Carol Chioza v Zimbabwe Revenue Authority

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/106/2020
HARARE, 26 NOVEMBER 2019
CASE NO. LC/H/298/18
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/106/2020

HARARE, 26 NOVEMBER 2019		          CASE NO. LC/H/298/18

AND 22 MAY, 2020

In the matter between:

CAROL CHIOZA								Appellant

Versus

ZIMBABWE REVENUE AUTHORITY					Respondent

Before The Honourable Kudya J

For Appellant:			M. C. Mukome (Legal Practitioner)

For Respondent			L. Chipateni (Legal Officer)

KUDYA J:

This is an appeal against the decision of the respondent employer’s appeals committee where it confirmed appellant employee’s dismissal following misconduct allegations.

The background to the matter is that appellant who was in respondent’s employ was arraigned before a disciplinary committee following misconduct allegations. She was found guilty of negligent conduct and also of conduct inconsistent with her work and dismissed on both counts.

Appeals in the matter went up to the Supreme Court where the matter was remitted to the respondent to reconsider penalty after the Supreme Court had dismissed the count on negligent conduct and set aside the penalty. The result of the re-hearing was a

dismissal penalty. Such irked appellant and caused her to appeal to this court on the appeal which is the subject of this judgment. The appeal raises three main issues;

1)	Non-compliance with time lines set out by the Code.

2)	Failure to take into account the changed circumstances following the Supreme Court decision and creating impression that lip service was paid to mitigation.

3)	Gender discrimination

Appellant thus prayed that the appeal be allowed and that she be reinstated with full

benefits.

In response to the grounds the respondent maintained that the flouting of time lines

was a review issue. If it was accepted as an appeal issue or if adjudged a point of

law there was no evidence of prejudice flowing from it to vitiate the proceedings. It

also maintained that the Supreme Court did not direct the respondent not to impose a

dismissal penalty but to revisit penalty in the wake of the other count which had been

set aside and whose penalty had been set aside. Respondent finally contended that no

gender discrimination was exhibited in the case. It argued that it was neither here nor

there that the appellant’s Supervisor who was male had not been charged. In the result

it prayed that the appeal be set aside.

Time lines

On the face of this issue it raises a review issue but as conceded by the respondent it

can also be adjuded an appellate one on account of the fact that it is a question of what

the law is.

See Hama v NRZ 1996 (1) ZLR 664 on the point of law debate.

That being said the critical issue is, Has it been demonstrated that there was such a

breach entitling appellant to the relief sought. A reading of the record shows that

indeed the time lines were not adhered to the letter. It is however noteworthy that the

law goes further and states that such flout is not an automatic ticket to reinstatement

(See Nyahuma v Barclays SC 86-04).

In the case at hand there has not been pleaded nor demonstrated prejudice from the

Time lines flout. To that extent the ground lacks merit and the appeal cannot succeed

on this basis.

Changed circumstances

It is settled law that the appellate court can only interfere with the times of feet

decision where gross unreasonableness is exhibited. See Nyahondo v Hokonya 1997 (2)

ZLR 475 (SC)

In the case at hand it is granted that respondent was asked to have a relook at the

penalty but was not directed to change the penalty. If as respondent reasons the view

was that notwithstanding all the mitigatory factors dismissal was still proper the

court finds it difficult to fault such exercise of discretion without any basis. The fact

that the other count and its penalty had been set and did not automatically translate to

a different penalty. It is settled law that penalty is the prerogative of the employer

(See Nyawasha v Circle Cement SC – 10-03).

Unless cogent reason exist for the court to order vacation of such the argument

cannot stand. It is accepted that respondent’s system was porous but that alone cannot

entitle one to a lighter penalty. The court is not persuaded that there was something

amiss about the revisitation of the dismissal penalty given all the facts of the case. The

court is thus satisfied that this ground also lacks merit and should fail.

Gender

It is settled law that one cannot escape liability by arguing that his colleagues also

erred. It appears such is the argument advanced by appellant here. The fact that her

supervisor was not charged does not detract from her own blameworthiness.

To that extent the gender argument cannot support her appeal. In the ultimate no good

case for appeal has been made out and the appeal should fail in its entirety.

IT IS ORDERED THAT;

1.	Appeal being without merit it be and is hereby dismissed.

2.	Each party bears own costs.

M.C. Mukome	-	Appellant’s Legal Practitioners