Samuel Muzembi v Toyota Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/25/16
HELD AT HARARE 6TH OCTOBER 2015
CASE NO LC/H/977/14
& 22ND JANUARY 2016
JUDGMENT NO LC/H/25/16
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/25/16

HELD AT HARARE 6TH OCTOBER 2015		CASE NO LC/H/977/14

& 22ND JANUARY 2016

In the matter between:

SAMUEL MUZEMBI					Appellant

And

TOYOTA ZIMBABWE (PVT) LTD		Respondent

Before The Honourable Mhuri, Judge

For Appellant		Ms S Nyagura (Legal Practitioner)

For Respondent		Mr B T Mudhara (Legal Practitioner)

MHURI, J:

Appellant was charged with acts of misconduct in terms of Section 5.3 of respondent’s Code of Conduct.  These were:-

4.3 (XV)

Disrespectful conduct

it being alleged that on or about the 20 August 2014 he wrote and distributed electronic mail addressed to Shinhara – San, copied to Pravian Kara and blind copied to selected respondent’s employees, in which he made disrespectful reference to Miss Y Gatsi the Human Resources Manager.

4.3 (XVI)

2.	Use of abusive or insulting language-

it being alleged that by the same electronic mail, he abused and insulted Y Gatsi by calling her “a monkey, wombless that she forged her qualifications.”

4.3 (XVII)

3.	Making threats

it being alleged that by the same e-mail threatened to mobilize other employees of respondent to go on an illegal industrial action.

In terms of the code, all these acts of misconducts are stand alone acts and call for a dismissal penalty on first breach.  Appellant was found guilty and a penalty of dismissal was imposed.

Appellant in turn filed an appeal against both verdict and penalty to the Appeals Hearing Officer, who dismissed the appeal in its entirety.

This appeal is against the Appeals Hearing Officer’s determination.

Appellant takes issue with the three charges, arguing that there was improper splitting of charges and that the Appeals Hearing Officer misdirected himself by failing to find that there was splitting of charges.

In deciding this ground of appeal, the Appeals Hearing Officer had this to say,

“… I have examined the charges to determine whether the committee improperly split the charges to your prejudice.

The first charge relates to disrespectful conduct

The second to use of abusive and insulting language while the third relates to inciting other employees to go on an illegal industrial action.

While the first and second charges could be combined into one, the Code separates these.

I note that the particulars of each of the charges are different, each requiring proof of different elements.

Another way of looking at the matter is to consider whether if the first and second charges were combined, the outcome might have been different.

Each of the charges is classified as a serious offence and carries the maximum penalty of dismissal upon first breach.

Exhibit 1 is the source document from which the charges were derived.  The relevant portion (first paragraph)that led to the first charge reads as follows:-

“It is a major concern to all staff that a big organisation like Toyota Zimbabwe can operate without a professional Human Resources Manager.

The one purported to be Human Resources Manager is unprofessional and thrives on victimization of staff day in day out.

We wonder if she really went to a proper school or college.

May be she forged her qualifications because even a student who copies others would remain with some traces of subject knowledge but its different with this one, no single trace is in her.”

The relevant portion from which the second charge was derived is found in the second paragraph of Exhibit 1. It reads:-

“… It seems our Human Resources Manager is getting protection from TTAF at the expense of all other staff members.  She victimizes staff, she hates fellow female staff to the extent of suppressing their salaries and benefits, and she overrides all managers.  She is currently running the National Services Department by making decisions for the position holder and suppressing promotions of deserving staff members who do no tore (sic) her line.  All discrepancies affecting staff are caused by this Human Resources Manager and this is the major cause of poor performance by Toyota Zimbabwe in Service and Parts.  She is a demotivator, which is contrary to any Human Resources position.

She pokes her nose into matters that do not concern her,  leaving her proper areas of duty. When a staff member encounters sickness in the family or bereavement and requires assistance of any nature from the company, she reacts negatively as if she is not a human being.

She has become so powerful in the negative direction. Such a manager is not worth working with humans.

She is ruthless, heartless and stingy.  She has no feelings for others, may be its because she is wombless and does not have a family, hence no empathy.

It also defies logic for a highly powered Toyota head office like TTAF to fail to notice  a monkey working amongst people.”

The third charge was derived from the third paragraph of Exhibit 1, and it reads:-

“… we also deserve a normal and professional Human Resources Manager.  The current one may be good being a secretary to a very powerful Human Resources Manager with integrity who cannot be overridden easily.

We hope you shall take us seriously or may be you want us to write a petition which every staff would sign accompanied  by a sit in with every staff holding placards denouncing the Human Resources Manager.

As professional as we are, we would not want to go to that extreme as it would attract media attention.

(Underlining my own)

It is clear from Exhibit 1 that all the three charges arose from this document.  It is also clear that the intention was to have the Human Resources Manager removed  or transferred to another department.  The Disciplinary Committee, in this case took paragraph by paragraph and out of these paragraphs couched a charge.  This was wrong in my view, even if these charges are stand alones in terms of the Code.

In the case of S v ZACHARIA 2002 (1) ZLR 48 H at 50 G – H the tests to be applied were stated as follows:-

“There are basically two tests as to whether there has been an improper splitting of charges or a duplication of convictions.

There is the single intent or continuous transaction test and the same evidence or dominant intent test.

The dominant intent test means that where the accused performs a series of acts or more than one act which standing alone would constitute an offence but which are a necessary adjunct or necessarily incidental to the commission of the offence which he intends to commit, then the accused should be charged with one offence.”

CHINHENGO J as he then was went further to explain that the test relates to the intention of the accused person as he performs the several acts which are logically and intrinsically connected to the one offence which he then commits.

In casu, I am persuaded that there was splitting of charges.  I however do not find that this splitting of charges prejudiced appellant.  Firstly, a reading of the Disciplinary Committee determination shows that there was only a single verdict returned for all the 3 acts of misconduct.  Secondly, as correctly held by the Appeals Hearing Officer, each of the acts as stand alones attracted a dismissal penalty.  So even if appellant was charged with one act of misconduct, either first or the second charge the penalty of dismissal would have been imposed as it is prescribed by the code for a first breach.  It is very clear that the contents of exhibit 1 were disrespectful, insultive of the Human Resources Manager.

This ground of appeal cannot stand in the circumstance

As for the rest of the grounds of appeal, vis 2, 3, 4, 5 and 6, I find them to be devoid of any merit.

Before the Disciplinary Committee appellant was asked if he had any witnesses and his response was, “it depended on the proceedings.”  This clearly shows that he did not have.  If he was derisous to have an expert called as his witness he could have said so and that could have been recorded.  The Appeals Hearing Officer cannot be faulted for holding that the bringing of an IT expert was an afterthought by appellant.

Again before the Disciplinary Committee evidence was led from a witness F Sachiti from respondent’s IT department who explained in detail the operations at respondent’s workplace and how there was nexus between the e-mail and appellant’s laptop.  Further evidence from a CCTV showing which people entered appellant’s office, for how long and appellant working on his laptop at his work station and for what period.  Mr F Sachiti’s evidence which could not be strongly challenged showed that the document was authored and modified from appellant’s laptop, the time it took 77 minutes, the days within which it was originated 18 – 20 August.  It is not in dispute that appellant was at work during these days.  The record shows that Mr Sachiti even went further to show through demonstrations how the document could not have been originated from none other than appellant’s laptop.

I do not find an misdirection on the part of the Appeals Hearing Officer as his analysis of appellant’s grounds of appeal to him are supported by the evidence that was led before the Disciplinary Committee.

As regards mitigation, the record shows that the Disciplinary Committee considered the factors:-

appellant’s length of service,

no previous record

had lost his wife

a good performer

had risen through the ranks

long service award

Against this, the seriousness of the offence was

considered and was found to outweigh the mitigatory factors.  The Appeals Hearing Officer was therefore correct in holding that the Disciplinary Committee considered mitigation.

It is a trite legal principle that imposition of a penalty is the prerogative of the employer.  Where the employer takes a serious view of the act of misconduct and considers it to go to the root of one’s employment contract, and resultantly imposes a dismissal penalty, an appellate court cannot interfere with such  exercise of discretion unless it is shown that it was injudiciously exercised.

See:	TREGERS PLASTICS (PVT) LTD

v

WOODRECK SIBANDA & PAUL MANGONDO SC 22/2012

In casu, the Code prescribes a dismissal penalty on first breach.  The Disciplinary Committee considered both mitigatory and aggravatory factors and came to the decision that a dismissal was warranted.  That being an exercise of discretion, and appellant not having shown that the discretion was not judiciously exercised, the Appeals Hearing Officer could not interfere with the penalty.  He was correct in declining to interfere .

The appeal, in my view is totally without merit.

In the result it, is hereby dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mundia & Mudhara, respondent’s legal practitioners