The Heritage School v Taurayi Tapfumaneyi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/149/2020
HARARE, 19 MARCH, 2020
CASE NO. LC/H/176/19
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/149/2020

HARARE, 19 MARCH, 2020			 CASE NO. LC/H/176/19

AND 3 JULY, 2020

In the matter between:

THE HERITAGE SCHOOL					APPELLANT

Versus

TAURAYI TAPFUMANEYI					RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:				V. Mukumba (Legal Practitioner)

For Respondent:				M. Muzaza (Legal Practitioner)

KACHAMBWA J:

This is an appeal against the decision of the National Employment Council

for the Welfare and Educational Institutions. The grounds of appeal are that;

1.	The appeals committee a quo grossly erred and erroneously misdirected itself in finding that Appellant ought to have proved that excessive force had been used rather than that extreme pain and discomfort had been felt.

2.	The NEC Appeal Committee grossly erred and seriously misdirected itself in ignoring the extant untested evidence to the effect that the assault by Respondent had caused the child extreme pain and discomfort. A fortiori,

the committee erred in finding that Appellant had relied only on the evidence of

the assaulted child.

3.	The Appeals Committee grossly erred by speculating on the motive of the child’s actions where such speculation could be dispelled by evidence.

The facts of the case are that the respondent was employed by the appellant as a teacher. On the 26th of November 2018, a pupil, Khanya Nyamaruwata bumped against respondent while she was running on some stairs at the school. The respondent got hold of her by the wrist and squized/twisted her wrist. He held her for sometime while he instructed her to go back and use another route. She refused. She cried out attracting attention from other members of staff. One Dingswayo came over. He asked the respondent to release the pupil’s hand. He also instructed the pupil to go back. Both complied. The respondent was charged of contravening the Welfare and Educational Institutions Code of Conduct Schedule 4: section 13 ie “Fighting or assault whilst on duty”. The allegations were that the respondent had “assaulted a school child by forcefully holding her hand in a manner causing her extreme pain and discomfort”.

The respondent was tried at the workplace and found guilty as charged. The appeal at the workplace failed. He successfully appealed to the NEC. The NEC held that,

“From the foregoing, the tribunal noted that the alleged misconduct is trivial and as such it cannot amount to an offense of assault as provided for in NEC Employment Code of Conduct. Further, the Committee noted that the charge preferred against the Appellant, “Fighting or assault whilst on duty” is inappropriate under the circumstances and as such it does not apply to the matter at hand. In this regard, the tribunal cannot make a finding of misconduct against the Appellant”.

Consequently the appeal succeeded hence the present appeal.

Ground No.1 The appeals committee aquo grossly erred and seriously misdirected itself in finding that Appellant ought to have proved that excessive force had been used

rather than that extreme pain and discomfort had been felt.

This ground of appeal is misleading on the “real” charge the employee faced. This is indeed caused by the appeal committee in that it paid attention to the equally misleading extra words; “causing extreme pain and discomfort. “The charge in terms of the code of conduct is merely one of “fighting or assault while on duty”. The allegations are the ones that added extreme pain and discomfort. The charge in its pristine state is simply one of fighting or assault whilst on duty. The issue of excessive force does not arise. Whether excessive force was used or not does not negate the charge. It will only be relevant on penalty. It could also be more relevant if one was raising the defence of “de minimis none curat lex ie the law does not concern itself with trivialities. It is not clear whether this is what the committee was alluding to when it said that;-

“………….the alleged misconduct is trivial and as such it cannot amount to an offence as assault as provided for in the NEC Employment Code of Conduct”.

The committee goes on to say that “…the charge ……..is inappropriate under the circumstances and as such it does not apply to the matter at hand. In this regard, the tribunal cannot make a finding of misconduct against the Appellant”.

It is not clear as to what the committee meant. However the committee found the appellant not guilty and reversed the conviction and penalty. What one may say is that the committee accepted that there was assault but of such a trivial nature that it is negligible, it is of such small magnitude such that it can be ignored. But one does not have to prove excessive force to prove that there was assault.

The respondent’s appeal to the Appeals Authority challenged the use of force causing extreme pain and discomfort. For that reason the use of force was brought to play. He also challenged the absence of medical evidence on the extreme pain and suffering. The NEC Appeals Committee seems to have extended the argument to the extent that the assault was so trivial that it should have been ignored, that it was too trivial to deserve a charge of misconduct.

While the assault may not have been proved to be severe by way of evidence there was no evidence to show that it was too trivial either, that it should be ignored. There is no such proof. There are no facts to that. Therefore unless there is other evidence elsewhere the charge of assault must stand. There is no need to interfere with the factual finding of an act of assault having been perpetrated on the child. What was not proved was it’s severity and that of the injuries. The infliction of pain is admitted.

The respondent goes on to claim a right to inflict this pain by way of disciplining the child. That being a teacher, both as a parent and school authority he had authority to inflict the pain as a disciplinary measure. The committee did not pronounce on this. However there is an implied acceptance that it would be misconduct if the assault is not negligible. The charge of assault should stand. There is no evidence that it was too trivial.

Therefore the issue of excessive force is rather misleading if taken as necessary to prove assault. One does not need excessive force. But the amount of force can be relevant if it is claimed that the assault was negligible so much so that the charge should be ignored. The facts proved do not talk to excessive force and do not talk of the level of force used either. There are no grounds to say that the assault was too trivial to warrant a charge.

The ground of appeal as worded is neither here nor there on the charge. It is colourless. The conviction is proper though.

Ground No.2 The NEC Appeal Committee grossly erred and seriously misdirected itself in ignoring evidence that the assault had caused extreme pain and discomfort.

There is no evidence on record to prove extreme pain and discomfort. The NEC Committee did not err.

Ground No.3 The NEC Committee grossly erred by speculating on the child’s motive.

The NEC Committee indeed erred. There was no need to speculate. The point on the child’s evidence is simply that it should have been tested. The child should have been called to explain the way she was held and to ascertain the degree of the assault. Her statement does not tell. Her giving of viva voce evidence might also have assisted in appreciating the value of her evidence. Without that happening there is a gap in the evidence. That gap does not assist the appellant’s case. The extreme pain and discomfort is not proved anywhere. This is relevant for penalty purposes. It does not affect the charge of assault unless evidence of triviality were to come from the child –

a very unlikely thing to happen.

In the result the speculation is of no effect to the conviction The assault stands clear from the evidence of all the witnesses and the respondent too. The motive of the child is neither here nor there.

Conclusion  It appears that the NEC Committee misled itself in dismissing the conviction for assault. The charge of assault was proved and also admitted. The degree of the assault is not ascertained. Therefore the charge and conviction on assault should stand.

On the penalty we are aware that this is a discretionary issue for the employer. In the present case we are faced with the competing interest of children’s safety and the school’s image against the authority of teachers on the pupils and the particular teacher’s livelihood on the other side. The law is very clear that an appeal court should not lightly interfer with the employer’s discretion. This position has been repeated over and over in many cases. In Tobacco Sales Ltd v Chimwala 1987 (2) ZLR 210 (S) at 218H-219a McNALLY JA says,

“I consider that the seriousness of the misconduct is to be measured by whether it is “inconsistent with the fulfillment of the express or implied conditions of his contract. If it is, then it is serious enough prima facie to warrant summary dismissal. Then it is up to the employee to show that his misconduct, though technically inconsistent with the fulfillment of the conditions of his contract was so trivial, inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.

The seriousness of a misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found guilty of went to the root of the contract of employment in that it had the effect of eroding the trust the employer reposed in him as found by the arbitrator could it still be said that the misconduct was trivial to warrant a penalty of dismissal?.

The appellant worked against company policy. It is a serious act of misconduct for an employee to deliberately act against the employer’s policies to advance personal interests” (emphasis supplied).

In Circle Cement (Pvt) Ltd v Nyawasha SC 60/2003 the court said that-

“Once the employer had 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 the 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 unreasonable, in having a serious view of the offence committed by the employee.”

Thus the general rule is that the employer has a discretion that is not lightly interfered with. In the present case it appears to the court that a penalty of dismissal would be too harsh. This penalty seems to have been motivated by the claim that the assault caused” extreme pain and discomfort”. It has already been said that on record there is no basis for such a finding. It also appears that there are no aggravating circumstances. On the other hand the teacher was facing a challenge that otherwise seriously undermined his authority. How could a pupil refuse instructions to go back and use a route that all other pupils were using? This behavior would not only undermine the particular teacher’s authority but would encourage bad behavior among pupils if allowed to go unchecked. To that end the assault is mitigated. A penalty of dismissal is not commensurate. A lesser penalty is called for.

Disposition In light of the foregoing I find that the appeal partially succeeds. It is accordingly ordered as follow:-

1.	The findings of the NEC Committee be and are hereby set aside.

2.	The respondent’s conviction for assault be and is hereby reinstated.

3.	The respondent be and is hereby reinstated pending consideration of a new penalty.

4.	The matter is referred back to the appellant for consideration of a lesser penalty than dismissal.

5.	Each party bears its costs.

Makuvaza, Magogo Attorneys - 	Applicant’s Legal Practitioners

Wintertons	-	Respondent’s Legal Practitioners