Tobacco Processors Zimbabwe (Pvt) Ltd v Ronald Mukuna

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/207/2014
HARARE, 15 JANUARY 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/207/2014

HARARE, 15 JANUARY 2014    		     	     CASE NO. LC/H/152/12

& 11TH APRIL 2014

In the matter between:-

TOBACCO PROCESSORS ZIMBABWE (PVT) LTD			Appellant

And

RONALD MUKUNA							Respondent

Before Honourable R. Manyangadze, J

For Appellant 		-	Advocate T. Mpofu (Legal Practitioner)

For Respondent		-	Mr. B. Furidzo (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the National Employment Council (NEC) Grievance & Disciplinary Committee (GDC) which confirmed Respondent’s conviction for misconduct, and imposed a penalty of a final warning.

The Appellant is appealing against the GDC’s penalty, which substituted, the Disciplinary Committee’s sentence of dismissal.

The Respondent, on the other hand, lodged a cross appeal against the GDC’s confirmation of the Disciplinary Committee’s verdict of guilty.  The situation therefore is one in which the Appellant is appealing against what it considers a lenient penalty, while the Respondent is appealing against what he considers a wrong conviction.

The background to the matter is as follows:

The Respondent was employed by the Appellant Company as a Maintenance Fitter, in the Engineering Department, and worked at the Boilers.  Respondent was charged with misconduct in terms of the NEC Tobacco Industry Code of Conduct, Statutory Instrument 322 of 1996.

The section he allegedly contravened lists the acts of misconduct as dishonesty, theft, fraud and related matters.  The misconduct with which Respondent was charged is that of theft.  Particulars of the misconduct are that on 23 October 2011, he attempted to leave company premises with company property.  The property consisted of bolts and nuts, tins of paint and welding rods.  The property was recovered after a security search in his car and on his person.

On 25 November 2011, the Disciplinary Committee found him guilty of the alleged misconduct, and on 28 November 2011, imposed a penalty of dismissal.

The dismissal was upheld by the Works Council.

Respondent appealed to the GDC.  On 28 February 2012, the GDC confirmed the verdict of guilty, but set aside the sentence of dismissal, and substituted it with a final written warning.

It is this decision that has given rise to the Appellant’s appeal and Respondent’s cross-appeal.  One is against sentence, and the other is against conviction.

Before going into the merits or otherwise of the appeals, I must deal with a point in limine raised by the Respondent.  The issue raised by the Respondent is that the Appellant should not be heard, as it is approaching the court with dirty hands.  Appellant has not yet complied with the GDC decision ordering it to reinstate the Respondent, and is thus coming to court with dirty hands.

In rebutting the point raised by Respondent, Appellant argued three points.  These were that:

The GDC awarded reinstatement without an alternative of damages, rendering its order defective. Appellant could therefore not comply with a defective order.

Respondent could not seek to enforce a judgment that it was appealing against.

Doctrine of peremption, in terms of which Appellant cannot be expected to comply with an order that it is appealing against.  The argument here is that if Appellant complies, the appeal is deemed to have lapsed.

The rationale for the first point is that an employer should not be forced to keep an employee he no longer wishes to employ.  Appellant referred the court to the case of Sandvik (Pvt) Ltd v Lowsign Nyarumbu LC/H/83/11. In that case, President Matanda-Moyo (as she then was) stated that an employer could not comply with an order for reinstatement which has no alternative for damages.  It denied the employer the option of paying damages thus compelling him to employ an unwanted employee.

Appellant finds itself in the same predicament, having to reinstate Respondent, without an option of paying him damages so as to lawfully sever the relationship.  It can however, also be argued, that reinstatement, though undesirable,  is an order which Appellant is required to comply with until an appeal decides otherwise.

The point I find most pursuasive is the second one.  The Respondent has appealed against the GDC decision.  At the same time, he seeks its enforcement against the Appellant.  In this regard, reference was made to the judgment of this Court, in the case of Agnella Mavhunga v ZB Bank LC/H/762/12.

The comments by Muzofa J are quite persuasive.  She stated, at page 2 of the cyclostyled judgment:

“The appellant in this case cannot seek to deny the Respondent the right to be heard on the basis that it did not comply with the National Employment Council Appeals Board ruling yet she has noted an appeal against it.”

The reasoning in that case applies with equal force in casu.  Respondent cannot seek to have Appellant held in contempt of a decision he is also appealing against.  In my view, the interests of justice are best served by having execution pursued after the appeal is disposed of.

The third and final point, that is, the doctrine of peremption, lacks merit.  It seeks to enforce a common law principle in labour matters.  Appellant argues that it cannot be expected to comply with an order that it is appealing against, in terms of that doctrine. The Labour Act is very clear on this issue.  It has reversed the common law position. Section 92E (2) requires compliance pending appeal, unless interim relief is granted in terms of subsection (3).

As I have already indicated, of the arguments raised by Appellant, it is the second one that I found be most persuasive.  Respondent is appealing against the GDC’s determination.  He cannot reasonably allege contempt on the part of the Appellant, thus seeking to enforce a judgment he is also appealing against.  For this reason, I am unable to uphold Respondent’s point in limine.

I now turn to the merits of the matter.

For convenience, I will start with Respondent’s cross-appeal.  This is for the simple reason that it is dealing with the question of conviction.  If the appeal is upheld, and the conviction is quashed, then the question of sentence falls away.  Sentence is, logically, discussed after conviction is upheld.

The facts giving rise to the misconduct charge have already been outlined.  The whole incident occurred when Respondent was exiting company premises.  He had in his possession property that is the subject matter of the misconduct charge.

Significantly, it was conceded during the hearing that given the circumstances in which he was found with the property, the initial onus fell on the Respondent to prove the materials belonged to him.  Once he discharged that onus, it would swing to the employer.

As Respondent was found in possession of the property in question, and not caught red-handed stealing it, his liability will largely be on the basis of inferential reasoning.  In the law of evidence, it is trite that when faced with circumstantial evidence, the inference sought to be drawn must be the only one that can reasonably be drawn from the circumstances.

The evidence on record, which the GDC was faced with, shows that the property was concealed in Respondent’s car.  It was recovered from underneath the seats of the car.  The security guard had to lift the seat to recover the three tins of paint, among other property mentioned in the papers on record.

Further to that, Respondent was unco-operative. He wrestled with the security guard over the phone, in an endeavour to prevent the latter from making an important security call in connection with the recovered property.  There was no documentation authorizing him to take any of the property out of the company.  He had not declared any property of his when entering the company premises earlier on in the day.

In my view, the employer established a sufficient factual basis from which guilt could be reasonably inferred.  Faced with this set of facts, the GDC had difficulty in absolving Respondent from liability for the alleged misconduct.  It was constrained, by the facts before it, to return a verdict of guilty. This explains its finding that the grounds of appeal submitted by Appellant could not be sustained, and further that “the intention to steal may have been there on the part of the Appellant”. It however went on to temper with the penalty.

There is, in my view, no basis on which to interfere with the verdict of guilty.  The Court was referred to numerous cases in which was upheld the principle that an appellate Court should not lightly interfere with the findings of a trial court.  Among the cases is that of Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 where GUBBAY CJ stated:

“In considering the cogency of the submissions, what should not be overlooked is that 	BARTLETT J exercised discretion to hear the matter.  That he did so is a significant factor at this stage of the proceedings.  Unless it can be found that no reasonable judge would have acted other than to decline jurisdiction-certainly a length to which I am not prepared to go-the decision made is plainly beyond interference by this Court.”

Applying the same approach, I am of the considered view that the GDC’s decision, as far as the verdict is concerned, is beyond interference by this court.  The GDC correctly upheld the verdict of the trial tribunal.  The cross appeal, in the circumstances, cannot succeed.

Having disposed of the question of conviction, there now remains the question of sentence.  The issue is whether the GDC was correct in setting aside the penalty imposed by the Disciplinary Committee which heard the matter, and confirmed by the Works Council.

The Respondent submitted in his Heads of Argument, that the penalty of dismissal is not obligatory and should be a penalty of last resort.  Crucial mitigatory factors should have been taken into consideration such as Respondent’s length of service, disciplinary record, minimal value of the property and that there was no actual prejudice to the employer.

The Appellant, on the other hand, submitted that the Disciplinary Committee committed no error in the exercise of its discretion and the GDC should not have varied the penalty.

The question of penalty, in misconduct cases, is principally the prerogative of the employer.  An appellate court or tribunal can only interfere with the employer’s sentencing discretion if the exercise thereof reflects gross unreasonableness.  It is the employer who is, very often, in the best position to determine the values and standards against which its employees should be measured.  This was highlighted in Country Fair Foods (Pvt) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) where the court stated:

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which non- compliance will be visited, interference therewith is only …. in the case of unreasonableness and unfairness.”

The Zimbabwean Supreme Court has pronounced itself clearly on this issue. It has overturned a number of this Court’s decisions, where this Court had set aside an employer’s penalty, believing it to be too harsh in the given circumstances.

In Innscor Africa (Pvt) Ltd v Letron Chimoto MALABA DCJ stated:

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower Court.  In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator.  The Labour Court merely substituted its own discretion for that of the arbitrator, without finding any recognizable misdirection on the part of the arbitrator,”

The property in question was a pizza valued at $4,00.  There was no prejudice to the company.  In fact, there had been no theft of the pizza, but it was produced without the employee having received necessary authorization for its production, according to the company’s production procedures.  The conduct was viewed seriously by the employer and warranted dismissal.  An appellate court had no justification in reversing that penalty.

In casu, there was no justification for the GDC to substitute the Disciplinary Committee’s penalty of dismissal with one of a warning.  The employer viewed the misconduct seriously, which involved an element of dishonesty.  The sentence imposed cannot be said to be arbitrary, malicious, capricious or grossly unreasonable, to warrant interference by the GDC.

In the circumstances the Court is satisfied that the appeal has merit and must be allowed.

In the result, it is ordered as follows:

The appeal be and is hereby allowed with costs.

The penalty imposed by the GDC be and is hereby set aside, and the decision of the Works Council upholding Respondent’s dismissal be and is hereby confirmed.

……………………………………………………………

MANYANGADZE J