Nicholas Ngorima v Triangle Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/746/13
HELD AT HARARE 10TH SEPTEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/746/13

HELD AT HARARE 10TH SEPTEMBER 2013           CASE NO LC/H/141/13

& 31ST JANUARY 2014

In the matter between:-

NICHOLAS NGORIMA				Applicant

And

TRIANGLE LIMITED				Respondent

Before The Honourable Makamure, Judge

For Applicant		Mr R Matsikidze (Legal Practitioner)

For Respondent		Mr E.T. Moyo (Legal Practitioner)

MAKAMURE, J

This is an application for review of a decision by the respondent dismissing the applicant from its employ.  The applicant was aggrieved by the following:

That no oral evidence was called to enable him to cross examine witnesses;  that there was unnecessary  splitting of charges; that – the Appellant was found guilty of an offence which he was not originally charged with; that on appeal within the internal process the Appellate Tribunal was not supposed to call for evidence; that the internal review process was improperly exercised.  The applicant was also aggrieved by the Disciplinary Committee’s decision to impose the penalty of dismissal under the circumstances of this case.  The applicant was further aggrieved that the dismissal penalty was imposed without considering mitigation.  The Labour Act

[Chapter 28:01] (The Act) makes it peremptory for mitigation to be considered before a penalty is imposed.  Section 12 B (4) of the Act provides as follows:

“(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

I find it unfortunate that despite the provisions of The Act being so clear,

Employers continue to disregard these provisions and proceed to penalize errand employees without  considering mitigation.  This is a clear violation of the Act and the tenets of natural justice the stage of sentencing.  It must be clearly stated that this Court will not tolerate this type of conduct from employers.  It is unfair.  For this reason I find it unnecessary to consider the other grounds for review.  That failure by the appropriate tribunal to consider mitigation only serves to unnecessarily prolong litigation.  This flies straight in the face of the purpose of The Act.  Having stated the above the employer must correct the omission.

The decision of the employer is set aside.

Accordingly it is ordered that

The matter be and is hereby referred back to the employer for the employer to consider mitigation before passing the appropriate penalty.

The matter should be concluded within thirty (30) days receipt of this order.

(i)	Should the matter be not concluded in terms of (2) above, the

employer will be taken to have reinstated the appellant to his original position with no loss of salary or benefits.

(ii)       Should the reinstatement in terms of 3 (1) not be possible the

employer is ordered to award the appellant the appropriate   damages as agreed between the parties.  In the event that parties fail to agree either party may approach this Court for quantification.

Matsikidze & Mucheche, Appellant’s Legal Practitioners

Scanlen & Holderness, Respondent’s Legal Practitioners