Shingirai Paradza v African Sun Ltd t/a Amber Hotel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/12/16
HELD AT MUTARE 18 MAY 2016
CASE NO
JUDGMENT NO LC/MC/12/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MC/12/16

HELD AT MUTARE 18 MAY 2016				CASE NO LC/MC/18/15

& 23 JUNE 2016

In the matter between:

SHINGIRAI PARADZA					Appellant

And

AFRICAN SUN LTD t/a AMBER HOTEL		Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr E G Mwandipe (Trade Unionist)

For Respondent		Mr G Jakuosi (Legal Practitioner)

MURASI, J:

Appellant was in the employ of the respondent.  Following allegations of misconduct, appellant was brought before a Disciplinary Committee which found him guilty and recommended his dismissal.  An appeal to the National Appeals Committee did not yield the desired results and the appellant has approached this court for relief.

Appellant’s grounds of appeal can be summarised as follows:

That the National Appeal s Committee erred in upholding the penalty of dismissal without carrying out investigations over the wilful disobedience charge levelled against the appellant.

That the National Appeals Committee erred in upholding the penalty of dismissal over a charge which warranted a final warning in terms of the Code for utterance (of utterance of words showing hatred or ridicule.)

That the National Appeals Authority failed to understand that there was bad blood/victimisation on the appellant.

At the commencement of the proceedings Mr Mwandipe raised two issues which he

stated showed that the respondent was improperly before the court.  The first issue was that respondent’s legal practitioners had not filed an Assumption of Agency as required in terms of the rules.  The second issue was that there was no evidence that respondent had served the Notice of Response on the appellant and on that score, there was no response filed with the court.  Mr Mwandipe stated that he therefore was relying on Rule 30 (3) of the Labour Court Rules and that a default judgment should be granted in favour of the appellant.  He further stated that he abided by the heads of argument filed of record and prayed that the appeal be allowed and the respondent be reinstated without loss of salary and benefits.

Mr Jakuosi for the respondent stated that it was correct that no Assumption of Agency was filed with the court.  He stated that he was making a formal application to the court to condone the non-filing of the Assumption of Agency.  He further lamented the fact that appellant’s representative knew of this fact as early as February 2016 but had not raised it and this was to be regarded as an “ambush” on the other party.  As far as Mr Mwandipe’s reliance on Rule 30 (3) of the Labour Court Rules was concerned, it was submitted that the Rule in question applied to a situation where a litigant had failed to attend court.

The court informed Mr Jakuosi to proceed to address the court on the merits as reasons would follow in the judgment.

On the merits, Mr Jakuosi stated that the National Appeals Committee could not be faulted for not having dealt with issues not brought before it and as such, the grounds should be struck off.  As far as the penalty was concerned, it was argued that this was the discretion of the employer.  Such penalty would only be interfered with where there was gross unreasonableness on the part of the employer in exercising the discretion.  It was further submitted that no evidence of a gross misdirection had been placed before the court to justify an interference with the penalty.  Mr Jakuosi further submitted that the record shows that appellant had pleaded guilty to the charges and therefore the issue of whether he was guilty or not did not arise.  He called for the dismissal of the appeal in its entirety.

In addressing the preliminary points raised by Mr Mwandipe, the court gives the following findings.  It is common cause that the respondent’s counsel did not file any Assumption of Agency as required in terms of Rule 18.  It is also clear that the wording in Rule 18 (1) uses the word “shall” which makes the filing of the Assumption of Agency peremptory.  Respondent’s legal practitioners applied for condonation and stated that this must have been due to oversight.  It was further submitted that there was no evidence from appellant that he had been prejudiced as a result.  Whilst no prejudice may have been suffered by the appellant, the cardinal issue is whether there was compliance with the rules of the court.  I am of the view that this court has witnessed rising incidents of blatant non-compliance with the rules.  Such conduct cannot be condoned.  I also take note of the fact that appellant’s representative became aware of respondent’s counsel’s participation in the proceedings but decided to keep quiet until the eleventh hour.  If appellant’s representative had raised this earlier it would have been resolved.  I decided to condone the non-filing of the Assumption of Agency in order to deal with the matter on the merits so as to have finality in litigation.  The second issue that appellant’s representative raised was that there was no evidence that respondent’s had served the Notice of response as required by the rules.  Mr Mwandipe made the submission that respondent could have served the Notice of Response at its Harare office even though the address given was a Mutare address.  As far as Mr Mwandipe’s reliance on the rule referred to has no bearing on the preliminary points raised and therefore cannot be granted.

On the merits, the record shows that appellant pleaded guilty to both charges.  In the hearing, he gave a lengthy statement as to what had happened.  The Disciplinary Committee imposed two penalties for the two charges, one of a Final Written Warning and the second one of dismissal.  In his appeal to the National Appeals Committee, appellant raised the following issues:

That the charge does not warrant dismissal

That though he pleaded guilty, he had also apologised and that he was being sacrificed for the wrong done by a senior

That he felt he was being hated at the workplace.

The National Appeals Committee upheld the decision of the Disciplinary Committee.

It also gave reasons for arriving at such a decision.  It stated that even if one of the charges invited a penalty of a Final Written Warning, the other provided for a penalty of dismissal.  Was the dismissal justified in the circumstances?  The following evidence was given by A Takaza:

“Shingirai personalised the issue and took the opportunity to attack me, my character personally and position.  It becomes difficult to work with such a person and it will set a wrong precedent to other employees who will take on the behaviour.   Shingirai does this habitually as he once chased the late Chef Mpofu with a knife and also locked the porter Tatenda Makwazini in the cold room.”

The question to be asked is whether a reasonable employer would have reasonably dismissed the appellant.  If a reasonable employer would not have reasonably dismissed the appellant then the dismissal was unfair.  In casu the conduct of the appellant showed him to have very little respect for his superiors.  The conduct showed a person who wanted to be a law unto himself.  It is my view then that a reasonable employer would have reasonably dismissed the appellant.  His misconduct went to the root of the employment contract.

In the circumstances, has appellant shown that there was gross misdirection on the part of the National Appeals Committee?  I think not.  GUBBAY CJ (as he then was) had this to say in Barros & Another v Chimpondah 1999 (1) ZLR 58 (S):

“These grounds are firmly entrenched.  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 error has been made in exercising the discretion.”

It is trite that the employer has the discretion to impose a penalty commensurate with the offence.  It is only when there is evidence that the discretion was improperly exercised that an appellate court will interfer.  In casu appellant has not demonstrated that this is the position	.

In the result, the court is of the firm view that the appeal is devoid of merit and ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

Each party to bear its own costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners