Brian Dangarembwa v Kadoma Paper Mills

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/655/2013
HARARE, 18 AND 22 NOVEMBER 2013
CASE NO. LC/H/655/2013
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/655/2013

HARARE, 18 AND 22  NOVEMBER 2013	    		         CASE NO. LC/H/741/13

In the matter between:-

BRIAN DANGAREMBWA					Appellant

And

KADOMA PAPER MILLS					Respondent

Before The Honourable F.C. Maxwell,: Judge

For Appellant			Mr T. Mupeti (ZFTU)

For Respondent			Mr N. Madya (Legal Practitioner)

MAXWELL J.;

This is an appeal against the decision of the Appeal Authority of the Respondent which had upheld the dismissal verdict handed down by the Disciplinary Hearing Committee on 11 September 2013.  Appellant had been charged and convicted of;

Carelessness/negligence or inefficiency in one’s work

Refusal to carry out lawful instruction/insubordination.

Any act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of one’s contract.

It had been alleged that on 31 August 2013 one C. Mungofa had been phoned by the Appellant at around 0730 hours informing him that D.S.R Chemical had run out and the 1000 litre container was empty.  Mr Mungofa instructed the Appellant not to request from stores for another 1000 litres of D.S.R.  Further he instructed the Appellant not to remove the empty container as he was coming to work to investigate how a container carrying 500 litres of remaining D.S.R. can be empty overnight.

Mr Mungofa organized transport and arrived at the workplace at 0830 hours.  He proceeded to the station where the D.S.R chemical is located.  At the site he discovered that the empty container had been replaced with a new 1000 litre container full of D.S.R.  The empty container was not there as instructed.  He inspected the chemical station to check for possible spillage.  He noticed that the area had been cleaned.  He noticed chemical foam close to ZESA substation near the high level tank which he later confirmed to be DSR.  The empty D.S.R. container was at the Effluent Treatment Plant (ETP).

On being questioned Appellant indicated that the chemical had leaked.  Appellant admitted moving the empty container to the ETP area like all other empty containers.  He was subsequently asked to write a report.  He wrote his report which is on page 41 of the record.  In the report he reiterated his response to Mr Mungofa and went further to say he had used a rubber broom to clear the way for forklift driver Sithole whose vehicle wheels veered on the site.

Appellant appeared before a disciplinary committee on 11 September 2013.  He was found guilty of all three charges. His disciplinary record was not good.  Appellant was dismissed with effect from 11 September 2013. He was advised of his right to appeal against the verdict to the General Manager within seven days.  He timeously noted his appeal.  In noting his appeal on 16 September 2013 he stated.

“Whilst I acknowledge the loss anchored on the spillage of the D.S.R. chemical I hereby wish to appeal against the penalty which I was given by the Mill Discipline Committee I hope your office would have lenience and reduce my sentence”.

The appeal was heard on 20 September 2013.  The Appeal Authority upheld the decision of the Disciplinary Committee and advised Appellant of his right to appeal to this Court.  Appellant noted an appeal to this Court on 23 September 2013.  His basis of appeal raised procedural issues

he  was not given chance to cross examine witnesses.

he was not given the witness reports.

his two witnesses were sidelined.

he requested for evidence from Econet to prove number of calls between him and Mr Mungofa but was refused.

he was not called for investigation since his suspension.

the hearing minutes were not availed to him.

this was a politically motivated plan.

He concludes his basis of appeal by stating that he had served the Respondent for twelve years.

The Respondent raised a point in limine that the appeal was defective for non compliance with the rules of this Court as Appellant had not stated the grounds upon which he is challenging the decision.

Appellant’s response was that the grounds of appeal were filed at the same time with the notice.  Regrettably the document titled “My basis of Appeal” which is  on page 9 of the record is neither dated nor stamped by the Registrar’s office.  It is therefore difficult to establish at which point that document was filed.  When the record was referred to me it was already on record.  Appellant therefore gets the benefit of the doubt.

Respondent, on the merits, states that the conviction was proper as Appellant in fact admitted the charges leveled against him.  The penalty was warranted as Appellant was found guilty of serious acts of misconduct.  Respondent prayed for the dismissal of the appeal with costs.

At the hearing of this matter Appellant who appeared with Mr Mupeti from ZFTU put in issue factual matters that were not part of his grounds of appeal.  Mr Mupeti however reiterated issues that are in his grounds of appeal.  Appellant did not put in issue the penalty he had appealed against before the Respondent’s Appeal Authority.  Respondent referred the Court to the case of James Kadoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04 which is appropriate in this case.  In that case the Supreme Court pointed out that the Appellant could only appeal against the decision of an issue that had been before the tribunal.  In casu Appellant can only appeal against the confirmation of the penalty of dismissal which he had challenged before the Respondent’s Appeal Authority.  It will not be necessary to delve into all the other issues that are in the basis of his appeal.

As stated above Appellant has not challenged the confirmation of the penalty of dismissal by the Appeals Authority.  Even if he had done so my view is that he would not succeed.  In the case of Mashonaland Turf Club v George Mutangadura SC 5/2012 the Supreme Court held that in the absence of a misdirection  or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal Court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment see also Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA AND Others (2006) 11 BLLR 1021  Toyota Zimbabwe v Richard Posi SC 55/07.

In the circumstances of this case the exercise of discretion by the employer cannot be faulted.  Accordingly the appeal must fail.

Wherefore it is ordered that:

The appeal be and is hereby dismissed for lack of merit.

There is no order as to costs.

Winterons – Respondent’s Legal Practitioners