Paul Chinyama v Paramount Exports (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/723/13
HELD AT HARARE 28TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO LC/H/723/13

HELD AT HARARE 28TH NOVEMBER 2013              CASE NO LC/H/290/13

AND 3 JANUARY 2014

PAUL CHINYAMA						Appellant

PARAMOUNT EXPORTS					Respondent

(PRIVATE) LIMITED

Before The Honourable G Musariri, Judge

For Appellant 		Mr K Guteni, Unionist

For Respondent		Ms G Ncube, Attorney

MUSARIRI, G:

Appellant’s grounds of appeal read as follows;

“The Respondent was wrong in erring that I was sitting on a final warning before the alleged offence was committed.

I was never brought to a hearing where the Disciplinary Committee came up with a final warning.  It is disputed.

The Respondent in terminating my services never got lenient given that I had served the company for nearly 20 years without any problem.

I feel it was really constructive dismissal as I was not reprimanded.  If Respondent considered my service I would have either given a final warning or demotion either to general hand as being educational than being punitive on my part.

Furthermore from the reports made as proof no witnesses were brought by the Respondent to testify in person thereby denying me the existence of natural justice see the documented annexed thereto for consideration.

That is all I can say.”

Respondent opposed the appeal.  Its Response pointed out that,

“1.	The appeal does not appear to be an appeal against the decision of the NEC Appeals Board, but against the decision of the Respondent, which was upheld by the Appeals Board.

2.	Appellant was on a final written warning, valid for 12 months, given on 3 October 2012.

3.	Appellant’s length of service was considered by both Respondent and the NEC Appeals Board.

4.	Appellant admitted the offence before the Disciplinary and Grievance Committee, and evidence was given before the Disciplinary and Grievance Committee, and before the NEC Appeals Board, which enabled both bodies to make a decision.”

The appeal raises really one main point to say the penalty of dismissal was excessive in the circumstances. It disputes the existence of a final warning and avers that Appellant’s length of service was not considered.  Appellant relied on a warning which is filed of record. It is dated 3rd October 2012.  Appellant’s name is given as the employee.  The offence is classified as “Major Offence; Inefficiency in work performance.”    The warning reads “You are hereby issued with a final written warning which expires after 12 months.  Any similar offence will lead to your dismissal.”  Appellant and his representative both signed the warning on the date it was issued.  This warning was not challenged.  The allegation that it was not preceded by a hearing does not hold water.  If he was aggrieved, Appellant should have challenged the warning.  He let it stand and therefore he was bound by it.  The alleged offence (Gross incompetence) leading to his dismissal was committed on the

24th October 2012.   The charge was effectively admitted by Appellant.  This was within a month of the issuance of the warning.  Therefore Respondent was within its rights to take the warning as aggravation of the misconduct.  The record suggests that Appellant had a history of misconduct relating to his work performance.  In the circumstances Respondent was justified in terminating Appellant’s employment.

Wherefore it is ordered that;

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

JUDGE