Thomas Mangezi v Zero Degrees Investments (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/71/25
HARARE, 16 SEPTEMBER, 2024 & 26
FEBRUARY 2025
CASE NO LC/H/603/24
---------


IN THE LABOUR COURT OF ZIMBABWE

HARARE, 16 SEPTEMBER, 2024 & 26

JUDGMENT NO LC/H/71/25

CASE NO LC/H/603/24

FEBRUARY 2025

In the matter between:-

THOMAS MANGEZI

ZERO DEGREES INVESTMENTS (PVT) LTD

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant

For Respondent

C. Chigwada (Unionist)

T. Nyamayaro (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the appeals officer in a labour dispute pitting appellant employee and the respondent employer.

Facts of the matter are that the appellant who was in the respondent’s employ as a driver trainer was brought before a disciplinary committee to answer to charges of gross incompetency or inefficiency in the performance of his work. It was stated that the appellant had not been retested and that militated against him partaking duties that could require him to go to South Africa. Following the disciplinary hearing, he was dismissed from employment. He appealed internally without success. He has now appealed to the Labour Court on the appeal which is the subject of this judgment.

He raised 2 appeal grounds which can be summarised as such:-

2 LC/H/71/25

1. Appeals officer erred by not observing that the charge of gross incompetency or inefficiency did not call for dismissal for a first breach. It could be penalised by a final written warning at worst.

2. Appeals officer erred by not appreciating thatthe appellant had since assumed the duties of a driver trainer which could not be hindered by non-possession of an outlawed retest requirement coupled with the fact that the driver trainers had allocated a driver to partake the South African duty as per the request from operators.

In the result he prayed that the appeal succeeds, the dismissal be set aside and reinstatement on full pay and benefits be ordered or that damages be paid if reinstatement is no longer feasible. Damages to be paid in an agreed sum or sum to be set by the court on application by either party.

In response to the appeal the employer maintained: -

In limine that the appellant had used the wrong form so the matter had to be struck off with costs. In particular its argument was that it was not advised of its 10 days induciae to respond as set out clearly on the face of a Standard LC4 Form.

It also argued that the points raised by appellant in the Labour Court were not raised before the appeals officer in particular, he did not raise the issue that he was not required to undergo a re-test. The ground should also be struck off.

On the merits the respondent stated that: -

1. Penalty is the employer’s discretion not withstanding penalty stipulated in the code. Supreme Court has since settled the position.

2. Appellant’s retest certificate expired 16 March 2024. Non-renewal of the same led him to fail to attend duties in South Africa. The alternative arrangement argument is inconsistent with the requirement that he had to undergo the test except if one procured a licence compliant with SADC requirements.

In the hearing he confirmed that retest was a requirement but that his had expired. He also cited the example of a colleague whose licence had also expired but nothing was done to him In the ultimate the appeal is merit it should be dismissed with costs.

In response to the point in limine vis use of the wrong form the appellant conceded the breach but hastened to mention that the error did not prejudice the respondent. It is settled that parties

3 LC/H/71/25

should present the matters on the forms as set out by samples in the rules. The Registrar is however allowed to accept improvised forms from the parties. See Zimplats v Phuthi SC21/16 Rule 47(3) a -c Labour Court Rules 2017. The court agrees that the component on the form which informs the other party of the rights is meant for the smooth administration of justice. It is however not fatal in the court’s view if regard is had to the desirability of concluding matters on the merits, See Freda Rebeca vs Mapondera SC81/22.

The court is satisfied that aside the breach the respondent has been able to respond to the issues that appellant is concerned about vis his case. No meaningful purpose would be achieved by striking the matter off only for the appellant to go and inform the respondent about the 10 days induciae. This in the court’s view would fly in the face of Section 2A of the Labour Act. The point having been acknowledged but it not being dispositive of the matter is therefore dismissed.

As regards the 2nd point the appellant did not address that in his oral submissions. It is settled that what is not challenged is admitted. See Fawcett security vs Director of Customs and Excise 1993(1) ZLR 121 The 2nd point therefore succeeds as its challenge was not motivated by the appellant.

On the merits plane, even though the appellant raised 2 appeal grounds his main argument is that he should not have been dismissed. As regard the factual context of the retest the success of the point in limine puts to paid issues raised by the 2nd ground of appeal.

It is settled that penalty is at the employer’s discretion See Circle Cement v Nyawasha SC60/03. In the case at hand, it is clear that the employer’s operations were prejudiced by appellant’s noncompliance with the re-test requirement.

It is settled that if the employer takes a serious new view of an infraction dismissal can be acceptable See Innscor v Chimoto SC 6/12. It is equally settled that gross unreason ableness has to be demonstrated to upset a trier of fact decision. See Hama vs NRZ 1996(1)ZLR664. In the case at hand, whilst the Code of Conduct spelt out that a final warning could be given in such a case, there was equally nothing ousting the employer’s prerogative to mete out penalty of its choice if it viewed the infraction as going to the root of the employment contract.See

4 LC/H/71/25

Toyota v Posi 2008(1)ZLR173 The fact that some other employee got away with not being retested cannot be used as an excuse to upset the penalty. Equally the fact that there were other administration arrangements that were put into place to minimise the inconvenience to the employer does not exculpate the employee. The appeal is therefore entirely without merit. It should therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Wintertons Legal Practitioners	Respondent’s Legal Practitioners