Godfrey Gwenzi v OK Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/662/2013
HARARE, 20 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/662/2013

HARARE, 20 NOVEMBER 2013		           		        CASE NO. LC/H/730/12

AND 06 DECEMBER 2013

In the matter between:-

GODFREY GWENZI					Appellant

And

OK ZIMBABWE						Respondent

Before The Honourable F.C. Maxwell,: Judge

For Appellant		In Person

For Respondent		Mrs R Matsika (Legal Practitioner)

MAXWELL J.;

On 1 June 2012 this Court gave an order remitting the issue of penalty to the Respondent for reconsideration in the following terms.

“The matter is referred back to the Disciplinary Hearing Committee to pass an appropriate penalty in the circumstances”.

Appellant was a branch accountant at Respondent’s Marimba Branch.  Two employees of that branch were bereaved at separate dates.  Appellant authorized the giving of goods in order to assist the bereaved employees.  It was not within his authority to do so.  Respondent values the goods at $112.18.  Appellant was charged and convicted of contravening sections of the OK Zimbabwe Employment Code of Conduct, Appendix 11B, Section 1.2 Serious Offences:

1.2.1.  Any act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of the contract of employment of so serious a nature as to constitute a breach of the contract going to its roots.

1.2.3. Willful and serious breach of established, documented and published company rules, procedures, regulations and standing instructions including, but not confined to till procedures, safety rules, security measures, customer care rules and motor vehicle policies.

1.2.17  Misuse of Authority.

He was subsequently dismissed from employment.  He appealed internally but was not successful.  When he appealed to this Court, the Court raised the appropriateness of charging him three charges from the same facts.  Respondent admitted the error and elected to stand by the first charge.  Respondent also stood by the penalty of dismissal.

The Court felt that the appropriate charge would be a contravention of section 1.2.3, which had been the second charge.  In arriving at the decision in that appeal, the court stated the following:

“Now that it is only one charge and further it is a lesser charge it means that the penalty must be reconsidered.  It is necessary that the Respondent be given an opportunity to reconsider the appropriate penalty in terms of the Code of Conduct.  This penalty must, among others, take into consideration that the Appellant did not benefit personally and neither did he intend to.  A penalty of dismissal appeared inappropriate in the circumstances.  The Respondent must consider whether there is no other adequate penalty.  To arrive at this appropriate penalty it is advised that both parties be invited to address on the penalty.  I am mindful of the fact that a penalty is discretionary.”

On 15 June 2012 the Disciplinary Committee sat to reconsider the penalty.  Appellant was asked to address in mitigation and add anything else he wished the Committee to consider in arriving at an appropriate penalty.  He was thereafter excused from the deliberations.

The prescribed penalty in terms of the Code of Conduct under which Appellant was charged is a dismissal even for a first offence.  The Disciplinary Committee did not find any justification for departing from the prescribed penalty and therefore Appellant was dismissed from employment.

Appellant appealed against that decision internally but the decision of the Disciplinary Committee was upheld.  He thereafter appealed to this Court.  The grounds of appeal are:

The Disciplinary Committee erred when they discussed the penalty issue without me to address on the same as per the Honourable Court judgment.

I did not benefit from the issuance.

First time offender.

The Disciplinary Committee erred when they brought up the issue of policies which was never discussed in my presence hence the committee failed to address the penalty issue as directed by the Court.

Respondent maintained that the offence was so grave as to warrant dismissal.

It appears appellant was laboring under the mistaken view that the Court had ordered the Respondent to “sit and agree on penalty” with him.  He therefore expected to be part of the deliberations that came up with the penalty.  There is no basis for that view.  It appears he misunderstand the Court’s advice that:

“…both parties be invited to address on the penalty”.

The fact that he was asked to address in mitigation and to add anything he felt the Committee should consider fulfilled the advice of the Court.  I agree with the Respondent’s submission that if that approach were to be taken, the employee would become a judge in his own matter and the law does not permit such an approach.  The first ground of appeal fails.

Appellant argues that the fact that he did not benefit from the issuance should reduce the penalty imposed.  I do not agree.  As was stated in the case of Innscor Africa (Pvt) Ltd v Letron Chinoto SC 6/2012.

“The offence committee involved a betrayal of trust and confidence reposed in the respondent by the Appellant thereby going to the root of the relationship between the employer and employee”.

In my view it is immaterial whether or not the employee benefited from that betray of trust and confidence.  He might have done it for the benefit of third parties as in this case but the underlying factor is that he is betraying the trust and confidence the employer had in him, especially in his position as the branch accountant.  I therefore find that there is no justification for interfering with the penalty on the basis that Appellant did not benefit from the issuance.

Appellant has also raised the issue of being a first offender as justification for reduction in penalty.  According to him he has a clean record prior to this and he is not convinced that the employer – employee relationship was affected by these allegations.  The facts of the matter appear to suggest otherwise.  In relation to the second issuance, the Branch Manager was available.  When approached she did not authorize the issuance wanting to understand why it had been done previously.  Appellant nevertheless directed that “items from the list that had been used before” be collected and he would explain to the Branch Manager.  Only the Branch Manager has the authority to take such a decision.  Appellant’s actions can therefore be described as willful disobedience as he deliberately and intentionally went against the Branch Manager.  That goes to the root of the employment relationship.

In the case of Z.B. Financial Holdings v Maureen Manyarara SC 3/2012 it was held that:

“The reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper”.

Also in the case of Toyota Zimbabwe v Richard Posi SC 55/07 the Supreme Court held that the employer was entitled to impose the penalty of dismissal on a first offender for serious offences.

Appellant has also raised the issue that the issue of funeral policies had not been discussed in his presence and the Committee made a decision based on wrong information.  According to him the policies were irrelevant as one was an initiative by employees and the other was only for the death of the employee.  The assisted employees were not to benefit from any of the two policies at the relevant time.  I find that the discussion on the policies was to try and find if there was justification for Appellant’s conduct.  The conclusion reached was that Appellant “was being plain dishonest, mischievous and deliberately breached set procedures.” (page 10 of record)  The fact that the two employees were not set to benefit from the said policies does not excuse Appellant’s conduct.

The question that remains is whether or not there are reasons for this Court to interfere with the penalty imposed by the employer.  According to page 11 of the record,

“The Disciplinary Committee’s perusal of the Code of Conduct revealed that the charge, Appendix 1B, Section 1.2, Serious offences, paragraph 1.2.3, is not a lesser charge and the penalty for a first offence is Dismissal.  The penalty of dismissal is thus not an inappropriate one in Mr Gwenzi’s case,”

In the case of Mashonaland Turf Club v Mutangadura SC 5/2012 it was held that an appeal court will only interfere with the exercise of the employer’s discretion to dismiss on employee found guilty of a misconduct which goes to the root of the contract of employment where there is a misdirection or unreasonableness on the part of the employer.  The circumstances of this case do not warrant that interference.

Appellant was placing reliance on the statement by the Court when it remitted the matter for reconsideration of penalty, that:

“A penalty of dismissal appeared inappropriate in the circumstances.  The Respondent must consider whether there is no other adequate penalty”.

As stated before dismissal is the penalty prescribed in the code of conduct for a first offence under Section 1.2.3.  The Supreme Court has held that:

“Once an employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be repudiation of contract which it accepted by dismissing her from employment, the question of penalty, less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee”

per Malaba JA in Circle Cement (Private) Limited v Chipo Nyawasha SC 60/03.

I find no reason to interfere with the discretion of the employer.  Accordingly the appeal must fail.

Wherefore it is ordered that

The appeal, being without merit, be and is hereby dismissed with no order as to costs.

Wintertons – Respondent’s Legal Practictioners