant’s representatives stating that the precedent cited was not applicable or irrelevant to the determination of the matter. It is trite that what is not denied is taken to have been admitted.

This brings me to the prayer by the Appellant. Appellant’s song is that he should be at work having been given a Final Warning. As pointed out by Mr. Masuku, this issue is conspicuous by its absence in the pleadings and was not argued in the proceedings.

Having stated the above, it is my considered view that the appeal is devoid of merit and should be dismissed.

The following order is appropriate.

The appeal, being devoid of merit, is hereby dismissed.

Appellant to meet Respondent’s costs on an ordinary scale.

Zimbabwe Industrial Revolution Worker Federation-	Appellant’s representatives

MawereSibanda-	Respondent’s legal practitioners.