Vimbanechako v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/144/2021
HARARE, 1 JUNE 2021&
CASE NO LC/H/190/19
24 SEPTEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/144/2021

HARARE, 1 JUNE  2021&				               CASE NO LC/H/190/19

24  SEPTEMBER  2021

In the matter between:-

JUDGE VIMBANECHAKO				APPELLANT

And

PUBLIC SERVICE COMMISSION			RESPONDENT

Before the Honourable Kudya J

For the Applicant			V. Revesai (Legal Practitioner)

For the Respondent			M. Makuvire  (Civil Division)

KUDYA, J:

This matter was set down as an appeal against the guilty verdict and dismissal penalty which was meted out on appellant employee following a labour dispute pitting him and the respondent employer.

On the hearing date the appellant abandoned the appeal ground dealing with the guilty verdict but proceeded to address the court on the dismissal penalty. This judgment therefore addresses the penalty issue only.  It is the appellant’s contention that dismissal was a drastic remedy in his case.  He maintains that since the PSC regulations underscore the need for punishment to be corrective first it is his considered view that a final warning would have met the justice of his case.  He contends further that the same PSC regulations state that a dismissal penalty would only be appropriate if warnings have failed in a particular case.  In the result he prays that the dismissal penalty meted out in his case be set aside and that he be penalised by a final written warning.  He also prays that he be reinstated to his original position with full pay and benefits and that if reinstatement is no longer tenable he be paid damages in place of reinstatement.

In response the respondent maintains that dismissal was an appropriate penalty in the matter.  It reasons that it was not necessarily to give appellant warnings before meting out the dismissal penalty.  It also underscores that the long service by appellant meant that he should have executed his duties better than a non experienced officer.  His infraction given his long service therefore stood in aggravation of his conduct. In the result the respondent prays that the dismissal penalty be made to stand and that the appeal against the dismissal penalty be set aside with costs.

It is settled law that penalising discretion lies with the employer.  See  Circle Cement v Nyawasha  SC-10-03  If the employer takes a serious view of the misconduct  no matter how trivial it might appear dismissal can still be adjudged appropriate See Innscor v Chimoto  SC-6-12. Further to that it is not the appellate court’s duty to substitute its discretion for that of the tribunal before it See Nyahondo v Hokonya 1997 (2) ZLR 475.  It is only where the discretion has been exercised in a grossly unreasonable manner where the appeal court can come in and set aside what the  lower tribunal would have done.

In the case at hand it is evident that appellant was a seasoned officer who should have known better how to clear immigrants or travellers.  Further to that his employer is a public body and any infractions by its personnel diminishes the public confidence in it and consequently puts the organisation’s image into disrepute.  Appellant concedes that the instant case is not his first brush with the law vis his employment but hastens to mention that the previous infractions were not directly under the section that he now stands convicted of.

As stated above it is clear that when the employer settled on the dismissal penalty it was mindful of the long service, the image of the organisation and the damage to the public confidence.  The court is not persuaded that the respondent erred in meting out the dismissal penalty.  Granted, disciplinary proceedings should be educative and corrective at first but where the applicant sinks to the deep end of flouting the regulations as did the respondent the employer cannot be faulted for concluding as it did that the conduct merited dismissal. In the ultimate the court is satisfied that no good case for appeal has been made out by appellant.  His appeal should therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

The dismissal penalty  stands.

Zimudzi and Associates,  Applicant’s Legal Practitioner