Kinstone Manyonganise v Zimbabwe Open University

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/623/16
HELD AT HARARE 21 JUNE 2016
CASE NO
JUDGMENT NO LC/H/623/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/623/16

HELD AT HARARE 21 JUNE 2016				CASE NO LC/H/745/13

& 7 OCTOBER 2016

KINSTONE MANYONGANISE				Appellant

ZIMBABWE OPEN UNIVERSITY				Respondent

Before The Honourable G Musariri, Judge

For Appellant		E T Moyo, Attorney

For Respondent		G Jaukosi, Attorney

MUSARIRI J:

On 12 September 2013 at Harare, arbitrator M C Kare issued an arbitration award.  He ordered the dismissal from employment of appellant by respondent.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.  The appeal raised three (3) issues which I will deal with seriatim.

Whether the employer has a right of appeal against a decision of its Disciplinary Authority (DA)?

It is common cause that the proceedings in casu were conducted in terms of the National Employment Code S.I. 15/06 (hereafter called the Code).  Appellant was charged with misconduct.  The employer appointed a Dr N T Sambureni as an “Independent Hearing Authority.”  Sambureni determined that appellant be given a final written warning.  Both parties appealed to a Labour Officer.  The employer appealed against the penalty on basis that it was too lenient.  The employee appealed against his conviction.  Both appeals were treated as one matter which was in due course referred to arbitration by the aforesaid arbitrator Kare.  Appeals to a labour officer are provided for under section 8 (6) of the Code as follows

“(6)  A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Committee, as the case may be, may refer the case to a labour officer or Designated Agent, as the case may be, within seven working days of receipt of such decision.”  The underlining is for emphasis.

In this case there was no Appeals Officer or Committee involved.  The matter was

heard by the employer through his appointee Sambureni.  In such a case an employer cannot then appeal against the manner in which he himself handled the matter.  I consider that the employer does not have a right to refer the matter to a labour officer in these circumstances.  His recourse should have been reference to an Appeals Officer as envisaged by section 8 (1) of the Code.

Whether the Arbitrator erred in upholding the guilty verdict?

Appellant worked for respondent as a Finance Manager.  His superior, the Finance Director claimed a reimbursement of USD6000.00 for an expense paid on behalf of respondent.  Appellant processed the necessary requisition.  The Finance Director authorised payment.  Appellant then paid the Finance Director but the latter refused to sign for receipt of payment.  She allegedly stated that it was unnecessary because she had authorised payment.  Appellant was then charged with conduct inconsistent with his employment contract.  I have no doubt that appellant was guilty as charged.  He was obliged to pay against the Finance Director’s signature acknowledging receipt.  He paid but did not get the necessary signature.  As a result the Finance Director later claimed the same amount again as a result of which she was convicted of fraud and dismissed from employment.  It does not matter that the Finance Director was appellant’s superior.  She could not order him to violate the terms of his contract.

Whether the Arbitrator erred in interfering with the penalty imposed by the Disciplinary Authority?

The arbitrator hardly focused on the question of the penalty.  In fact there were only 2 sentences on the last page of the award dealing with the penalty thus

“However, it can safely concluded that the employee(s) who violated the accounting rules knowingly or ignorantly committed a serious misconduct and must be penalised accordingly.”

“The Award

. . . (b) Claimant is to be dismissed for committing a serious misconduct.”

With due respect, the arbitrator grossly misdirected himself.  He treated the matter as one of first instance.  It was not so.  It came to him essentially as an appeal.  The Designated Agent had already imposed a warning as a penalty.  It was incumbent upon the arbitrator to consider whether the Designated Agent misdirected himself in imposing the penalty.  The award shows that the arbitrator did not apply his mind on this point.  As a result this court is at large on the matter of penalty.

The Designated Agent’s determination is filed of record.  He was swayed by the “unusual behaviour” of the Finance Director.  He was also impressed by the otherwise clean record of the appellant.  Though not fully elaborated, this was an attempt to weigh the offence against mitigating circumstances.  The offence is greatly mitigated by the fact appellant’s conduct was induced by the over-bearing conduct his superior, the Finance Director.  She was convicted for fraudulently claiming the refund twice.  Thus the underlying fraud was substantially accounted for by the main culprit.  In my view the warning imposed by the Disciplinary Authority reflected a balanced apportionment of blame in all the circumstances.  Thus there is basis for interfering with the manner in which the Disciplinary Authority exercised his discretion on penalty.

Wherefore it is ordered that

The appeal be and is hereby allowed;

The arbitration award issued by arbitrator M C Kare is set aside;

The determination by Dr N T Sambureni is upheld except for paragraph (2) of his order which is set aside; and

If appellant’s reinstatement is untenable, respondent shall pay him damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this court.

G MUSARIRI

J U D G E