Simbini Wills Mhlanga v Petrozim Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/171/2016
HARARE, 7 OCTOBER 2015 &
18 MARCH 2016
CASE NO LC/H/495/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/171/2016

HARARE, 7 OCTOBER 2015 &			                 CASE NO LC/H/495/2015

18 MARCH 2016

In the matter between

SIMBINI WILLS MHLANGA					         APPELLANT

Versus

PETROZIM LINE ZIMBABWE					       RESPONDENT

Before the Honourable L F Kudya J

For the Appellant      B Ndlovu  (Legal Practitioners)

For the Respondent   A K Maguchu (Legal Practitioners)

KUDYA J:

This is an appeal against the decision of the respondent employer’s appeals committee where it upheld the appellant employee’s guilty verdict and dismissal penalty.

Facts giving rise to the case were that the appellant who was in the respondent’s employ as a line supervisor was charged with contravening the respondent Code of Conduct. It was alleged that he had caused his personal motor vehicle to be repaired on an order to the charge of the respondent.

He was also said to have falsified the order by using an order meant to genuinely service the respondent motor vehicle, but he also used same order for his personal motor vehicle contrary to the respondent vehicle policy. He was brought before a disciplinary committee which found him guilty of the infractions complained about and discharged him from employment. He appealed internally without success. This brought him to the Labour Court on the appeal which is the subject matter of this judgment.

His appeal grounds were styled as such:

“(1)	The appeals committee erred to uphold the guilty verdict and dismissal. It failed to appreciate the circumstances of the case and failed to appreciate that it was not obliged to uphold the dismissal penalty.

(2)	The appeals committee erred to uphold the appellant’s dismissal on split charges since cause of action was the same there was no need to split the charges.

(3)	The appeals committee erred to appreciate that there were no aggravating features and it failed to appreciate the appellant’s mitigation.

(4)	The appeals committee erred at law to dismiss the appellant based on finding of intention to prejudice the respondent yet there was no proof beyond reasonable doubt to justify such alleged intention.

In the result the appellant prayed that the appeals committee decision be set aside and that the appellant be reinstated to his job without loss of salary and benefits.”

The respondent employer opposed the appeal on the following grounds:

“(1)	Allegation that appeals committee failed to appreciate circumstances of the case that it did not justify dismissal penalty is bold allegation and too generalised hence is not proper ground of appeal and needs to be struck off. On its merits if the ground is taken to be proper the appeals committee had no basis to interfere with the discretion of the disciplinary committee since such discretion had been exercised properly viz the guilty verdict and the dismissal penalty.

(2)	Split of charges was not raised at internal appeal so cannot be raised at Labour Court appeal. Such ground is improperly before the court and need be struck off. On the merits of the ground however there was no split because charge relating to use of company money for servicing personal vehicle is distinct from altering the order number to suit repairs of personal motor vehicle. There could be split between the first and third charge but that does not change fact that the appellant was rightly found guilty of two charges and dismissal was the appropriate penalty.

(3)	No evidence was led to show how it is said that appeals committee failed to appreciate the appellant’s mitigation. Failure to mention the mitigation in the decision does not mean that it was not considered. Besides, no prejudice ensued from appeals committee failure to mention same; hence the appeals committee considered and appreciated that there were mitigatory factors. Aggravating features were the appellant’s managerial position and his failure to show remorse so appeals committee decision resulted from a consideration of both aggravation and mitigation.

Standard of proof in disciplinary matters is proof on a balance of probabilities so no need to prove beyond reasonable doubt. Evidence adduced on the form of statements from Duly workers and invoices used in the transaction were sufficient to find the appellant guilty on a balance of probability. The respondent managed to satisfy burden of proof it had hence appeals committee was justified in finding the appellant guilty and meting out a dismissal penalty.”

In the result the respondent prayed that the appeal be dismissed with costs.

It is noteworthy from the response to the appeal and the heads of argument filed by the parties that the respondent had a number of preliminary issues which it was taking vis the appeal. On the hearing date of the appeal as is borne out by the court’s notes the respondent abandoned these points and agreed with the appellant that the matter be decided primarily on the main merits. In that regard the court deemed it unnecessary to discuss and rule on the preliminary points as parties agreed to drop them. This judgment therefore only addresses the main merits of the appeal grounds as if they were properly pleaded.

The test for such appeals is settled. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC).

The principal question here is whether it can be said that appeals committee exercised its discretion improperly to warrant the Labour Court appellate powers to be invoked to set aside the guilty verdict and the penalty. Each of the appeal grounds is addressed below:

Ground 1

Vis the circumstances of the case it is apparent from the oral submissions made by the parties in the instant appeal and also from a reading of the full record of the disciplinary proceedings that indeed the appellant acted as alleged vis alteration of the order and that his personal motor vehicle was repaired on the company order contrary to correct practice at the respondent’s. The fact that he eventually paid off the invoice before the respondent met it does not change the complexion of his conduct. The court is therefore not persuaded that there is anything in the evidence on the appellant’s guilt which the internal appeals committee can be said to have failed to deal with properly.

The upholding of the dismissal penalty was a natural fruit of the acceptance that the appellant had been properly found guilty. This court is not persuaded that there was another way to look at the facts other than the manner in which the appeals committee and the disciplinary committee dealt and analysed the same. There is thus no misdirection on account of this ground calling for this appellate court’s interference. The ground should therefore fail.

Ground 2

As regards the split of the charges the respondent demonstrated clearly that evidence of the alteration of the order could be adduced independently of that of causing potential/ patrimonial loss to the respondent. Besides, the law is clear that any technical argument should only be upheld if there is demonstrable prejudice emanating from it. See Nyahuma v Barclays Bank Zimbabwe 2000 (2) ZLR 445 (S). Even if the concession by the respondent vis charge 1 and 3 was to be taken to the logical conclusion there is no demonstrable prejudice emanating from the alleged split. To that extent the splitting argument is of no force or effect. The ground should therefore also fail.

Ground 3

As regards mitigation and penalty the law is clear that penalty is the discretion of the employer. See Nyawasha v Circle Cement SC-60-03. As stated clearly in the respondent’s response the position held by the appellant and how he acted would no doubt attract a penalty of the kind that was meted out. The failure to specifically mention that mitigation and aggravation were considered can therefore not be said to be fatal to the case. Besides, as stated at the onset an appellate body only alters a lower body’s decisions where there is demonstrable abuse of discretion by the lower body.

In the instant case the appeals committee did not show such misdirection from the disciplinary committee handling of the matter. The same applies to the instant court. There is nothing on record to show that the appeals committee erred to confirm the dismissal penalty.

There is therefore no basis for interference vis the mitigation and aggravation argument. The ground being without merit should fail.

Ground 4

The standard of proof in disciplinary matters is settled as being proof on a balance of probability. See ZESA v Dera 1998 (1) ZLR 500. Such standard of proof was satisfied in the instant case of the record of disciplinary proceedings is anything to go by.

There is therefore no cogent basis for this appellate court to hold otherwise. This ground also being unmerited should fail.

In the ultimate all appeal grounds are without merit and the appeal should be dismissed in its entirety.

IT IS ORDERED THAT

The appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

Kanoti & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners