Overnight Express (Private) Limited v Albert Rwizi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/628/14
HELD AT HARARE ON 2nd JUNE, 2014
CASE NO. LC/H/255/13
AND 26TH SEPTEMBER, 2014
JUDGMENT NO. LC/H/628/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/628/14

HELD AT HARARE ON 2nd JUNE, 2014      CASE NO. LC/H/255/13

AND 26TH SEPTEMBER, 2014

In the matter between:-

OVERNIGHT EXPRESS (PRIVATE) LIMITED		Appellant

And

ALBERT RWIZI								Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. Peresu (Legal Practitioner)

For Respondent: 	Mr. Marimo (ZIBAWU)

MHURI J.:

Appellant was aggrieved by an arbitral award wherein the Arbitrator found that Respondent had been unfairly dismissed and ordered his reinstatement with full pay and benefits or alternatively that he be paid his back pay and damages in lieu of reinstatement.

As a result, Appellant filed this appeal citing six grounds. Which basically are a challenge on the Arbitrator’s factual findings.  In terms of Section 98(10) of the Labour Act (Chapter 28:01) only appeals on a point of law lie to this Court.  Factual findings are not appealable unless a gross misdirection on the facts is alleged and shown.

FLORENCE CHIYANGE V JAGGERS WHOLESALERS SC

In casu, Appellant has alleged and shown that the Arbitrator, grossly misdirected himself on the facts which misdirection amounts to a misdirection on the law.

The appeal is therefore properly before the Court.

Respondent was employed by Appellant as a debt collector tasked with among other duties, collecting and receipting monies from drivers.  He was charged with two acts of misconduct in terms of the national Code of Conduct Statutory Instrument 15 of 2006.  The two charges were:-

“Any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract”

Section 4 (a) and

“theft/fraud”  Section 4 (d)

He was found guilty on the 1st charge and was absolved of the 2nd charge of theft/fraud.

In his analysis of the evidence submitted before him, the Arbitrator observed that the charge pertained to the flouting of established and agreed company cash handling and receiving procedures from the drivers which resulted in financial prejudice to Appellant.  He also observed that a dismissal to be justifiable under this charge the breach should be serious and be subject to mitigatory factors.  The Arbitrator further observed that the employer may not just allege that there is conduct inconsistent with the contract, but must cite the actual conduct and how it is inconsistent with the contract.  He made the point that the charge is linked to an employee’s contract of employment.

It was found as a fact that the Appellant failed to produce the Respondent’s contract of employment and that this was fatal.  It was also observed that the Appellant had not attached the cash handling procedure which was the basis of the charge.

It is trite that a contract of employment can either be in writing or verbal.

Section 12 (1) of the Labour Act (THE ACT) provides

“Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person whether such contract is reduced in writing or not.”

It is clear from the above subsection, more particularly the underlined, that a verbal contract of employment is recognized at law.  The failure to produce a written contract by Appellant cannot therefore be held to be fatal.

Section 12(2) and 125 of the Act relied upon by the Arbitrator do relate to particulars which the employer must put into writing e.g.

Name and address of employee.

Duration of engagement.

Terms of probation.

Terms of employment code.

Remuneration its calculation and interval of payment.

Benefits in times of sickness or pregnancy.

Hours of work.

Bonus if any vacation leave pay.

Any other benefits

And records to be kept by employer in respect of any agreement (Collective Bargaining Agreement) determination or regulation which is binding under the Act, in relation to

Remuneration

Time of work

and other particulars.

These sections in my view do not relate to a contract of employment or job description.  To that end, I find that the Arbitrator grossly erred when he ruled that it was fatal for Appellant not to have produced a contract of employment.

It is not in dispute that Respondent was employed as a debt collector.  He was aware of his duties in this capacity namely to inter alia receive and receipt monies collected by drivers.  Even though Appellant did not avail the job description, Appellant was aware of what his duties entailed.  This was confirmed by the Arbitrator when he made the observation that Respondent (Appellant) relied on a document where the Applicant (Respondent) wrote his duties on a piece of paper.  The hand written document dated 16th July, 2011 and addressed to Management is filed of record (page 65).  It stipulates the procedure for receipting.  It was Appellant’s allegation that there were discrepancies in the amounts collected and receipted.

The Arbitrator made and confirmed in his observation that there were these discrepancies and that the charge correctly so in my view is one of the employees duties of good faith.

From this, it is clear that the Arbitrator was alive to the fact that Respondent was not blameless.  In his grounds of appeal to the Appeals Authority, Respondent concedes to making two mistakes in May and another two in June 2011, though he attributed this to working in an environment which had no procedures.  He submitted that the prejudice of $226 was immaterial and should not call for a punitive but correctional measure.

In his analysis of the evidence, the Arbitrator held that the charge went to the root of the employees contract.

Having so held, I find that the Arbitrator grossly misdirected himself when he then found that the dismissal was unfair and ordered reinstatement and did not order Appellant to pass another penalty which would have met the justice of the case.

The Disciplinary Authority and the Appeals Authority found and this was also the Arbitrator’s finding that the act of misconduct went to the root of the contract of employment.  In the exercise of their discretion and after considering the mitigatory and aggravating factors both the Disciplinary Authority and the Appeals Authority imposed and confirmed respectively the dismissal penalty.

Was the discretion not judiciously exercised by the tribunals aquo to warrant interference with the penalty by the Arbitrator?  I do not think so.  The Disciplinary Authority found and so did the Arbitrator that the act goes to the root of the contract and that the charge is one of employee’s duties of good faith.  There was breach of trust as a result of the conduct or omission on the part of Respondent.  There was prejudice suffered by Appellant.

It is an established principle that an Appellate Court should not interfere with the discretion of the sentencing court.

In STATE V. NHUMWA SC 40/88 Korsah JA (as he then was) at page 5 of the cyclostyled judgment stated –

“It is not for the Court of Appeal to interfere with the discretion of the sentencing Court merely on the ground that it might have passed a sentence somewhat different from that imposed.  If the sentence imposed complies with the relevant principles even if it is severer that the Court would have imposed, sitting at a Court of 1st instance, this Court will not interfere with the discretion of the sentencing Court.”

In the case of

TREGERS PLASTICS (PRIVATE) LIMITED V

WOODRECK SIBANDA

PAUL MAGONDO SC 22/12

Ziyambi JA reiterated the principle at page 2 of her judgment that:-

“It is now settled law that where the misconduct goes to the root of the employment relationship an employer is entitled to dismiss the employee.  Further, the principle has now been firmly established that an Appellate court will not interfere with an exercise of discretion by the employer unless there has been a misdirection in the exercise of such discretion.”

As alluded to, there was no improper exercise of discretion by the Disciplinary Authority.  It found that there was breach which went to root of the contract.  There was prejudice suffered.  There was breach of trust.  By his qualification and experience, Respondent failed to perform to the standard expected of him.  After analyzing the Disciplinary Authority’s reasoning on the penalty, the Appeals Authority found no basis to interfere with the exercise of discretion by the Disciplinary Authority.  It then confirmed the penalty.

The Arbitrator ought to have followed suit, but did not.  He grossly misdirected himself by tampering with the exercise of discretion by the Disciplinary Authority.

In the result, the appeal is allowed.

It is therefore ordered that the appeal be and is hereby allowed with costs.  The Arbitrator’s award be and is hereby set aside.  The Appeals’ officer’s decision confirming Respondent’s dismissal be and is hereby confirmed.

Honey and Blanckenberg – Appellant’s Legal Practitioners

ZIBAWU – Respondent’s Legal Practitioner