Anusa Malango v Zimbabwe Platinum Mines

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/860/14
HELD AT HARARE ON 15th OCTOBER, 2014
CASE NO. LC/H/1066/13
AND 19TH DECEMBER, 2014
JUDGMENT NO. LC/H/860/14
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/860/14

HELD AT HARARE ON 15th OCTOBER, 2014   CASE NO. LC/H/1066/13

AND 19TH DECEMBER, 2014

In the matter between:-

ANUSA MALANGO 							Appellant

And

ZIMBABWE PLATINUM MINES					Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. E. Ndlovu (Legal Practitioner)

For Respondent: 	Mr. A.K. Maguchu (Legal Practitioner)

MHURI J.:

For contravening Section 3.3.4(a) of Respondent’s Code of conduct i.e. reporting for duty whilst under the influence of alcohol as a result of which damage worth $5 600,00 was caused to Respondent’s motor vehicle, Appellant was arraigned before a Disciplinary Committee.  He pleaded guilty to the charge and was dismissed from employment.

Aggrieved by the penalty, Appellant appealed to the Disciplinary Appeals Committee which upheld the dismissal penalty.  The grounds of appeal to the Disciplinary Appeals Committee were that:-

I apologise for what I did and humbly ask the Appeals Committee to be lenient on me.

First offender.

The disciplinary committee penalty was harsh.

I was not given chance to mitigate.

Over and above I am not implying justification to my breach, but kindly and earnestly asking the Appeals Committee to be compassionate and merciful on me.

The Disciplinary Appeals Committee went through the grounds of appeal one by one and found no reason to interfere with the Disciplinary Committee’s decision.  Appellant’s grounds of appeal in this Court can be summarized as follows:

That the Appeals Committee erred in upholding a dismissal penalty when the offence only warranted a written warning.

That the Appeals Committee did not give Appellant a chance to mitigate.

Appellant was a first offender, pleaded guilty he is a family man, wife is expecting and he is a breadwinner.

That the Appeals Committee did not consider that disciplinary action should first be educational, corrective and then punitive.

It is a trite position of the law that an Appellate Court will not interfere with the exercise of an employer’s discretion on penalty unless such exercise has been afflicted by a serious misdirection.

MALIMAJI V CABS 2007 (2) ZLR 77

TOYOTA ZIMBABWE V POSI SC 55/2007.

This principle was aptly stated in the case of

ATTORNEY GENERAL V HOWMAN 1988 (2) ZLR 402

that		”The principles justifying interference by an Appellate Court with the exercise of an original discretion are firmly entrenched.

If the discretion has been exercised on judicial grounds and for sound reason, i.e., without caprice or bias or the application of wrong principles an Appellate Court will not interfere and substitute its own decision.

It is not enough that it considers, if it had been in the position of the lower court, that it would have taken a different course.”

Korsah JA (as he then was) also emphasized this principle in the case of :

STATE V NHUMWA SC 40/88.

He stated at page 5 of the cyclostyled judgment:

“It is not for the Court of Appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed.

If the sentence imposed complies with the relevant principles even if it is severer than one that the Court would have imposed, sitting as a Court of first instance, this Court will not interfere with the discretion of the sentencing Court.”

In the instant case, can it be said that the discretion to impose a dismissal penalty was not judiciously exercised.  Was there gross unreasonableness on the part of the Disciplinary Committee when it imposed a dismissal instead of a written warning.  I do not think so.

The Disciplinary Committee considered the aggravating factors that Appellant knew the platinum rule that forbade coming to work under the influence of alcohol but nonetheless he breached this rule.  Knowing that he had taken alcohol, he drove Respondent’s motor vehicle thereby endangering himself and others.  He had an accident which damaged Respondent’s motor vehicle whose cost of repair was $5 600,00.  In the process he also damaged the wall that he drove into.

The mitigating factor that Appellant was a first offender was considered but was outweighed by the aggravating factors.

In view of the above, I do not see how the exercise of discretion can be said to be grossly unreasonable.

Before the Disciplinary Appeals Committee, Appellant made extensive submissions in mitigation which were also considered.  The Disciplinary Appeals Committee found that it was not correct that Appellant did not mitigate before the Disciplinary Committee, as his representative did that for him.

After considering Appellant’s mitigation and plea for leniency, the Disciplinary Appeals Committee in its deliberations found that Appellant had breached the company’s in house regulations which he was aware of.  He was on standby duties but went ahead to drink alcohol.  His actions had severe safety implications.  He drove the Respondent’s motor vehicle which he damaged in the process.

In its view the fact that Appellant was a first offender could not absolve him as the offence and the circumstances under which the accident occurred warranted a severe penalty.

In view of the above I do not find that the discretion was not judiciously exercised.  Even if the offence warranted a written warning, or that as per the Code disciplinary action ought to be educative and corrective first, the employer is at liberty to impose a punitive penalty where it views that the act of misconduct is so serious and is so serious and goes to the root of the contract of employment.

See:		MASHONALAND TURF CLUB V GEORGE MUTANGADURA

SC 5/2012

In the result, I find no basis to interfere with the penalty imposed by Respondent.

The appeal should therefore fail.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Mabundu Law Chambers–Appellant’s Legal Practitioners

Dube, Manikai and Hwacha–Respondent’s Legal Practitioners