Fortune Nyambodza v Zimbabwe Leaf Tobacco Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/94/13
HELD AT HARARE ON 29 NOVEMBER 2012
CASE NO. LC/H/794/11
JUDGMENT
LC/H/94/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/94/13

HELD AT HARARE ON 29 NOVEMBER 2012	CASE NO. LC/H/794/11

In the matter between:

FORTUNE NYAMBODZA				-		Appellant

And

ZIMBABWE LEAF TOBACCO COMPANY		-		Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				In Person

For Respondent				Mr G. Makings (Legal Practitioner)

NDEWERE E.F.

In August, 2011, the Appellant was charged with violating sub sections 1, 2, 3, 5, 6 and 10 of Section A and sub Sections 3, 4 and 5 of Section B of the (IT) User Agreement which provided that company technologies were provided and reserved for the company’s business only in that he sent insulting personal messages to his subordinate; one Neverrest Simango.

The second charge was for contravening the Tobacco Industry Code of Conduct in that he displayed indiscipline, violence and other related offences by using insulting or abusive language and the third charge was for dishonest, theft, fraud and related matters in that he made false entries when he logged onto subordinate Neverrest Simango’s computer on 10 July 2011.

The Appellant denied the charges but during the hearing, the Appellant did not dispute sending the personal messages but sought to argue that he did not offend anyone.  He also did not deny logging onto Neverest’s computer and using it.  Later he said he violated the Section together with the subordinate.  The Disciplinary Committee found him guilty of the charges and he was dismissed from employment.  He noted an appeal against dismissal to the Works Council and his appeal was dismissed.  He appealed to the Tobacco Industry Grievance and Disciplinary Committee against the dismissal.  His appeal was dismissed for the second time.  He has now appealed to the Labour Court.  He raised ten grounds of appeal, with some bordering on “review” issues.  The Court considered all the Appellant’s grounds.  On allegations of procedural irregularities, the Court did not find any irregularity.  However, even if they were irregularities the case of Tichawana Nyahuma vs Barclays Bank (PVT) Ltd SC 678/2005 is relevant.  On page pp4 of the cyclostyled judgment, the Court had this to say:

“It is not all procedural irregularities which vitiate proceedings.  In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

So it is not enough for an Appellant to point out to a procedural irregularity, they must show that the irregularity prejudiced them  In the present case, the Appellant cannot argue that the irregularities, if any, prejudiced him because the case against him, is largely based on admitted facts from page 41 to 44 of the record.  He admits sending the offensive e-mail to his subordinate and he admits logging onto his subordinate’s computer and using it, contrary to company policy.  So whatever irregularities in the proceedings did not prejudice him at all.

On penalty, the Appellant said he was not given the opportunity to mitigate, yet on page 44 of the record he was asked if he had anything to say and in response he apologized to the company for any wrong doing.  That was in fact the opportunity for him to mitigate if he had anything more to say.

The Appellant also says the penalty of dismissal was harsh.  However, it is now established law that once an act of misconduct goes to the root of an employment contract, the employer can dismiss Toyota Zimbabwe vs Posi 2008 (I) ZLR 173 at 179 F.  Any misconduct which has an element of dishonesty goes to the roof of the employment contract therefore given the principle enshrined in Toyota Zimbabwe vs Posi, the Labour Court cannot interfere with the Disciplinary Committee’s penalty on appeal.

The appeal is therefore dismissed, with each party paying its own costs.

E.F NDEWERE

PRESIDENT

GEORGE MAKINGS LEGAL PRACTITIONERS – RESPONDENT’S REPRESENTANTIVE