Shepherd Mapiki v Catering Industry Pension Fund

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/63/2022
HARARE, 12 OCTOBER 2021 &
CASE NO LC/H/03/21
11 MARCH 2022
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/63/2022

HARARE, 12 OCTOBER  2021 &			    CASE NO LC/H/03/21

11 MARCH 2022

In the matter between:-

SHEPHERD MAPIKI					APPELLANT

AND

CATERING INDUSTRY PENSION FUND		RESPONDENT

Before the Honourable Kudya J

For the Appellant		T.J. Mafongoya  (Legal Practitioner)

For the Respondent		G. Machingambi (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which found appellant guilty and penalised him with dismissal following allegations of wilful

disobedience to a lawful order and conduct inconsistent with the conditions of his employment.

Basic facts of the matter are that appellant was instructed to delete an email account for a principal officer who had left the organisation.  He sat on the instruction for 5 months. He was also said to have allocated a laptop to a junior officer which laptop contained information not meant for consumption by the junior employee.

The first issue taken by the appellant is that the Principal officer who handled his matter needed a board resolution to do so.  It is settled law the penalising power of any employee lies with the employer.  Employer is defined as “….. any person whatsoever who employs or provides work for another person and remunerates or expressly or tautly undertakes to remunerate him …...”  It is clear that the Principal Officer was mandated by his superior position to discipline appellant.  He needed no resolution to that effect.  The argument being misplaced should fail.

The second issue taken is that the investigation should have been after the suspension.  It need be observed that it is not in every case that an investigation follows a suspension Zim Alloys v Muchochonyi SC-7-06. In some cases both happen at same time or vice versa.  The submission also lacking in merit should fail.

The third query which appellant has is that there was paucity of evidence in his matter.  He maintains in particular that the essential elements were not proved and that the instruction flouted IT principles.  A reading of the record shows clearly that the account to be deleted was for a former employee.  Such employee had no reason to continue having access to trade secrets of an organisation he had left.  The court is thus not persuaded that there was any wrong finding in that.

The same applied to letting a junior employee access material not intended for his consumption.  It would be fool hardy to hide behind the banner of IT principles to breach the law.  The point being without merit should also fail.

Appellant also raised the issue of witnesses but the record made it clear that he could call them. Sadly, their value was considered minimal by the fact that they could only speak to a hypothetical set up which could not advance his case.   The same applies for the second charge case.  The ground also being without substance should fail.

As regards penalty it is settled that such is the employer’s discretion See Nyawasha v Circle SC-60-03 Cement.  In the case at hand nothing has been submitted to show that the dismissal penalty was outrageous. It should therefore stand.

IT ORDERDED THAT

Appeal being without merit in its entirety it be and is hereby dismissed.  Each party bears own costs.

Mafongoya and Matapure, Applicant’s Legal Practitioners

G. Machingambi Legal Practitioners, Respondent’s Legal Practitioners