Lovemore Nyambuya v Riteon Investments Private Limited t/a Greencone Greenhouse Supplies

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/87/2023
HARARE, 20 MARCH, 2023
CASE NO LC/H/988/22
27 MARCH 2023
LOVEMORE NYAMBUYA
RITEON INVESTMENTS PRIVATE LIMITED
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 20 MARCH, 2023
27 MARCH 2023

JUDGMENT NO LC/H/87/2023

CASE NO LC/H/988/22

LOVEMORE NYAMBUYA

APPELLANT

RITEON INVESTMENTS PRIVATE LIMITED
t/a GREENCONE GREENHOUSE SUPPLIES

RESPONDENT

Before the Honourable Musariri Judge:

For Appellant - Mr L. Nyambuya (Appellant)

For Respondent - Mr T. Matonhodze (Attorney)

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal is provided for in terms of section 92D of the Labour Act Chapter 28:01 hereafter called the Act. The grounds of appeal were quintuple as follows,

1. The disciplinary committee grossly mis-directed itself and erred at law when they used the employment code for the national employment council for the agriculture industry when the applicant was above NEC grade. The disciplinary committee should have used statutory instrument 15 of 2006.

2. The disciplinary committee erred at law as it was not properly constituted. The disciplinary committee was chaired by the Director Vant and Mr B. Hulbert being the complainant who suspended the applicant. He is the complainant and at the same time issue a suspension.

3. The committee member Terrence Frost was imposed upon the applicant, representation must be of personal choice and more to that the employee committee member is above applicant’s position in the company.


4. The disciplinary committee’s decision to dismiss the employee was too harsh as it was his first offence for the past 6 years he served the company.

5. The claimant asked for a video evidence recorded by cameras installed in the company and the committee refused to unveil the video that would have exempted the applicant from any wrong doing”.

Save for the 4th ground all the other grounds raise matters for review rather than appeal. They raise matters of procedure like the code used, composition of the disciplinary committee, representation of appellant and alleged withholding of evidence. They do not deal with content and/or correctness of the decisions of the disciplinary committee. The issues raised must be dealt with by way of review as provided for by section 92 EE of the Act as read with Rule 20 of the Labour Court Rules S.I. 150/17. This position is buttressed by hallowed precedents like the case of Charumbira vs. Taxes Commissioner 1998(1) ZLR 584 (S) per Mc NALLY JA at 585 D;

“Judicial; Review as GUBBAY CJ said in Muringi vs Air Zimbabwe … is concerned not with the correctness of the decision, but with the decision making process.”

The 4th ground of appellant avers that the penalty of dismissal were excessive. Applicant’s heads of argument cover the ground in a terse statement thus,

“2.2. The disciplinary committee failed to consider the clean service of the employee as he did not commit any offence for the years he served the respondent.”

Respondent replied with the following quote from Circle Cement v Nyawasha SC 60/03 per MALABA JA as he then was, at p 5

“Once the employer has taken a serious view of the 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 unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

In casu appellant was found guilty of offences classified as “Extreme Offences”. In summary he failed to account for a sum of US$591.78 which he received from a customer for goods sold and delivered. That conduct went to the root of his employment as a Sales Person. He failed to account for the proceeds of a sale he conducted on behalf of Respondent. He breached the trust reposed in him by his employer resulting in the Respondent rightfully taking a serious view of the matter.

That the Appellant was a first offender does not assist him because the question of a lesser penalty does not arise in the circumstances as aptly stated in the *Circle Cement* case. It is therefore concluded that the appeal lacks merit and perforce ought to be dismissed.

**Wherefore it is ordered that,**

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

**G MUSARIRI**

**J-U-D-G-E**
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