Multiple Star (Pvt) Ltd v Godwin Nyakudya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/395/14
HELD AT HARARE 18TH JUNE 2014
CASE NO
JUDGMENT NO LC/H/395/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/395/14

HELD AT HARARE 18TH JUNE 2014			CASE NO LC/H/74/13

& 4TH JULY 2014

In the matter between:-

MULTIPLE STAR (PVT) LTD				Appellant

And

GODWIN NYAKUDYA					Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Ms T Mawora (Legal Practitioner)

For Respondent		Mr G Pendei (Trade Unionist)

MURASI, J:

Respondent was in the employ of the appellant.  Respondent was caught sleeping on duty and cautioned by appellant’s senior employee.  He was caught in the act again on the same day and was hauled before a disciplinary committee which recommended his dismissal.  The internal appeals authority upheld the penalty and the matter finally ended up with the arbitrator.  The arbitrator was of the view that the penalty of dismissal was too harsh and substituted it with a Final Written Warning valid for twelve (12) months.  Respondent was to be reinstated without loss of pay and benefits.  Appellant is dissatisfied with the arbitrator’s ruling and has approached this Court.

Appellant’s grounds of appeal are as follows:

The Honourable Arbitrator erred and misdirected herself when she set aside the dismissal of the respondent by the Disciplinary Committee on the grounds that the Disciplinary Committee failed to consider mitigating factors which were not there.

The Honourable Arbitrator erred and misdirected herself when she stated that there was no evidence of habitual misconduct, when it was there and adduced at the hearing.

The Honourable Arbitrator grossly erred and misdirected herself when she deemed the respondent’s misconduct as not gross and therefore warranting a lesser sentence.

The Honourable Arbitrator misdirected herself when she deemed the dismissal excessive when in reality it was the proper discipline for the nature of the misconduct.

Appellant submitted that respondent’s conduct of purposefully going to

sleep during working hours, and after having been rebuked on the same day, is an offence depicting gross negligence.  It was submitted that respondent’s conduct was serious enough to go to the root of the contract of employment.

Respondent’s representative submitted that appellant’s grounds of appeal did not amount to points of law as provided in section 98 (10) of the Labour Act, [Chapter 28:01].  It was argued that appellant should show that there was a gross misdirection on the part of the arbitrator.  It was further stated that the arbitrator had correctly come to the conclusion that the penalty of dismissal was too harsh in the circumstances.

The Court will consider appellant’s grounds of appeal in turn. In the first ground of appeal, appellant avers that the arbitrator erred and misdirected herself when she set aside the dismissal of the respondent on the grounds that the disciplinary committee failed to consider mitigatory factors which were not there.  The arbitrator’s findings on this fact are as follows:

“Basically the law requires any adjudicating authority to consider mitigatory factors before imposing the ultimate penalty.  The heads of argument submitted by the respondent lack corroborative evidence in regard to whether the disciplinary authority considered mitigatory factors.”

A reading of the arbitral award does not show what mitigatory factors the arbitrator found in favour of respondent.  Further, respondent has not advanced what mitigatory features acted in his favour.  The Court finds that the arbitrator made a finding which was not supported by the evidence in the record.

In the second ground of appeal, appellant stated that the arbitrator erred and misdirected herself when she stated that there was no evidence of habitual misconduct when it was there and adduced at the hearing.  The Court is of the view that this is a matter of semantics.  The evidence shows respondent was found asleep and cautioned.  Appellant’s senior employee came back and found respondent asleep on some hastily prepare bed.  This was repeated conduct by the respondent.  It may not be habitual in the sense of that word, but what appellant’s stance during the hearing was is that this was repeated conduct.  The arbitrator should have explained in her judgment what she meant by “habitual” when appellant was making reference to “repeated” evidence.  Appellant’s evidence was never to state that this was “habitual” conduct but that the respondent had “repeated” the offence on the same day.  The Court is of the view that appellant’s point is therefore with merit.

In the third ground of appeal,  appellant states that the arbitrator grossly erred and misdirected herself when she deemed the respondent’s misconduct as not gross and therefore warranting a lesser sentence.  The arbitrator’s reasoning on this issue is as follows:

“… but there was no sufficient evidence to reveal the habitual conduct of the claimant.  I am in agreement with the claimant that a dismissal penalty was excessive and punitive given the fact that the respondent did not suffer any prejudice.  Whilst I am in acknowledgement that the claimant’s duties and responsibilities do not allow sleeping on duty, the disciplinary authority imposed a harsher penalty and there is no evidence of how this decision was arrived at.”

The Court finds it difficult to grasp the reasoning in the above paragraph.

The arbitrator does not demonstrate in what way the penalty was “excessive and punitive.”  The arbitrator is “in acknowledgement” that respondent’s duties did not permit that he sleep on duty.   Respondent went on to go back to sleep after being cautioned.   There is no evidence to show that respondent was apologetic after being found asleep.  In fact, it has been submitted on his behalf that he went to sleep because he had earlier on been “disturbed” whilst on his “resting hour”.  The arbitrator does not give cogent reasons for deeming that a lesser penalty befitted the respondent.  As regards the question of prejudice the following passage in Innscor v Chimoto SC 06/12 is instructive:

“The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers.”

In casu respondent was supposed to monitor the machines which were running whilst he was asleep.  For respondent to state that there was no prejudice and danger to life and machinery is being dishonest.  If there was no such danger, he would not have been employed in that position.  The Court finds that the arbitrator misdirected herself on this score in that she did not clearly take the evidence adduced into consideration.  The arbitrator did not state why she was of the view that respondent deserved diminished punishment for his misconduct.

Having found that the arbitrator misdirected herself, what then is the appropriate penalty in the circumstances?  In Nampak Corrugated Wapeville v Khoza [1997] 2 BCLR 108 [LAC] at 11 F – 1 it was held:

“the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  A Court should therefore not lightly interfer with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction.  The question is not whether the Court would have imposed the sanction imposed by the employer but whether in the circumstances of the case the sanction was reasonable.”

The Court is of the considered view that a reasonable employer would have dismissed respondent because he deliberately went to sleep after being rebuked.  The arbitrator misdirected herself in stating that a lesser penalty should have been imposed on respondent.  It is therefore not necessary to consider the fourth ground of appeal.

There is a matter the Court has to deal with in which the arbitrator made a finding.  The arbitrator stated that appellant had delayed in holding the hearing after suspending the respondent.  To this end the arbitrator had stated that appellant should pay to respondent salaries and benefits from the date of suspension to the date of dismissal.  The Court inquired from appellant’s counsel and she conceded that it was just and equitable to have appellant pay the salaries and benefits in question.  The Court is of the view that this was a proper concession.

In the result, the Court finds that the appeal is with merit and succeeds.

The Court makes the following order:

The appeal, being with merit, succeeds.

The arbitral award of Honourable P Mutsinze is set aside and substituted with “Claimant’s appeal is dismissed.”

Appellant is ordered to pay salaries and benefits due to respondent from the date of suspension to the date of dismissal.

There is no order as to costs.

Pundu & Company, appellant’s legal practitioners