Victor Dzedze v Victoria Foods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/685/2016
HARARE, 23 OCTOBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/685/2016

HARARE, 23 OCTOBER 2016			    CASE NO. LC/H/790/14

AND 4 NOVEMBER 2016

In the matter between:-

VICTOR DZEDZE					Applicant

And

VICTORIA FOODS					Respondent

Before Honourable L. Kudya, Judge

(IN CHAMBERS)

KUDYA, J:

On 22 October 2015 this matter was postponed sine die at the instance of the appellant.  Since then the appeal has not been prosecuted giving rise to the impression that the appeal has been abandoned.  In terms of section 89 (2) (a) (i) of the Labour Act the court in the exercise of its many functions may decide an appeal on the basis of papers filed of record.  It is in the spirit of the above quoted section that the instant judgment is written to dispose of the appeal which was postponed sine die on 22 October 2015.

The background of this appeal is that the appellant employee lost his job with the respondent employer over allegations of participating in an illegal strike which prejudiced the respondent’s production.  He appealed internally without success until he noted the instant appeal to this court.  His prayer is that his dismissal be set aside and that he be reinstated to his original position without loss of pay and benefits.

The appeal is opposed by the respondent which maintains that the appellant’s dismissal was well founded and should not be interfered with by this appellate court.

The law is clear that the appellate court should not usurp the powers of the tribunals below it unless it can be demonstrated that the exercise of such discretion was grossly irregular or capricious or a malafide (See case of S v Isolano 1985 (1) ZLR 62 (SC))

In the case at hand 2 issues were at stake that is whether appellant breached the code and whether the dismissal penalty was befitting to the infraction complained of.  A reading of the records of the disciplinary hearing shows that whilst. appellant denied sitting in without authority he conceded that for that whole day no packing of the flour as required by the job was done by him or fellow workers despite their having reported for duty.  He argues that for that whole day he was trying to deal with his workers representative duties of meeting management and also informing his colleagues of the outcomes of his efforts.

It is not disputed that no packing took place that day so it would not be stretching one’s imagination too for to agree that indeed the employees including appellant did sit in on that day and that was not sanctioned by law.  The court has no cogent basis to interfer with the verdict on that account.

As for penalty the law is settled see Circle Cement vs Nyawasha SC 60-03.  The discretion in such lies with the employer and an order can only be set aside if it is demonstrated that it was grossly irregular.  Appellant stood in an advisory position to his peer workers so a dismissal penalty for halting production for a whole day cannot be held to cause one to whistle. The attack therefore is not merited. Ultimately both grounds are ill founded and appeal should be dismissed on that account.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed.

Each party bears own costs.