Ngoni Mukanwa v Zimbabwe Electricity Transmission & Distribution Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/199/16
HELD AT HARARE 18 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/199/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/199/16

HELD AT HARARE 18 FEBRUARY 2016			CASE NO LC/H/624/15

& 8 APRIL 2016

In the matter between:

NGONI MUKANWA						Appellant

And

ZIMBABWE  ELECTRICITY TRANSMISSION &			Respondent

DISTRIBUTION COMPANY

Before The Honourable F C Maxwell, Judge

For Appellant			Mr C Muchichwa (Trade Unionist)

For Respondent		Mr M Baera  (Legal Practitioner)

MAXWELL, J:

This is an appeal against the decision of the respondent’s Appeals Committee to uphold the decision of the disciplinary authority dismissing appellant from employment.

Appellant was employed by respondent.  He was charged and convicted of disorderly or objectionable behaviour, that is to say, abuse of office or position.  The allegations were that he deliberately abused his authority and power when he instructed his line gang  crew members to illegally construct an MV Line to feed house Number 7358 Manyame Park using company resources without the permission of the Senior Customer Services Officer.  Upon conviction, a penalty of dismissal was meted out.  He appealed internally but was not successful.  He subsequently approached this court on the following grounds.

Respondent’s Appeals Committee erred at law in upholding the guilty verdict whereas the evidence adduced was insufficient to sustain the charge preferred.

The penalty meted out by respondent’s Appeals Committee is so severe and grossly disproportionate to the charge so as to induce a sense of shock.

Appellant prayed for the decision of the Appeals Committee to be set aside and that

he be found not guilty and reinstated without loss of salary and benefits.  Appellant also prayed that alternatively he be found guilty and a lesser penalty be imposed.

In response respondent stated that the evidence before the committee was sufficient to convict appellant beyond a reasonable doubt.  Respondent also stated that the penalty meted out is neither severe nor grossly disproportionate to the charge to the extent of inducing a sense of shock as the act of misconduct for which the appellant was convicted has a mandatory penalty of dismissal as it is a severe breach.

It is trite that an appeal is dealt with on the four corners of the record.  See Sirdars Manufacturers (Pvt) Ltd v Chinga 1995 (1) ZLR 368.  Rule 15 of S.I. 59/06 enjoins the appellant to file, together with Form LC 3 any documents that may be necessary and are relevant to the appeal.  In casu appellant filed his grounds of appeal and only attached the decision sought to be appealed against. It is in the light of those documents that the appeal will be dealt with.

Ground of appeal 1 – Whether or not there was sufficient evidence

In oral argument, appellant’s representative referred to inconsistencies in witness evidence.  He also referred to the minutes of the hearing.  The record of proceedings was not placed before the court.  At the end of the hearing, the court extended on indulgence to the appellant and requested that the record of proceedings be availed.  The hearing was on 18 February 2016.  By the 10 March 2016 nothing had been availed.  The Registrar’s efforts to remind the parties of the court’s indulgence did not yield any result.  There is therefore nothing before the court to use in assessing the evidence that was led at the disciplinary hearing.  Appellant’s allegations have therefore not been substantiated and cannot be supported.  I therefore find no merit in the first ground of appeal.

Ground of appeal 2 – Penalty

It is trite that the issue of an appropriate penalty is the prerogative of the employer.  See Malimanji v CABS 2007 (2) ZLR 77.  Appellant argues that the penalty is severe and grossly disproportionate to the charge yet respondent states that the penalty of dismissal is prescribed by the Code of Conduct for the misconduct appellant was convicted of.  It is a settled principle that once an employer has taken a serious view of the act of misconduct committee by the employee and dismissed him from employment, the question of penalty less severe than dismissal being available for consideration does not arise unless it is established that the employer acted unreasonably in having a serious view of the offence committed by the employee.  See Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03.  The alternative prayer by the appellant is an acceptance that there is basis for a finding of guilty of the offence charged.  He is praying for a lesser penalty to be imposed.  No legal basis has been laid for the court to interfere with the discretion of the employer.  In oral submission it was stated that the findings of the disciplinary committee do not indicate that mitigation factors were taken into consideration. Appellant’s representative was improperly raising a procedural issue.  The second ground of appeal therefore has no merit and it will not succeed.

Wherefore the following order is appropriate

The appeal be and is hereby dismissed for lack of merit.

Baera & Company, respondent’s legal practitioners