Alexander Mazarire v CMED Private Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/135/13
HELD AT HARARE ON 28th January, 2013
CASE
JUDGMENT NO.LC/H/135/13
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THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO.LC/H/135/13

HELD AT HARARE ON 28th January, 2013             CASE NO.LC/H/290/12

In the matter between:

ALEXANDER MAZARIRE					Appellant

And

CMED  PRIVATE LIMITED				Respondent

Before The Honourable L. Hove, President

For Appellant   : Mr L.W. Ndlovu  (Legal Practitioner)

For Respondent: Mrs D. Kandwe (Legal Practitioner)

HOVE, L.

This matter was heard by President Makamure who sent the matter back to the employer to enable the employer to correct the inconsistencies between the findings of the Board and the letter of dismissal. Thereafter, the Appellant was to be heard in mitigation.

When the employer was saddled with the remitted matter, it realised it had to appoint some new persons to the Board. Some of the Board members had left the Organisation including the Chairman of the Board.

When new persons were appointed they proceeded to comply with the order of the Labour Court i.e. to correct the inconsistencies and to hear the Appellant in mitigation.

The Appellant cried foul. It argued that the Board ought not to have purported to correct the inconsistencies in the absence of the author of the letter of dismissal. And also in the absence of the original Board of Inquiry. It was argued that the Board erred at law when it found that Appellant had failed to prove that his wife was sick and that it took an armchair approach and also failed to give adequate weight to the mitigatory factors.

The Court considered that the members of the Board who had left including the author of the dismissal letter had not been acting in their personal capacities. They were acting as representatives of the disciplinary authority  of the company. The company, not being a natural person can only act through its officials. When that person ceases from being an official of that company, the company and its various functions are not stayed permanently. The company continues to act through its appointed officials.

The Court had authorised the Respondent to correct the inconsistencies through its Board not through the actual individuals who had formed part of the Board.

The Appellant’s position in my opinion would be arguable if he were to show that the knowledge which was required to enable the corrections to be made were exclusive to a particular individual as, in this case to the author only.

The author had not acted as an individual. He had acted as part of the Board and the decision to dismiss had been taken by the Board. The Board still had some persons from the previous Board who would be in a position to help the new members to properly execute their duties further there were minutes of the proceedings to help the new members.

The Appellant has not advanced any authorities to substantiate his averments that the Board could not act as duly appointed authorities of the company when the order of the Court had not specifically referred the matter back to specific individuals.

The Appellant also argues that he had never been required to prove that his wife was ill.

Even if one was to accept that the issue of the Appellant’s wife sickness was never in issue in the original Board, this is not the gravamen of the matter. The issue was the unauthorised leave. The fact that Appellant’s wife was ill can only be relevant for purposes of mitigation.

Finally, the issue of whether or not the penalty was excessive was placed in issue.

Sentencing is a matter that is in the employer’s discretion and unless it can be shown that the employer grossly misdirected itself, an appeal Court cannot interfere with the proper exercise of discretion on the part of the employer.

In casu, the Appellant has not given any specific submissions to establish that the Board misdirected itself or that it improperly exercised its discretion in the Coh Coh case Coh Coh Enterprises (Pvt) Ltd vs. Mativenga and Another ZLR 2001 (1) 151, the Supreme Court stated that;

“In a proper case, a lesser penalty may be imposed”

The onus in my view is on the Appellant to show that this is a proper case for the imposition of a lesser penalty. No averments to persuade the Court along those lines have been argued before me.

On the other hand, the Board in its decision clearly showed that they had taken into account the mitigatory factors but found that the seriousness of the offence warranted a penalty of dismissal.

I am not persuaded that there was an improper exercise of discretion.

I accordingly find there is no merit in the appeal and dismiss it with no order as to costs.

Donsa-Nkomo & Mutangi – Appellant’s Legal Practitioners

Gula-Ndebele & Partners – Respondent’s Legal Practitioners