Innscor Africa Limited t/a Bakers Inn Manicaland v Passmore Charumezana

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/16/2016
MUTARE, 4 FEBRUARY 2016 &
CASE NO LC/MC/27/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/MC/16/2016

MUTARE, 4 FEBRUARY 2016 &			                CASE NO LC/MC/27/2015

22 JULY 2016

In the matter between

INNSCOR AFRICA LIMITED						APPELLANT

t/a BAKERS INN MANICALAND

versus

PASSMORE CHARUMEZANA						RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	M Mhlanga (H R Manager)

For the Respondent     E G Mwandipe  (Trade Unionist)

KUDYA J:

This is an appeal at the instance of the appellant employer against a decision of the arbitrator who set aside the respondent employer’s dismissal penalty in a case where the respondent had been found guilty of conduct inconsistent with the fulfilment of his contract, theft or fraud and wilful disobedience to a lawful order in contravention of the Model Code.

The facts of the matter are that on 25 March 2014 when the respondent was conducting his internal guard duties at Bakers Inn Sakunda Complex Mutare he picked up a $10-00 note which had been dropped by a customer. When the customer came back to argue with the cashier over his change the respondent is said to have handed over the said $10-00 indicating that someone had dropped it. It is alleged that by the time the respondent handed over the $10-00 he had already been observed picking same by a CC TV footage in the shop concerned. He was charged with the acts of misconduct referred to in the opening paragraph of the judgment.

As regards the disobedience order it was alleged that when he was invited to write a report on the matter he had at first refused to do so. A disciplinary hearing was conducted in respect of his matter. He pleaded guilty to the charges and was penalised by dismissal following a casting of vote by the chairman after the panellists had reached a deadlock with one group suggesting that he be given a final warning and the other group saying he be dismissed.

Aggrieved by his dismissal, he took up his matter with a labour officer and ended up at arbitration where the arbitrator upset the dismissal penalty arguing that it went contrary to the spirit of educating an employee which is the first objective of a penalty before dismissal is settled for. In the result the respondent was reinstated to his original position without full pay and benefits and given a final warning. The reinstatement order did not find favour with the appellant which then noted the appeal to the Labour Court which appeal is the subject of this judgment.

The appeal grounds were styled as:

The arbitrator erred grossly to alter dismissal penalty to a warning in a matter which went to the root of the respondent’s employment contract.

The arbitrator erred to order reinstatement even without benefits because matter still went to root of the contract and penalty for such conduct is clear.

The arbitrator erred to hold that the applicant had to holistically consider meaning of section 7 (1) of the model Code as that section was only meant for cases that did not go to the root of one’s employment.

The arbitrator erred grossly to substitute his discretion for that of the employer even despite noting the respondent’s dishonest tendencies demonstrated by his change of stance after seeing the CC TV footage. Reinstating the respondent in these circumstances was tantamount to compelling the appellant to prove its case beyond reasonable doubt yet that is not the standard required for civil cases.

The arbitrator erred by granting reinstatement of the respondent yet the said respondent had only asked for his terminal benefits.

In the result the appellant prayed that the appeal be allowed and that the arbitral award be set aside whilst the internal appeals hearing decision of the respondent’s dismissal be upheld.

The respondent put in its response belatedly and at the commencement of the appeal proceedings the appellant had prayed for the appeal to be allowed in default of the respondent’s response. The appellant was however persuaded that despite the ill timing of the response it however be allowed so that the matter could be concluded on its merits. In the result the respondent put in the following as his response to the appeal.

The arbitrator should not be faulted for reinstating the respondent since the appellant had dismissed him on theft allegations which it failed to prove. The respondent surrendered the allegedly stolen $10-00 note to management hence he was wrongfully charged for the theft of the same.

The arbitrator correctly held that natural justice per section 2 A Labour Act as read with section 7 (1) dictated a final warning penalty due to the respondent’s clean employment history. Besides even the said warning was in his view unwarranted as there was no theft and he had consequently appealed over that finding in LC/MC/24/16.

The arbitrator need not be faulted for dismissing the appellant’s dismissal decision after observing that it violated the tenets of natural justice and as a tribunal created by law arbitration had a duty to safeguard the provisions of the Act.

The respondent never asked for terminal benefits but only his statutory dues set cut clearly in the annexure to his submissions at arbitration. In the result the respondent prayed for a dismissal of the appeal.

Before dealing with the merits of the appeal it is worth noting that the respondent in his heads of argument maintained at the outset that the appeal was improperly before the court for want of raising points of law as required by section 98 (10) Labour Act. After hearing oral submissions on that point the court ruled that the point in limine was not well founded. It was accordingly dismissed and reasons for that dismissal were said to follow in the main judgment. These are they:

The point of law fact debate is now settled. See Easterbrook SC-18-10.  It is clear from the law set out in the quoted case that a gross misdirection on the facts can be elevated to a part of law. See also Hama v NRZ 1996 (1) ZLR 664 (S).

It is clear from the appellant’s appeal grounds that it is of the view that the arbitrator erred grossly on the facts when he chose to upset the dismissal penalty on account of the fact that technically no theft had been committed since the respondent in due time gave back the money to management and also that by virtue of his clean employment record, an educative and corrective penalty in the form of a final warning would have met the justice of the case.

It is apparent from the above that the appellant put into serious issue the substitution of discretion by the arbitral tribunal for that of the lower internal bodies who were convinced that the befitting penalty was dismissal the clean record and absence of prejudice notwithstanding. It is apparent that such an attack indeed raises a point of law and it puts the matter squarely within what has to be pleaded to found good grounds of appeal against an arbitral award. For the above brief reasoning the court was satisfied that the point in limine had no basis and it had to fail.

Turning now to the main appeal itself it is imperative that the court restates the appellate powers where it is looking at the decision of a tribunal below it. It is settled law that it is not the appellate duty or function to substitute its discretion for that of the tribunal below it. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC) . A glaring misdirection and serious abuse of discretion has to be demonstrated before the award of the lower tribunal is vacated. The critical question in the case at hand therefore becomes “was the arbitrator right in substituting his decision for that of the tribunals below him regard being had to the totality of the facts of the matter at stake. Each of the appeal grounds will be tackled in turn.

Ground 1

It is settled law that where an infraction goes to the root of an employment contract the employer cannot be faulted for dismissing an employee aside the “nominal” nature of what is involved in the matter (in instant case $10-00) and aside the long clean employment history that an employee has. See Innscor v Chimoto SC-6-12. A reading of the records at the shop floor levels demonstrate that the employer took a serious view of the infraction by the respondent because it dented customers’ faith in its dealings with them as it had dishonesty connotations. The fact that the respondent’s admission was punctuated by a realisation that the CCTV had captured all that had happened smacks of dishonest inclinations. Whether or not the theft in the strict sense of the word was proven becomes of academic importance. Besides the standard of proof in labour hearings is proof on a balance of probability. See Zesa v Dera 1998 (1) ZLR 500.

In any event the respondent admitted of his own volition that he had erred as alleged. The fact that he admitted the charges, had a clean record, there was no patrimonial loss all could not excuse the reliance on the principle that if the infraction goes to the root of the contract dismissal is allowed.

A reading of arbitral decision does not show how he ended up wanting to use his own discretion yet he had not made a finding or had no basis to find that the exercise of the penalising discretion by the appellant was outrageous. In the absence of such a finding the court is persuaded that the arbitrator erred grossly to vacate the penalty meted at shop floor level when he had no legal justification to do so.

The appeal grounds being with merit should succeed.

Ground 3

The proponent of the law vis social justice and corrective function of penalties is without doubt. The arbitrator however fell into error as outlined in grounds 1 and 2 above in failing to realise that such propositions would only hold where the infraction complained of does not go to the root of the offence.

In facts of instant case the appellant’s business entails dealing with customers in good faith. An infraction of a dishonest nature no matter how minor will seriously compromise the confidence that the customers have in it. There was therefore nothing remiss in the shop floor level hearings meting out a dismissal penalty even for the “palty”$10-00 note. The arbitrator therefore acted in a grossly unreasonable fashion to fault the manner in which the shop floor levels penalised the respondent. This ground also being well placed should succeed.

Ground 4

As stated in grounds 1 and 2 above the arbitrator was only duty bound to vacate the dismissal penalty if there was serious misdirection in arriving at it by the tribunals below arbitration. The record speaks of no such gross misdirection and the fact that the dismissal was vacated on no cogent basis is what shows that the arbitrator instead seriously misdirected self-warranting that his reinstatement order be set aside. This ground also succeeds.

Ground 5

A reading of the reference to arbitration speaks to the fact that the respondent took up an unlawful dismissal case and asked arbitrator to remedy that if he found in his favour. It is also worth noting that indeed the annexure used by the respondent at arbitration spoke to his statutory dues etc. as spelt out by the annexure D filed of record. It is however noteworthy that in his arbitral pleadings the respondent prayed for reinstatement. To that extent there was nothing remiss about arbitration ordering reinstatement as a remedy. Whether statutory dues or terminal benefits could be subsumed under the umbrella of the respondent’s dismissal is not of critical note. Primarily the respondent felt he had been deprived of his job improperly and he wanted it back with attendant dues. The arbitrator gave that back to him but not in the proper legal context of reasoning used when dismissal was settled on at the outset. In the ultimate the appeal being merited in its entirety it ought to succeed.

IT IS ORDERED THAT:

The appeal being merited in its entirety it be and hereby succeeds. Arbitral award is set aside and the respondent’s dismissal is confirmed. Each party to bear own costs.