Telone V Tayib Mutodzaniswa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/499/14
HARARE ON 19th MARCH, 2014
CASE NO. LC/H/331/12
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/499/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/499/14

HARARE ON 19th MARCH, 2014				             CASE NO. LC/H/331/12

AND 1st AUGUST, 2014

In the matter between

TELONE 				–	APPELANT

And

TAYIB MUTODZANISWA	-	RESPONDENT

Before The Honourable E Makamure J.

For Appellant:     Mr J. Dondo (Legal Practitioner)

For Respondent : Mr B. Peresuh	 (Legal Practitioner)

MAKAMURE  J,

The appellant appeals to this Court against the determination made by its appellate body. In brief the respondent was dismissed by the Regional Hearing Committee following disciplinary proceedings. In terms of the applicable Code the National Hearing Committee (NHC) varied the dismissal penalty to a Final Written Warning. This aggrieved the appellant hence this appeal.

The grounds of appeal are as follows:-

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

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 final written warnings when offences that Respondent had been found guilty of were dismissable offences. More particularly the Appellant’s Regional Hearing Committee had properly exercised its mind and correctly imposed the penalty of dismissal having considered the mitigating and aggravating factors and it was not called for the National Hearing Committee to substitute its discretion for that of the Appellant’s Regional Hearing Committee.

It is important to note that the appellant’s disciplinary matters are conducted in terms of its Code of Conduct. It is this same Code which empowers the NHC in its Section 8.2.3(a) to “uphold, set aside or vary decisions of the Hearing Committee”. Codes of Conduct are meant to bind both employer and employees. In Tadious Gova vs.  Zimbabwe Mining and Smelting Company (Private) Limited HH-B-1-98, the High Court stated that there is no point in making Codes of Conduct and then failing to comply with them. The NHC conducted the proceedings as required by the applicable Code. It then exercised its discretion and varied the penalty. It is entitled to do so. It is not being alleged that the National Hearing Committee misinterpreted the provisions of its Code. What the Appellant is asking the Court to do is to remove the National Hearing Committee’s power to exercise its discretion. If that was allowed to happen, this would be tantamount to, not only interfering with the disciplinary proceedings at the workplace, but the Court will be drafting the code for the parties. That is improper. Employment Codes are sacrosanct. The Courts respect them. Courts should not interfere with disciplinary proceedings at the work place unless if it is absolutely necessary to do so. The Courts should not interfere with the employer’s discretion either to dismiss or not to dismiss an employee. While the penalty for a misconduct even upon a first breach may be dismissal, the employer may choose not to dismiss. That discretion should be respected (see Zikiti vs. United Bottlers 1998 (1) ZLR 389 (H); Coh Coh Enterprises (Pvt) Ltd vs T. Mativenga 2. P. Kusowa SC 30/2001). The employer through its Code empowered the National Hearing Committee to vary the decision of its hearing committee. That is entirely within its province. There is no need for the Court to alter anything. In the result I find that there is no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Messrs Dondo & Partners, legal practitioners for the Appellant

Honey & Blanckenberg, legal practitioners for the Respondent