Pithius Shoko v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/745/13
HELD AT HARARE 30THSEPTEMBER 2013
CASE NO
JUDGMENT NO LC/H/745/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/745/13

HELD AT HARARE 30THSEPTEMBER 2013        CASE NO LC/H/872/12

& 31ST JANUARY 2014

In the matter between:-

PITHIUS SHOKO						Appellant

And

ZIMBABWE REVENUE AUTHORITY			Respondent

Before The Honourable Makamure, J

For Appellant		Mr R.T. Maganga (Legal Practitioner)

For Respondent		Mr S Bhebhe (Legal Practitioner)

MAKAMURE, J

This is an appeal against the decision of an Arbitrator.  The background to the appeal is as follows

The appellant was employed by the Respondent.  He was charged with wilfully applying a wrong use, or unauthorised purpose to assets or property; or alternatively carrying out an act which is inconsistent with the express or implied conditions of the employment contract.

The facts are that the appellant forwarded pornographic e-mails to some individuals while he was on duty.  A hearing was called for, but was not conducted due to the absence of members of the Workers Committee.  The  matter was therefore postponed indefinitely.  Thirty days elapsed before the matter was concluded.  The Appellant exercisedhis rights and in terms of section 101 (6) of the Labour Act [Chapter 28:01] (The Act) had the matter referred to a labour officer for conciliation.  Parties failed to settle.  The matter was then referredto an arbitrator for the arbitrator to consider the following issues:

To determine whether or not the claimant committed the acts of misconduct he was charged with and suspended from work.

Determine the appropriate remedy.

The Learned Arbitrator found that the appellant had committed the main charge.  In the result he penalised the appellant with dismissal.  However there is no indication that before the penalty of dismissal was decided upon, the appellant addressed in mitigation.  One of the issues raised in the grounds of appeal is that the appellant was not given an opportunity to address in mitigation.  The Act makes it peremptory that a person be given a chance to address in mitigation especially where dismissal is a likely penalty.  I therefore agree that the omission by the Learned Arbitrator in that regard is fatal.  Having found that the omission was fatal, I find it unnecessary to consider the other grounds of appeal.  The Learned Arbitrator must correct that omission.

For that reason the decision by the Arbitrator is set aside.

The matter is accordingly referred back to the Arbitrator for the Arbitrator to record mitigation from the appellant before considering the appropriate penalty.

The matter must be concluded within thirty (30) days of receiving this order.

Accordingly it is so ordered.

Maganga& Company, Appellant’s Legal Practitioners

Kantor &Immerman, Respondent’s Legal Practitioners