Given Mhlanganise v Wattle Company Limited

IN THE LABOUR COURT OF ZIMBABWE                      JUDGMENT NO. LC/MC/03/2013
HELD AT MUTARE ON 06 FEBRUARY, 2013                      CASE NO. LC/ MC/43/2011
In the matter between



GIVEN MHLANGANISE                                    –              Appellant
And

WATTLE COMPANY LIMITED                               –              Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant        - N.P. Goneso (Legal Practitioner)
For Respondent       - D.V Gapare (Legal Practitioner)


MATANDA-MOYO, L.

      This is an appeal against the decision of Respondent’s appeals committee

which ordered the dismissal of Appellant from employment.                      The Appellant

abandoned the other grounds of appeal save for ground of appeal number 5

which reads;


      “5. The decision given was too harsh as the company did not lose anything as the funds paid
      were recovered according to the chairman’s comments on sheet number 5, marked X.”


      The brief facts are that Appellant was employed by the Respondent as a

forester. His duties involved raising invoices on work done. Appellant raised

invoices for work which was either not done at all or if done not properly done.

Invoices were raised and paid for work allegedly done on compartment 045. In

reality no work was done on that compartment. He also raised invoices for work

done on compartment number Nyr108 when certain corrections needed to be

done on that compartment. Invoices were only to be raised on satisfactory
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completion of work done.           As a result Appellant was charged with gross

negligence in violation of offence 22 – a category D offence of Respondent’s

code of conduct. He was found guilty and dismissed from employment.



      Appellant submitted that he was never convicted of gross negligence. He

submitted that he was only convicted of ordinary negligence.                        Appellant

submitted that the proper penalty for ordinary negligence was a written

warning for a first offender.



      Respondent submitted that Appellant was charged with gross negligence.

Appellant pleaded guilty to the offence of gross negligence. On page 15 of the

record which are minutes of the disciplinary committee hearing it is clear that

the Appellant indeed pleaded guilty to the charges



      Line 9”Chairman:So how do you plead?
             Mahlanganise: Yes I made a mistake,108 was invoiced but there were corrections that
             needed to be done……
             Chairman: how do you plead guilty or innocent?
             Mahlanganise: I was wrong I accept.”


      I agree with Respondent’s submission that Appellant was charged with

gross negligence. When he said he was wrong he was pleading guilty to gross

negligence. Appellant pleaded guilty to two counts of gross negligence. I am

satisfied that once there was a guilty plea, it became proper for Respondent to

accordingly convict the Appellant on the charges read out to him.



      The real issue before me is whether the penalty of dismissal was

inappropriate in the circumstances? I understood Appellant’s argument that the
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penalty was excessive if the proper conviction was of ordinary negligence. I did

not understand Appellant’s counsel to be arguing that if Appellant was properly

convicted on two counts of gross negligence that the penalty was excessive.

Appellants argument was that he was convicted of ordinary negligence and

quoted the Chairman’s words at the bottom of page 18 of the record. The

Chairman said;


      “His case is a clear indication of negligence.”



The Chairman when he said so was not pronouncing the conviction. On line 4

on the same page that’s where the Chairman said;


      “The defendant has already pleaded guilty; can we get further mitigating factors’’
It is clear that the Appellant pleaded guilty to gross negligence.



In the case of Merchant Bank of Central Africa vs James Dube SC6/04 the

court said;


      ‘Although gross negligence is incapable of precise definition, an entire failure to give
      consideration to the consequences of one’s actions or omissions, or a total disregard of one’s
      duty would constitute gross negligence see Bickle vs Joint Ministers of Law and Order 1980
      ZLR 36 (GD) at 41A-C.’’


The Appellant’s conduct of raising invoices for work not supervised clearly falls

within the above definition. I therefore find no fault with the conviction on

gross negligence.




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Let me now deal with the issue of penalty. Was dismissal justified in the

circumstances? The issue as to the nature of penalty to be imposed on an

employee who has committed a misconduct largely falls within the discretion of

the employer. In the case of Nampak Corrugated Wadeville vs Khoza(1999) 2

BLLR 108 (LAC) at page 113F-1 it was held;


      ‘’the determination of an appropriate sanction is a matter which is largely within the
      discretion of the employer. A court should therefore not lightly interfere with the sanction
      imposed by the employer unless the employer acted unfairly in imposing that sanction. The
      question is not whether the court would have imposed the sanction imposed by the employer,
      but whether in the circumstances of the case the sanction was reasonable. It seems to me that
      the correct test to apply in determining whether a dismissal was fair is that enunciated by
      Lord Denning Mr in British Leyland UK Limited vs Swift (1981) IRLR 91 at 93 paragraph
      11 which is:
      “Was it reasonable for the employer to dismiss him? If no reasonable employer would have
      dismissed him, then the dismissal was unfair. But if a reasonable employer might have
      reasonably dismissed him, then the dismissal was fair.’’



The Supreme Court in the case of Circle Cement (Pvt) Limited vs Chipo

Nyawasha SC 60/03 at page5 of the cyclostyled judgement had this to say;



      ‘’Once the employer had taken a serious view of the act of misconduct committed by the
      employee to the extent that it considered it to be a repudiation of contract which it accepted by
      dismissing her from employment the question of a penalty less severe than dismissal being
      available for consideration would not arise - -----‘


      It is therefore a settled principle that the courts would not be too quick to

interfere with the penalty imposed by the employer unless the penalty was

unreasonable and unjustified. Appellant in this case caused payments to be

effected when no work had been done. Those invoices he raised did not

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represent the truth. An element of dishonesty could be seen in the manner the

offence was committed. Appellant purported to have inspected the work done

when he had not done so. On compartment 045 the supervisor had even told

him that no work had been done on that compartment.



      Accordingly the decision to dismiss Appellant from employment was not

only proper but was also justified in the circumstances. I see no reason to

interfere with the penalty imposed.



In the result the appeal fails and be and is hereby dismissed.




Goneso and Associates– Appellant’s Legal Practitioners

Scalen and Holderness- Respondent’s Legal Practitioners




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