Southern African AIDS Trust v Maxmillan Mugabe

### Preamble
Judgment No. SC 54/2020
1
Civil Appeal No. SC 391/16
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REPORTABLE:    	(50)

SOUTHERN     AFRICAN     AIDS     TRUST

v

MAXMILLAN     MUGABE

SUPREME COURT OF ZIMBABAWE

HLATSHWAYO JA, PATEL JA & MAVANGIRA JA

HARARE: SEPTEMBER 12, 2017 & MARCH 27, 2020

E T Moyo, for the appellant

J Bhamu, for the respondent

HLATSHWAYO JA: 	This is an appeal against the whole judgment of the Labour Court handed down on 8 April 2016 under case number LC/H/994/15, in terms of which the determination of an independent disciplinary authority against the respondent was upheld by the court a quo.

The facts of this case are common cause. The respondent was employed as a Country Programme Officer by the appellant, a non-governmental organisation focused on HIV-AIDS prevention and education. On 16 March 2015, pursuant to allegations of misconduct, the respondent was suspended from work with pay and benefits pending the institution of disciplinary proceedings. The respondent was charged with conduct inconsistent with the express or implied conditions of his employment as provided for under s 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (SI 15/2006).

It was alleged that on 5 March 2015, following a workshop on gender based violence organised by the appellant, the respondent perpetrated an act of sexual harassment against a female participant in the workshop (the complainant). The respondent purportedly ran into an acquaintance, a Mr Taranhike, and elected to accompany him to the room of the complainant, who had attended the workshop with Mr Taranhike, and a colleague. Mr Taranhike intended to deliver food to the complainant. The pair arrived at the complainant’s room at around 10 p.m. whereupon they found her in her night clothes in preparation to sleep. Upon admittance into the room they both took seats and engaged in polite conversation with the complainant. After handing the complainant her food, Mr Taranhike, upon receiving a phone call, excused himself from the room. The respondent however remained in the complainant’s room.

Approximately twenty minutes after Mr Taranhike exited the room, the complainant placed a telephone call to her colleague and Mr Taranhike respectively. The complainant expressed distress that the respondent had stripped naked and slipped into her bed. She subsequently wrote a formal letter of complaint to the appellant concerning the respondent’s alleged behaviour. In the letter, the complainant stated that the respondent had removed his clothes and entered her bed uninvited. She alleged that the respondent had attributed his state of undress and his presence in her bed to the fact that he wanted to relax and was afraid to return to his own room. It was the complainant’s averment that she pushed the respondent away and asked him to leave her room, which he did.

Consequently, a charge of misconduct was levelled against the respondent by the appellant and an independent disciplinary authority established to preside over the matter given the respondent’s position of seniority within the appellant’s organization and the need to ensure fairness. At the close of disciplinary proceedings, it was held that the respondent was guilty of the offence as charged by the appellant. Submissions were taken both in mitigation and aggravation. It was the disciplinary authority’s final determination that the appropriate penalty for the offence would be a final warning operative for one year and a one month suspension period without pay in which the respondent would undertake counselling sessions to teach him to “practise what he preaches”.

Aggrieved by the determination, the appellant approached a Labour Officer for conciliation over the matter. Unfortunately, conciliation proceedings failed, resulting in the Labour Officer issuing a certificate of no settlement.  Accordingly, the Labour Officer referred the matter to an Arbitrator for a determination of the appeal against the decision of the disciplinary authority.  It was the Arbitrator’s position that there was no justification to interfere with the discretion of the disciplinary Authority in imposing a suitable penalty.  Dissatisfied, the appellant noted an appeal in the court a quo against the Arbitrator’s ruling, which appeal was dismissed on the same premise as that of the Arbitrator.

The appellant has however remained disatisfied with the aforesaid determinations and has filed the present appeal on the following grounds:

The learned judge of the Labour Court grossly misdirected himself and erred at law by finding, unreasonably so, that there was no basis for interfering with the penalty imposed by the disciplinary authority and by extension the arbitrator’s award upholding the penalty more particularly in that:

The record indicates and the court a quo accepted that the respondent committed a serious misconduct, and therefore one that has the effect of going to the root of the employment contract. The disciplinary authority and by extension the arbitrator and the learned judge of the court a quo failed to give due weight to this relevant consideration and thereby seriously misdirected themselves in the exercise of their discretion.

The court a quo was influenced by an irrelevant consideration namely the reasoning that the respondent was merely pressing his luck when in fact there was no evidence from the record that he was in a relationship with the complainant from which the inference could be made that he would press his luck.

The court failed to give due weight to the fact that sexual harassment by its very nature constitutes a serious invasion of the complainant’s privacy and dignity and therefore a light penalty would trivialise such misconduct and would be intolerable particularly in the line of work such as that of the appellant.

Should the appeal succeed, the appellant seeks the following relief:

‘That the appeal succeeds with costs, with the result that the order of the Labour Court under case reference LC/H/994/15 shall be set aside and substituted with the following findings:

“The appeal succeeds with costs. The arbitrator’s award and the disciplinary authority’s determination on penalty are both set aside and substituted with the finding that the Respondent shall be dismissed from employment effective from the date of conclusion of the disciplinary hearing.’”

It is apparent that the sole issue for determination before this Court is whether or not the court a quo erroneously upheld the decision of the Arbitrator and disciplinary authority, and the penalty imposed therefore.

The respondent has correctly alluded to the discretion conferred upon an employer in imposing an appropriate penalty on an employee who commits an act which strikes at the core of the employer and employee relationship. The said discretion has been expounded in National Employment Council for the Catering Industry v Kundeya & Ors unreported judgment number SC 35/16 in the following terms:

“As I have already stated, once an employer has established that an employee committed a dismissible act of misconduct as happened in this case, the discretion whether or not to dismiss lies solely with the employer. Generally speaking, it is not for the appellate court, arbitrator or tribunal to substitute its own discretion for that of the employer. The point was brought home by MALABA DCJ in Innscor Africa (Pvt) Ltd v Letron Chimoto where the learned Deputy Chief Justice observed thus:

‘A principle has now been firmly established to the effect (that) 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 discretion by the arbitrator.’” (Emphasis added)

Ever mindful of the foregoing, appellate courts do not generally act to usurp the discretion of a lower court or tribunal unless it is proven that the discretion has been improperly exercised. A plethora of cases have been decided to that effect, most notably in the case of Hama v National Railways of Zimbabwe 1996(1) ZLR 664 (S) at page 670D wherein it was stated:

“…the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.”

The parameters in which an appellate court may interfere with the discretion of a disciplinary authority are succinctly set out in the case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A wherein Gubbay CJ stated the following:

“These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court” (Emphasis added)

In the circumstances, the appellant contends that the court a quo failed to appreciate the gravity of the offence committed by the respondent. It is the appellant’s submission that the offence perpetrated by the respondent went directly to the root of the employment contract between the parties. The appellant referenced the case of Standard Chartered Bank v Chapuka 2005 (1) ZLR 52 (S) at page 57B wherein it was stated:

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and employee giving the former a prima facie right to dismiss the latter.” (Emphasis added)

Furthermore, the appellant avers that there was no evidence submitted on record to support or buttress the finding by the disciplinary authority that the complainant had somehow sent mixed signals to the respondent leading him to “try his luck” with her.

Giving due regard to circumstances of this case, I am inclined to agree with the appellant. There was no indication on record that the respondent conceded that he had in fact committed an offence and thus showing contrition. Rather, it appears the disciplinary authority went on a frolic of its own, pulling facts from thin air such that the respondent was vindicated and the complainant condemned for any unwelcome advances made upon her person. The complainant was accused of behaving in an inappropriate manner justifying the visitation of unwanted sexual attention to herself.  The disciplinary authority, Advocate Julia Wood, makes unfounded and unsubstantiated generalized conclusions exculpating the respondent or reducing the magnitude of the offence in circumstances which amount to allowing “extraneous or irrelevant matters to guide or affect” her conclusion, thus:

“The respondent may be an advocate for women’s rights but first and foremost he is a man and it is by no means unusual for a man’s actions to be controlled by his hormones, rather than his head, hence the need for workshops such as that in which the two parties were participating. The respondent was obviously attracted to the complainant – he had invited her out the previous evening and remained in her room when Innocent left.  She herself admitted that he might have been under the impression that she was not displeased with his presence in her room that evening so he may have seen her action in getting into bed as an invitation to join her. It was certainly a temptation which the respondent was clearly unable to resist but, in his situation, he should have known better than to strip and jump into bed with the complainant without ascertaining if it was actually her wish that he did so.  However, in respondent’s favour is the fact that he realized his mistake and left without offering any real resistance.” (emphasis added)

With all due respect, the findings by the disciplinary authority does induce a sense of shock, more particularly in that a determination was made and a penalty imposed based on unfounded and wholly unsubstantiated evidence and extraneous and irrelevant considerations. All that constitutes a serious misdirection that this Court cannot overlook.

The court finds favour with the appellant’s submissions regarding the serious nature of sexual harassment as reflected in our law. Section 8 of the Labour Act [Chapter 28:01] qualifies sexual harassment as an unfair labour practice whilst s 80 of the Constitution requires full and equal dignity to be accorded to women. An act of sexual harassment has far reaching implications on the relationship between an employer and an employee. It was well established in the South African case of Masemola v The Commission for Conciliation, Mediation and Arbitration & Ors unreported judgment JR 1025/2013 (17 May 2016) at p 7 para 33 which is of persuasive value to this Court that:

“The employer owes a duty towards his or her employees (as well as clients, suppliers, contractors and others who have dealings with the employer, as established above) to protect them from sexual harassment. This duty exists even if such sexual harassment takes place outside the work premises and normal working hours as such conduct impacts on the working environment…the Labour Appeal Court in Campbell held as follows:

‘The appellant was entitled to discipline Mr Simmers for misconduct which was both related to and impacted on his employment relationship with the appellant.’ (Emphasis added)

In my view, the fact that the complainant was a participant in the appellant’s workshop does not negate the respondent’s liability to his employer. Furthermore, the conduct of the respondent would evidently have a bearing on the employment relationship between the parties given the grave nature of the infraction and the betrayal of trust accorded to both parties by the public.

All in all, given the foregoing analysis, the court a quo misdirected itself such that interference by this Court is justified.  The appeal is meritorious and costs must follow the outcome, nothing having been submitted to the contrary.

Accordingly, the appeal is granted with costs. The judgment of the court a quo is set aside and substituted with the following:

“1. 	The appeal succeeds with costs.

The arbitrator’s award and the disciplinary  authority’s determination on penalty

are both set aside and substituted as follows:

“The respondent is dismissed from employment effective from the conclusion of the disciplinary hearing””

PATEL JA			:		I agree

MAVANGIRA JA  		:		I agree

Scanlen & Holderness, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners