Tel-One (Pvt) LTD V A. Mutowo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/203/2020
HARARE, 13 AUGUST, 2020
CASE NO. LC/H/232/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/203/2020

HARARE, 13 AUGUST, 2020			     CASE NO. LC/H/232/19

AND 25 SEPTEMBER, 2020

In the matter between:

TEL-ONE (PVT) LTD							APPELLANT

Versus

A. MUTOWO								RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:		J. Dondo (Legal Practitioner)

For Respondent:		In Person

KACHAMBWA J:

This is an appeal from the decision of the National Hearing Committee which committee overturned the conviction and penalty of the Disciplinary Committee.

The appellant charged the respondent of an act of misconduct in terms of the company code of conduct. The respondent was charged of committing category 4.1 offence in that he had repeated a category 3.1 offence when he was still serving a penalty for the category 3.1 offence. Category 4.1 offence is Gross Misconduct. The charge arose from failure to communicate to a client on the complaints raised by the client and failure to attend to the problem timeously. The respondent was found guilty and was discharged from employment. The discharge became inevitable as the respondent had experienced an escalation of charges from category 2.7 to 3.1 to 4.1 within the validity of each charge’s penalty.

The facts of the present charge are that a client, Engineer Chakwanda, applied for network services from the Glen View Exchange Sales Office. The client was connected but the service was not working properly. On several occasions, he went to the service provider to be assisted but to no avail. The respondent was the person in charge and he would not be available. Messages were left for him to contact the client but he did not do so. On one occasion he was even contacted by his colleague and promised to contact the client and yet he did not do so. The client escalated his complaint to the managing director. That is when the problem was solved but that also led to the charge and conviction.

Two witnesses were called – the client and a Mrs Chikondowa who had infact dealt with the client when he came to the office. She is the one who had telephoned the respondent to inform him of the client’s case. Both witnesses were apparently found to be credible hence the conviction. The respondent appealed to the National Hearing Committee on the following grounds;-

“1.	When the client Mr Chakwanda made several visits to Glen View exchange in December 2018 according to his submission I was not at work as I was on suspension and there was someone acting on my capacity as BPS who should have helped the client. When the client came back in May 2019 disputing the 6 Gigabits that had been reimbursed to him based on faulty history I was not advised. The CRA should have written a note or an e-mail stating the client’s query so that I could use it to resolve the client’s query.

2.	I met the client in question for the first time during the hearing and on his submission he indicated that when he requested for my mobile number from the people he had interacted with during my absence and he was not given otherwise he would have called me and have his query resolved. I also picked. I am now being accused of not resolving a client query that I was not aware of.

3.	It is also a known fact that there was an attempt by thieves to pull from the ducts the 400 pair cable that connects Glen View 7 where this client stays in October 2018. Even though the theft was foiled the cable was damaged prompting the need for replacement. I advised my manager through an e-mail and made several follow ups but I did not get any assistance. This particular client had his service restored from one of the working pairs within the cable which had become free due to a recovery. On another incident there was a theft of 2 x 2000 pair cable in Glen View. My manager was also advised and while seized with the restoration of 10 cabinets caring more than 600 clients my supervisor wanted me to remember and connect one client who had paid for installation just before the cable was stolen. More so this new client could only be connected after restorations of one of the stolen 2 000 pair cable.

4.	On yet another incident the backbone fibre was stolen in Mufakose, I also advised my supervisor but on all these incidents he never came on site and probably assist in proferring a solution but ABM from infrastructure was there with his team.

5.	I also felt my dismissal was premeditated and this client’s issue was only used as an excuse. I also note with concern that there was a long discussion between my supervisor and the management representatives before the hearing.

From these grounds the appeal was upheld. The record does not show whether there was a response to the appeal. The appeal appears to have been decided on the record without any party appearing.

The appeal before this court is on three grounds. These are that-

“1.	The National Hearing Committee grossly erred and seriously misdirected itself at law in setting aside the determination by the Employer’s Disciplinary Committee of finding Respondent guilty of the offence charged in light of overwhelming evidence on record justifying the guilty verdict arrived at by the Employer’s Disciplinary Committee.

2.       The National Hearing Committee grossly erred and seriously misdirected itself at law in upholding the so called grounds of Appeal raised by Respondent when the record does not reveal any proper grounds of Appeal filed.

3. 	The National Hearing Committee erred and grossly misdirected itself by making the Order for reinstatement of the Respondent to his former position without loss of benefit in light of the offence that Respondent had been found guilty of and the aggravating factors of the case properly considered by the Disciplinary Committee.

The National Hearing Committee Grossly Erred by Setting Aside the

Conviction

The appellant’s argument was that there was uncontroverted evidence to warrant conviction and a dismissal penalty.  This is moreso in view of the standard of proof which is a balance of probabilities.  Unfortunately, the parties concentrated on the penalty rather than the conviction.  Nevertheless, both parties were alert to the position that an appellate tribunal/ court should be slow in interfering with the findings of facts by the trial court.  This is the important point.  The National Hearing Committee was an appellate tribunal and as such it should be slow in interfering with the decision of the Hearing Committee.  Proof in these cases is on a balance of probabilities.  It has been repeated over and over now that an appellate court must be slow in overturning findings of facts by a lower court.  The point is also made that two courts may come up with different judgments on the same facts but without either court being wrong.  The judgment is not a scientific decision where the formula will give the same result everytime.  The courts have said that the decision should only be set aside where there has been a serious misdirection on the facts.  It is not a question of the appellate court being of the view that it would have come up with a different decision if it was the trial court.  In the case of Hama vs NRZ 1996 (1) ZLR 664 (SC) at 670 Korsah JA (as he then was) elaborated on the point as follows –

“..an appeal court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.  Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Barough of Tameside (1976) 3 ALLER 665 (CA) at 671E-14, CCSV v Minister for the Civil Service supra at 951 A-B; PF Zapu v Minister of Justice (2) 1985 (1) ZLR 305 (SC) at 326 E-G”

The case of Toyota  South Africa Motors (Pvt) Ltd v Douglas Radebe & Others DA 2-99 is also very instructive. It says that;

“An appellate Court should not seek anxiously to discover reasons adverse to the conclusion of the trial Judge. No judgment can be prefect and all embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered”.

This is the essence of all judgments. They are not a science formular.

The decision of the Disciplinary Committee was based on the evidence of Mrs Chikondowa and Engineer Chakwanda. The evidence was not discredited at all. Although the appellant was away on leave on some of the dates he was present on duty on the other relevant dates in May. None of the relevant evidence was discussed by the National Hearing Committee as such. Rather the National Hearing Committee acted as if it was considering the matter afresh. There are no reasons given for dismissing the clear evidence which said that the respondent had been contacted and he promised to attend to the client. Although there is no need to specifically mention that there was a serious misdirection of the facts, that could be german in the judgment but such is not in this case. Infact there is no indication that the Committee was alert to the point. Therefore no basis was established for reversing the Disciplinary Committee’s decision. The appeal on this point should succeed accordingly.

NO PROPER GROUNDS OF APPEAL BEFORE THE NATIONAL HEARING COMMITTEE

The appeal before the National Hearing Committee was on the record – no evidence led. The record does not show that the parties were called or given a chance to address on the appeal. Infact this presents a question that seems not to have been effectively decided, that is, whether the employer should actually respond. Further it has also been questioned as to whether it is proper for an employer to appeal the decision of an internal hearing authority. Is that not an appeal against itself?.

Be that as it may be, the National Hearing Committee did not make any decision on the adequacy or otherwise of the grounds of appeal. That being so how does the appellant get to appeal on that aspect?. There is no such decision at all? There was no such question before it. The appeal ground is misplaced. It should have been raised before the Committee first so that there would be a ruling to appeal against. As things stand this ground of appeal appears to be incompetent. Normally it is a ground for striking off an appeal.

On the other hand the responded conceded that the grounds of appeal were defective. It was then said that the court could set aside the findings of the National Hearing Committee and refer the matter back to the same committee to hear the matter with proper grounds of appeal!. The appellant objected to this suggestion arguing that the respondent was heard and there was enough evidence to convict and dismiss. This position actually betrays the ground of appeal The ground of appeal was not argued in appellant’s heads of argument. It was not mentioned anywhere as to what its effect was. The appellant did not say what it wanted done because of these defective grounds of appeal which grounds are not before this court but were before the lower “court” and yet not an issue before that court! Was the challenge not waived? Were the grounds not allowed to stand?. The appellant may not have thought this ground through. The ground of appeal is incompetent for there is no decision on it to appeal. It was not an issue before the previous court. It must be dismissed.

The National Hearing Committee erred and Grossly misdirected itself by Reversing the Penalty of Dismissal

The appellant’s argument was that the misconduct was a dismissable offence. Further the penalty is discretionary and is not lightly interfered with in an appeal. The respondent’s argument on penalty is not complete. Respondent did not say what penalty would be appropriate in the event of such becoming an issue. It was said though, that, “for an employer to dismiss an employee for misconduct knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence”.

It was also said that the respondent’s workload was heavy and the delays experienced were not the respondent’s fault.

On the other hand, the appellant’s argument was that the penalty being discretionary there were no grounds for interfering with the penalty as there was no misdirection at all.

It is the song in the courts now to say that discretion on penalty is not lightly interred with. Mavangira JA, Alpha in Madzima v Marange Resources (Private) Limited SC 12/18 says, at pages 9-10 of the cyclostyled judgment-

“It is settled in our law that an appellate court must be slow in interfering with the discretion exercised by a lower court. It must appear that some error 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 considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the material for doing so. See Barros & Another v Chimponda 1999 (1) ZLR 58 (S) at 62F-63A”.

On the same point of discretion Malaba DCJ (as he then was) in Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012 says this at page 2 of the cyclostyled judgment-

“ A principle has now been established to the effect (that) an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court”.

Coming to the present case it is on record that the respondent has had his charges of misconduct escalated upwards from 2,7 to 3.1 to 4.1 because of repeat misconduct during the validity of a previous penalty for a similar misconduct. The evidence on the present misconduct shows an employee whose behavior not only puts the employer into disrepute but inconveniences the public a lot. The respondent comes out as an unrepentant character. A character that is an inconvenience to everyone. That being so, a penalty of dismissal is appropriate. It is not out of place.

Having made the foregoing observations, it remains to say that the National Hearing Committee misdirected itself in interfering with the decision of the Disciplinary Committee. There were no grounds for doing so. Accordingly, the decision of the National Hearing Committee should be interfered with.

It is thus ordered as follows,

1.	The appeal be and is hereby upheld.

2.	The decision of the National Hearing Committee be and is hereby set aside.

3.	The decision of the Disciplinary Committee be and is hereby reinstated. The respondent stands convicted and dismissed.

4.	The respondents pays the cost of suit.

Dondo & Partners 	-	Appellant’s Legal Practitioners