Sabilika Maxwell v Zimbabwe Revenue Authority & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/264/2020
HARARE, 14 JULY, 2020
CASE NO. LC/H/LRA/216/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/264/2020

HARARE, 14 JULY, 2020			     CASE NO. LC/H/LRA/216/19

AND 27 NOVEMBER, 2020

In the matter between:

SABILIKA MAXWELL							APPLICANT

Versus

ZIMBABWE REVENUE AUTHORITY					1ST RESPONDENT

TAFADZWA NJITIMANA							2ND RESPONDENT

Before The Honourable Hove J;

For Applicant:	Manzini T. Ms (Ministry of Labour)

For 1st Respondent:	Tazviwana S. Ms (Legal Officer)

For 2nd Respondent:		John Chirenda Mr (Trade Unionist)

HOVE J:

This is an application for confirmation of a draft ruling by a Labour officer, the applicant.

The 2nd respondent, hereinafter referred to as the employee was employed by the Zimbabwe Revenue Authority, the 1st respondent (ZIMRA).

The background facts

These are common cause. I will just include them here for completeness.

The employee was employed by Zimra as a revenue official based at Robert Gabriel Mugabe International Airport. She was charged with an act of misconduct. It was alleged that she had contravened a category D9 offence, “carrying out any act inconsistent with the express or implied conditions of the contract of employment”. The offence is in the most serious offense category of the 1st respondent’s Code of Conduct.

The allegations were specifically that the employee;

1)	failed to conduct a physical examination on a client’s luggage

2)	failed to query the declaration made by the client which was improperly completed.

3)	failed to follow the procedure and guidelines on how commercial items are cleared and valued.

4)	failed to count in full the goods in the bags as was revealed by CCTV footage; and

5	allowed the client to take her two bags outside the customs yard before completion of the clearance thereby aiding smuggling of goods by the client.

Zimra outlined that the employee failed to safeguard against revenue leakages and also failed to ensure that correct duty was paid to the fiscus when she failed to physically examine the goods. A client was referred to the employee for her to carry out a physical examination The client had 5 big bags and small ones. When the supervisor followed up the clearance of this client, the client now had only 3 big bags and 2 small ones. The supervisor asked the employee where the other 2 big bags had gone and the employee said there were only these 3 big bags and 2 small ones. The supervisor had to check with Emirates airlines the number of bags the client had and it was confirmed that she had 5 big bags and 2 small ones. The supervisor then called the station manager to assist and the CCTV showed that 2 big bags had been handed over to national handling officer who carried them out of the customs area. Upon being asked on how many bags she had counted, she then said 5 big and 2 small contradicting her earlier statement.

These facts were not in dispute the Labour officer, in his draft ruling was of the view that the crime was not disputed and Zimra had a valid case against the employee.

The Labour officer however was of the view that the offence of dismissal imposed against the employee was not justified under the circumstances of this case. This was so because the employee had alleged that on the day in question, she was not in her proper mind as she had a very sick child at home and her child minder kept phoning her to tell her how the child was deteriorating.

The Labour officer then set aside the penalty imposed by Zimra and substituted it with a final written warning and ordered reinstatement.

Zimra argued that the Labour officer had erred in substituting the dismissal penalty with a final written warning. It argued that the employee’s conduct was highly questionable, she initially lied that there were only 3 big bags. This was after she had allowed 2 big bags to be taken out of the customs area before she concluded the customs procedures. The supervisor had to actually verify the number of bags with the airline. The employee was very dishonest and this trait could not have been because she had a sick child. A sick child cannot induce one to lie to their supervisor. She assesed duty at US$812,50 and a second physical examination revealed duty payable of US$1 954,23.

The Labour officer failed to properly assess the issues before him and placed undue weight on the fact that the employee had a sick child.

Whether the Court and the Labour officer should interfere with the imposed penalty of dismissal

There are no issues that arise in relation to the facts which are common cause. The only issue is whether or not the Labour officer was right in interfering with the penalty of dismissal and whether this Court can rightly interfere or uphold such interference with the employer’s discretion by the Labour officer.

The Labour officer, after forming the view that;

“The charge was proved beyond reasonable doubt by the complainant with video recording and a witness. This charge goes to the root of the contract of employment and the respondent duly admitted to the charge’’.

took into consideration as mitigating the personal circumstances of the employee. He relied on the case of Mvere v Tanganda Tea Company Ltd SC 130/04 which stated that the question of whether the dismissal of an employee is justified is a question of fact dependant upon the extent of the misconduct committed and determined by reference to all the circumstances of the case. He took into account the fact that the employee had a good working relationship with her co-workers and supervisor, that she had a clean record, that her performance was affected by her sick child, that she is a breadwinner and that no loss was suffered by the complainant. The Labour officer came to the conclusion that these mitigatory factors outweighed the aggravatory factors and he was of the view that justified a lesser penalty.

The law

The case of Barros Chimpondah 1999 (1) ZLR 58. The court held as follows;

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it could have taken a different course. It must appear that some errors has been made in exercising the discretion if the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it. If it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution”.

It is therefore clear that the question of what sentence to impose is in the employer’s discretion. An appellate tribunal or court cannot itself take mitigation and upset the penalty imposed by the employer for by so doing, it would be substituting its own discretion for that of the employer. Interference can only be justified if the employer acted upon a wrong principle, if it allowed extraneous or irrelevant matters to guide or affect it or if it mistakes the facts or does not take into account some relevant considerations.

In Mashonaland Turf Club v Mutangadura SC 5/12 the Supreme court said that an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment. This position was further confirmed as the correct and now settled law in Tregers Plastics (Pvt) Woodreck v Sibanda and anor SC 22/12 where the court stated 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. 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.

once, therefore, an employer takes a serious view of the misconduct as was the case in casu, the question of a penalty less severe than dismissal cannot be entertained. See in this regard the case of Toyota Zimbabwe v Posi SC 55/07.

That therefore the draft ruling is a misdirection in so far as it seeks to substitute the employers discretion with that of the applicant becomes evident in the light of the several Supreme court judgments referred to above.

The draft ruling can therefore not be confirmed in its current state. The ruling by the applicant is set aside and substituted by the following order.

Order

1) 	The application for confirmation is dismissed.

2)	The decision by ZIMRA to dismiss the employee is upheld.

3)	Each party will bear its own costs.