Waddilove High School v Tapiwa Chinyerere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/148/2016
HARARE, 22 FEBRUARY 2016 &
18 MARCH 2016
CASE NO LC/H/433/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/148/2016

HARARE, 22 FEBRUARY 2016 &			                 CASE NO LC/H/433/2015

18 MARCH 2016

In the matter between

WADDILOVE HIGH SCHOOL					        APPELLANT

Versus

TAPIWA CHINYERERE						      RESPONDENT

Before the Honourable F C Maxwell J

For the Appellant	Ms I Mapanzure  (Legal Practitioner)

For the Respondent     Ms S Chihombe (Trade Unionist)

MAXWELL J:

At the hearing of this matter I upheld the appeal with costs. The following are the reasons for that decision:

The sole issue before this court is whether or not the National Employment Council for the Welfare and Educational institutions Appeals Committee (“NECWEl Appeals Committee’) was correct to interfere with the penalty of dismissal imposed on the respondent by the Disciplinary Committee.

It is trite that an appeal court will not interfere with the exercise of discretion unless such exercise has been afflicted by a serious misdirection.

It has not been proved in this case that the exercise of discretion by the Disciplinary Committee was afflicted by a serious misdirection.

The sole basis for NECWEl Appeals Committee’s interference as appears from the observations on page 6 of the record is that the Code of Conduct provides for a final written warning as the ultimate penalty.

In Toyota Zimbabwe v Richard Posi SC 55-07 the Supreme Court held that dismissal was appropriate for a first offender for a conviction of an employee of misconduct which goes to the root of the employment relationship. In that case, the respondent had argued that the Disciplinary Committee had no discretion in the matter of what penalty to impose as the Code of Conduct stipulated a penalty of a final written warning valid for twelve months and/or demotion and/or suspension without pay for up to thirty days for a first breach.

This court is bound by decisions of the Supreme Court and is obliged to follow them unless they have been distinguished from the facts before it. I find no reason to depart from the position stated in the Toyota Zimbabwe case.

Accordingly I give the following order:

The appeal be and is hereby upheld with costs.

The decision of the NECWEI Appeals Committee be and is hereby set aside.

The dismissal of the respondent from employment be and is hereby confirmed.

Chinawa Law Chambers, appellant’s legal practitioner