Ranganai Nhungurira v Zimbabwe Revenue Authority

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/691/13
HARARE 24TH SEPTEMBER 2013
CASE NO LC/H/413/13
AND 6TH DECEMBER 2013
JUDGMENT NO LC/H/691/13
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IN THE LABOUR COURT OF ZIMBABWE  	  JUDGMENT NO LC/H/691/13

HARARE 24TH SEPTEMBER 2013	       CASE NO LC/H/413/13

AND 6TH DECEMBER 2013

In the matter between:-

RANGANAI  NHUNGURIRA			Appellant

And

ZIMBABWE REVENUE AUTHORITY		Respondent

Before The Honourable G Mhuri, Judge

For Appellant		Mr Chinwamurombe (Legal Practitioner)

For Respondent		Mr N Mbiriri (Legal Officer)

MHURI, J:

On the 16th May 2013, the Arbitrator issued an award dismissing Appellant from Respondent’s employment.  It is this dismissal penalty Appellant is taking issue with before this Court.

His grounds of appeal are that:-

The learned Arbitrator erred in failing to consider the mitigatory factors proffered by the Appellant, and as a result;

The learned Arbitrator grossly misdirected herself in arriving at an outrageous decision of dismissal which a different arbitrator or tribunal applying its mind will not come up with such a decision.

Her misdirection was so gross that it amounts to a misdirection on a point of law.

It was Appellant’s contention that the Arbitrator did not consider:-

the length of suspension without pay imposed on him.

that Appellant was so remorseful, he provided a genuine report on what transpired.

Appellant was a trainee therefore his level of diligence differed from that of a qualified Revenue Practitioner.

The background of this matter which is generally

common cause is that Appellant was in Respondent’s employ as a Revenue Trainee.  He was based at Beitbridge Border Post.  During the night of the 14th April 2012 Appellant was on duty at the she zone where his duty was to clear buses.  Instead, Appellant left the shed zone proceeded to Malume zone where he cleared two motor vehicles ANW 1519 and ABW 6704.  When these two motor vehicles were intercepted by a Zimra Official it was discovered that they carried some goods which had not been declared and cleared.  Appellant was then charged with colluding with clients to undervalue or wrongly classify goods or to cause revenue loss and carrying out any act which is inconsistent with the express or implied conditions of the contract of employment.

It is an established common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitled the employer to dismiss him if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated.

Toyota Zimbabwe v Richard Posi SC 55/07

Justice Ziyambi reiterated the point by stating 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.

Having so stated, it was again stated that

it is also an established principle that an appellate Court will not interfere with the employer’s exercise of discretion unless it is shown that in the exercise of such discretion there was a misdirection.

Tregers Plastics (Pvt) Ltd v Woodreck Sibanda and Paul Magondo SC 22/2012

see also

Innscor  Africa (Pvt) Ltd v Letron Chimoto

SC 6/2012

Mashonaland Turf Club v George Mutangadura

SC 5/2012

In casu, it was not disputed that the act of misconduct Appellant was found guilty of goes to the root of the employer employee relationship.  Neither was it disputed that the penalty for such a transgression is dismissal.  The only issue is that the Arbitrator did not fully consider the mitigatory factors, for if she had, she would have imposed a lesser penalty.

In coming up with a dismissal penalty, can it be said that there was a misdirection on the part of the Arbitrator?  Can it be said that there was unreasonableness on the part of the Arbitrator to warrant interference by this Court?

The answer to both questions is in the negative in my view.

It is common cause that Respondent had tried on various occasions to institute disciplinary proceedings against Appellant but for the reason that the worker representatives boycotted the hearings this was not possible.  In view of this there was a delay hence the matter was eventually referred to a Labour Officer in terms of Section 101 (6) of the Labour Act [Chapter 28:01]

How then does an unfair labour practice arise under these circumstances.  I find that the Arbitrator was correct in her finding that Respondent did not commit an unfair labour practice.  Further, why should Appellant benefit from this delay which was caused not by the Respondent but by those who were to champion and protect the Appellant’s rights.

The minutes of the arbitration proceedings show that the Arbitrator called upon Appellant to mitigate before she imposed a penalty.

She considered the 1st factor:-

that similar matters should be treated in a similar manner and found that the case she had been referred to was different from Appellant’s, in that Appellant had actually deserted his work station for another station where he committed the act of misconduct.  The motor vehicles he cleared were found to have uncleared goods.

She also considered the 2nd factor:-

that of additional training and came to the conclusion that Appellant was already under training and as a trainee was supposed to act diligently.  This conclusion was correct considering that Appellant was aware of the procedures pertaining to the clearing of motor vehicles.  It did not need further training for one not to leave his work station, proceed to another station manned by other officers and there, on the pretext that there was pressure, clears only 2 trucks which trucks were later found to have uncleared goods.

She also considered the 3rd factor:-

that Appellant was a married man with 2 minor children and was looking after his siblings.  The Arbitrator found that this fact was out weighed by what Appellant did vis acting in an inconsistent manner contrary to laid down procedures. This factor should have constantly been in Appellant’s mind reminding him not to get involved in acts which would jeopardise his employment.  Appellant was therefore the author of his dilemma.

Appellant was supposed to attend to a bus but left his station for another station on the pretext that there was pressure there at.  He only cleared 2 motor vehicles and left.  These motor vehicles were found to have uncleared goods.

This factor was far out weighed by the aggravating factor and I find no misdirection nor unreasonableness in the Arbitrator’s analysis and findings on the mitigating factors.  Her judicious exercise of discretion is beyond reproach.

To that end, there is not basis for me to interfere with the Arbitrator’s exercise of discretion in imposing the penalty.

Accordingly the appeal must be dismissed as it is without merit.

It is therefore ordered that the appeal be and is hereby dismissed.

Danziger & Partners, Appellant’s Legal Practitioner

Legal Officer, Respondent’s Representative