Last Dumba v Inscor Africa Limited

IN THE LABOUR COURT OF ZIMBABWE                        JUDGMENT NO. LC/H/226/2013


HELD AT HARARE ON 28th FEBRUARY 2013             CASE NO. LC/H/265/12


In the matter between



LAST DUMBA                                                                   Appellant


And


INNSCOR AFRICA LIMITED                                  Respondent


For Appellant     :   Mr S. Macheso (Unionist )
For Respondent :      Ms G. Nyamayi (Legal Practitioner)




KUDYA .L


      This is an appeal against the decision of the Respondent where it dismissed

the   Appellant   following   misconduct       allegations   of   embezzlement,   willful

disobedience to a lawful order and gross negligence of duty in contravention of

the Innscor Code of conduct.




      On the 8th of March 2012 Appellant who was in the Respondent’s employ

received a notification to attend a disciplinary hearing on the basis of the below

stated facts:




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1. That the trucks which he was using between January 1 and January 31 2012 were

achieving fuel consumption which was below plan.

2. On 24 January 2012 he damaged a fuel pump at Bonanza service station which

pump Respondent had to pay for. When he was asked to write a report about the

incident Appellant refused to do so thus committing the offence of failing to obey

a lawful order.

3. He refused to sign disciplinary notification letters which were handed to him for

acknowledgment so that he could attend the hearings. He did not attend on15

February 2012 and matter was thus rescheduled to 21st February 2012.




      He attended the 21st February 2012 hearing. After deliberations by the

Disciplinary Committee the Appellant was found guilty of the misconduct charges

in question and consequently dismissed from employment. Aggrieved by the

dismissal, he appealed to the Respondent’s internal appeals body. The appeals

body also confirmed the verdict and the dismissal penalty. Dissatisfied by that

ruling he then appealed to the Labour Court.




The basic grounds of the appeal are:

1. The Disciplinary Committee and the Appeals Committee acted outside the

timelines stipulated by the Code of conduct. That delay thus vitiated the dismissal

decision.

 2. There was no procedural fairness in that the Disciplinary Committee was

improperly constituted as it did not contain workers’ representatives as required

by the Code of conduct. The Appellant did not understand the charges leveled


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against him but the Disciplinary Committee nevertheless found him guilty without

fully explaining the charges to him. Appellant was not given the chance to present

his case as required by the Code of conduct.

3. The accident was not willful but one of negligence and no expert evidence was

led on that aspect to prove the veracity of the allegations in that respect.

4. The Respondent did not consider carefully the length of service of the Appellant

and his disciplinary record to the extent that if it had done so it could have arrived

at a penalty lesser than dismissal.




      Appellant therefore, prayed that he be reinstated without loss of pay and

benefits to his original position or alternatively that he be paid damages in place of

reinstatement if reinstatement was no longer viable.




On the other hand, the Respondent maintained the following in its response to the

appeal:

   1. Appellant agreed to have the Disciplinary Committee deal with his case in

      the absence of the employee representatives. To that extent, he waived his

      right to allege improper composition of the said Committee.

   2. Appellant occasioned the delay in the conclusion of his case because, he

      failed to attend the hearing on the dates scheduled for the hearing .In any

      event, if he was of the view that there was breach in that respect it was up to

      him to refer the matter to a Labour Officer but he chose not to exercise that

      right.




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   3.   When the charges were raised, he did not say he did not understand the

        charges but that he denied them. To that extent the panel broke no rules

        pertaining to the hearing. In fact the questions it asked him were all in an

        attempt to remind him of what the charges related to.

   4. Appellant was given a chance to present his case and evidence. His failure to

        do so cannot be blamed on the Respondent.

   5. The panel carefully considered all the facts and arrived at a well-reasoned

        decision.

   6. The Respondent did no cover up the issue of employee representation by

        bringing in such a representative at the Appeals stage.

   7. The Appellant never advised the Disciplinary Committee that the accident

        was caused by a mechanical fault. If anything, he paid an admission of guilt

        fine on the negligent driving charges.

   8. The decision arrived at by both panels was just in the circumstances hence

        should be made to stand.




   The law in relation to appeals of this nature is clear in that, the decision of the

lower tribunal can only be set aside b y the appellate court if the manner in which

the tribunal exercised its discretion was outrageous or devoid of reasoning on its

assessment of the facts in the particular case. See Nyahondo vs Hokonya and

others 1997(2) ZLR 475(SC)




        Further to that it is also settled law that where procedural irregularities are

alleged, these ought to be put right by either remitting the matter to be heard in a

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procedurally correct fashion or for the court seized with the matter to hear

evidence on the issue in contention thus regularizing the complaint raised .See

Merchant Bank of Central Africa vs Dube 2004 (1) ZLR 155




      It is also settled law that, the penalty to be meted in a particular case is at

the discretion of the employer unless it can be demonstrated that the penalty was

decided upon in circumstances where the facts of the particular case dictate

otherwise. See Malimanji vs CABS 2007 (2) ZLR 77(S)




      Applying the above legal principles to the facts of the case at hand it is

pertinent to note that as correctly indicated by the Respondent, when the

Appellant appeared before the Disciplinary Hearing Committee he was asked

whether he was happy with the panel and he responded in the affirmative. For him

to now turn around and argue that it was an irregularly constituted is ill-founded

as he effectively waived his right to challenge the composition in question.




      Even if the court were to accept that the composition was irregular the test

to be applied is whether the irregular composition prejudiced the applicant. From

the evidence on the record the court did not find anything which demonstrates

such prejudice. The Appellant also indicated that at the appeal level the employee

representatives were now there but there is nothing on the record which suggests

that such a change added or took away anything from the Appellants guilt. The

court is satisfied that the irregularity complained of in respect of the composition

of the panel did not in any manner vitiate the decision by the Disciplinary Hearing



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Committee and the Appeals Committee. To that extent, the ground of appeal on

the composition of the panel should accordingly be dismissed.




      As regards the argument that, the Appellant was not heard, the record is

clear that when the charges were put to the Appellant he was invited to respond to

the charges in question. There is nowhere in the record where it says that he

misunderstood the charges neither was he denied the chance to raise the defence

of faulty brakes which he sought to raise at the appeals stage.




     The law is clear that appeals are decided on the four corners of the record.

Issues not raised at a prior hearing cannot be raised on appeal See Chikanda vs

United Touring Company SC 7/ 99. The Appeals Committee in the court’s view

correctly held that the brakes issue was an afterthought which could not absolve

the Appellant. The court is satisfied that there was no misdirection on the part of

the Appeals Committee in that respect.




      Whist the court observed that the           Disciplinary Committee kind of

abandoned the embezzlement charges as these were not deliberated at all, it is

clear that the remaining charges were dealt with in a judicious fashion. The court is

not persuaded that there was any misdirection which entitles it to overturn the

decision of the tribunal below.




      As regards the delay in the conclusion of the case, the Respondent rightly

observed that it was keen on the matter being concluded within the timelines were


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it not for the postponements at the Appellant’s instance. In any event, even if the

same were breached the duty was on the Appellant to refer the matter to a Labour

officer as required by law. The major test still remains as that of prejudice. There is

nothing on the record which demonstrates that the Appellant was prejudiced by

the alleged delay so there is no merit in that argument.




      A reading of the record shows that, Appellant did no dispute that he failed

to obey a lawful order by refusing to write the report on the incident. He however

argues that he failed to acknowledge the notification letter because the dates on

the letter had elapsed. He does not seem to dispute the fact the dates in question

were eventually changed. It should be noted that, Appellant had done an act which

had occasioned loss to the Respondent and for which he had paid an admission of

guilt fine. The court does not appreciate why it was then necessary for him to

refuse to write a report on the incident and to acknowledge receipt of letters

inviting him to attend a disciplinary hearing on the matter. The court is of the view

that Appellant behaved in an irregular manner by disobeying lawful instructions.

He has only himself to blame for the consequences which then flowed from his

conduct.




      The notes in the record of proceedings demonstrate clearly that Appellant

appreciated the charges he was facing and Respondent elicited from him

responses to the allegations which he was facing. The court therefore could not

find fault with the decision reached by the Disciplinary Committee in that respect.

Appellant’s argument that he was not given a chance to present his side of the

story is not borne out by the record of proceedings. The record shows clearly that


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he was asked if he had anything to say but he said he had none. He chose to bring

the brakes issue irregularly at the appeals stage. This could not detract from the

fact that he was correctly convicted of the infraction in question.




      On the penalty issue, it is noteworthy that the record is silent on whether

the Appellant was invited to submit in mitigation. The Respondent Code of conduct

is silent on the offender’s right to mitigate before he is penalized but the Labour

Act in section 12B(4)mandates adjudicating authorities        to consider mitigation

before meting out a penalty , more particularly where the employer eventually

dismisses the employee.




      In the instant case whilst it is accepted that Appellant erred it is not clear

how the Committee concluded that the dismissal penalty was appropriate without

hearing him in mitigation. It was imperative that the Respondent invite the

Appellant to mitigate. Since it did not do so and the Appellant might have been

prejudiced by that omission it is incumbent upon the Respondent to cure that

defect.




      As stated in the case of Tichawana Nyahuma vs Barclays Bank Private

Limited SC 67 / 05 the procedural irregularities have to be put right .




It is therefore ordered as follows:

   1. Appeal against the verdict being without merit be and is hereby dismissed.



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   2. Appeal against sentence being with merit be and is hereby allowed in view of

   the fact that no mitigation was taken before sentence was meted out.

   3. Matter is remitted to the Respondent to elicit mitigation from the Appellant

   before it metes out penalty on the Appellant afresh. This has to be done within

   30 days of the receipt of this order failing which the Appellant will be deemed to

   be reinstated to his former position without loss of salary or benefits or

   alternatively to be paid damages in place of reinstatement of an amount to be

   agreed upon by the parties or an amount to be set by the court on application

   to it by either party for the same.

   4. Pending the compliance with the remittal order the Appellant remains within

   the Respondent’s employ on the same conditions he was on before his

   dismissal.

   5. Each party bears own costs.




   L.Kudya      ________________________

  President-Labour Court




Z. F. T.U-Appellant’s Representatives

Honey and Blackenberg –Respondent’s Legal Practitioners




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