Telone (Pvt) LTD V LAST Dzivakwi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/13/2014
HARARE, 21 NOVEMBER 2013
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/13/2014

HARARE, 21 NOVEMBER 2013	           	               CASE NO. LC/H/258/12

AND 14 FEBRUARY 2014

In the matter between:-

TELONE (PVT) LTD 					   Appellant

And

LAST DZIVAKWI					   	   Respondent

Before Honourable Chidziva J

For Appellant		Mr. J. Dondo (Legal Practitioner)

For Respondent		Mr. B. Peresuh (Legal Practitioner)

CHIDZIVA J.;

The Appellant is appealing against the decision of the National Hearing Committee which was handed down on the 22nd of March 2012.  The Appellant was found guilty of contravening

Category 3 (2) of the Code that is

“Absence from duty for 3 to 4 consecutive days without permission on reasonable excuse.”

Category 4 (14) of the Code that is

“Falsification of records or any document(s) whether of a personal nature or otherwise”

In its findings the National Hearing Committee stated that;

“You are guilty or charged and you be put on a final warning for both offences.  The two final warnings will run concurrently and they will be valid for 12 months from date of receipt of judgment.  The lesson prescribed was reached after considering mitigation and the huge prospects that you can be rehabilitated.”

These charges arose from a job that Respondent did on the 9th of September 2011 at Rogel Security, 38 Glarmorgan Avenue, Belvedere, Harare.  The Appellant’s grounds of appeal are that;

The National Hearing Committee erred and misdirected itself at law by proceeding to hear the Appeal in the absence of the Appellant’s representatives and without inviting the Appellant to attend the hearing.

The National Hearing Committee erred and misdirected itself at law in overturning the decision by the Regional Hearing Committee which had found Respondent guilty of all charges raised against him when evidence adduced demonstrated that Respondent had been properly found guilty.

The National Hearing Committee was wrong at law to set aside the penalties imposed by the Regional Hearing Committee and substituting the same with the penalties of written warnings when offences that Respondent had been found guilty of were dismissable offences.

The Appellant therefore prayed that the decision by the National Hearing Committee dated 22nd March 2012 be set aside and that the same be substituted with an order confirming the decision by the Regional Hearing Committee which found the Respondent guilty and imposed a penalty of dismissal from employment.

The Respondent on the other hand told the court that;

Appellant’s point that they were supposed to be present at the hearing is not supported by any law because Section 8.2.4. (3) (b) of the Communications And Allied Service Sector Employment Code of Conduct  states that the hearing/review shall be conducted on record and that no fresh evidence should be allowed and parties may be called to present their grounds of appeal and/or clarify unclear points.

Not all of the misconduct charges were dismissable offences.

The dismissable penalties in the code and fresh guidelines to the disciplinary committee.

Section 8.2.3. (a) of the Company’s Conduct endows the National Hearing Committee with the power to vary, uphold, or set aside decisions of the Hearing Committee.

The Respondent therefore prayed that the appeal by the applicant should be dismissed on a higher scale and the decision by the National Hearing Committee to reinstate the Respondent dated 22nd March 2012 should be reinstated.

It is common cause that the National Hearing Committee;

Convicted the Respondent of contravening category 3 (2) of the Code of Conduct.

Convicted the Respondent of contravening category 4 (14) of the Code of Conduct.

Category 4 calls for dismissal as a penalty.

Category 3 calls for a written warning for the first offences.

What is to be decided is whether

The National Hearing Committee erred by hearing the appeal without the presence of the Appellant.

(ii) The National Hearing Committee imposed the correct penalties on the offences that Respondent was convicted of.

Section 8 (2) 4 (3) (e) of the Communications And Allied Services Section Employment Code of Conduct states that parties may be called to present their grounds of appeal and or to clarify unclear points.  This therefore means that the Hearing Committee had the discretion to call parties.  The Committee therefore not did err by not calling the Appellant to present their case during the hearing.

The Respondent has told the court that the penalties in the Code are just guide lines and they are not obligations.  The Code has not indicated that the penalties are guidelines.  It has not indicated that the penalties are not obligatory Category 4 offences provide for a penalty of dismissal.  Category 4 (14) which is Falsification of records or any documents whether of a personal nature or otherwise.  Dishonesty is a factor which goes to the root of the contract of employment.  Asking for a bribe for him to perform his duties was a serious case of dishonesty.  The National Hearing Committee was therefore convict code it imposed a penalty of dismissal on this case.

In view of the foregoing it is this court’s view that the appeal succeeds on the charge of contravening Section 4 (14) of the Code.

IT IS THEREFORE ORDERED THAT

The penalty of dismissal be and is hereby imposed for contravening Section 4 (14) of the Code.

The penalty of a warning for contravening Section 3 (2) is upheld.

Each party to pay its own costs.

Dondo & Partners – Appellant’s Legal Practitioners

Honey & Blanckenberg – Respondent’s Legal Practitioners