Volsec Security Service (Pvt) Ltd v Tawanda Muzota

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/673/14
HARARE ON 30th SEPTEMBER , 2014
CASE NO. LC/H/930/13
AND 10 TH
JUDGMENT NO. LC/H/673/14
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IN THE LABOUR COURT OF ZIMBABWE                       JUDGMENT NO. LC/H/673/14

HARARE ON 30th SEPTEMBER , 2014			             CASE NO. LC/H/930/13

AND 10TH OCTOBER, 2014

In the matter between

VOLSEC SECURITY SERVICE (PVT) LTD.	–	APPELLANT

And

TAWANDA MUZOTA				-	RESPONDENT

Before The Honourable F.C. Maxwell, J

For Appellant  :	Mr N.B. Munyuru (Legal Practitioner)

For Respondent:	Ms M. Mukucha  (ZISEGU)

MAXWELL J,

Respondent  was employed by the Appellant  as a Security Guard. On 14th October, 2012 he went on to an address in Borrowdale where he was to perform his duties. He alleges that no one opened the gate for him and he decided to return home without notifying  his superiors. He was charged and convicted of breaching Clause G of paragraph 4 of the National Employment Code of Conduct, SI 15/2006, habitual and substantial neglect of duty. Respondent had previously in 2010 left the premises he was guarding unattended without notifying his superiors. Respondent did not deny any of the incidences.  On 24th October 2014 he was dismissed from employment.

Respondent referred the matter to conciliation but it was not settled. It was subsequently referred to an arbitrator who ruled in his favour. Appellant was aggrieved and appealed to this Court on 14th November 2013. The ground of appeal is that:

“The learned arbitrator erred at law in coming to the conclusion on the facts that Respondent  had been unfairly dismissed by the Appellant.”

In response Respondent stated that:

“Appellant was not supposed to dismiss the Respondent. Being absent from duty for one day   does not warrant dismissal. Although Respondent has previous misconduct of absenting himself from duty, this was only for the second time and Appellant was supposed to follow general disciplinary action which is educational, corrective and punitive (sic) in terms of Section 7(1) of SI 15 of 2006.”

It is clear from the Arbitrator’s reasoning and the Respondent’s response that the issue in contention is the penalty meted out by the employer. On page 3 of the award, the Arbitrator stated;

“I am of the view that under the circumstances the penalty was too harsh/excessive as to induce a sense of shock.”

Appellant submitted that it is in the business of protecting clients property. It further submitted that Respondent was unrepentant as he did not confess that he did not attend work the previous day. The supervisor discovered it the following day. This, it was submitted, was in circumstances where Respondent had been given a warning in 2010. Clearly the employer took a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing him from employment. In the case of Circle Cement (Pvt) Ltd. v Nyawasha SC 60/03 it was held that in such circumstances the question of penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.

In my view the Arbitrator erred in interfering with the penalty meted out in circumstances where there is no finding of a gross misdirection. As stated in the case of Mashonaland Turf Club v Mutangadura SC 5/12;

“There is no basis for an appeal court to interfere with the penalty of dismissal imposed by an employer upon an employee for an act of misconduct that goes to the root of the employment contract unless it is shown that there was gross misdirection.”

Consequently the appeal succeeds. The Arbitrator’s decision cannot be supported and is therefore set aside.

As a result I make the following order;

The appeal be and is hereby upheld with costs.

The arbitral award be and is hereby set aside and substituted with the following –

“The claim be and is hereby dismissed for lack of merit.”

Muvingi and Mugadza – Appellant’s legal practitioners

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