Watershed College v Garimoto Garimoto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/473/16
HELD AT HARARE 14 JULY 2016
CASE NO
JUDGMENT NO LC/H/473/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/473/16

HELD AT HARARE 14 JULY 2016				CASE NO LC/H/APP/816/14

& 19 AUGUST 2016

In the matter between:

WATERSHED COLLEGE				Applicant

And

GARIMOTO GARIMOTO				Respondent

Before The Honourable Muchawa, J

For Applicant			C Mucheche (Legal Practitioner)

Respondent			In person

MUCHAWA J:

This is an application for leave to appeal to the Supreme Court against a judgment handed down on 24 October 2014.

The respondent was employed as a general hand by the applicant.  He was charged of actual or attempted theft, embezzlement, fraud or bribery in terms of the code of conduct for the Welfare & Educational Institutions.  He was found guilty and dismissed by a disciplinary committee.  An internal appeal confirmed this.

I found that the respondent had been wrongly found guilty.  I consequently ordered reinstatement without loss of salary and benefit from the date of unlawful dismissal with the alternative of damages.

The proposed grounds of appeal before the Supreme Court are stated as follows,

The Labour Court grossly erred on a question of law by interfering with and substituting the reasonable exercise of discretion by the employer in imposing the penalty of dismissal after properly finding the respondent guilty of misconduct bordering on dishonesty striking at the root of the employment relationship.

The Labour Court grossly erred on a question of law by substituting the dismissal penalty with reinstatement without cogent demonstration of gross unreasonableness of the employer’s decision which was confirmed by the applicable National Employment Council appeals body.

The learned judge grossly erred on a question of law in not making a finding that the respondent’s dismissal was procedurally and substantively fair.

The requirement  for the granting of leave to appeal are that there are reasonable

prospects of success, the amount in dispute is not trifling and the matter is of substantial importance to one or both parties and the balance of convenience favours the granting of such application.  Pichanick N O v Paterson 1993 (2) ZLR 163 (H).

In addition, in terms of section 98 (10) of the Labour Act, the proposed grounds of appeal should be on a question of law.

The respondent who was a self actor abandoned the preliminary point relating to whether the applicant has raised questions of law in the proposed appeal.

Prospects of success

Mr Mucheche for the applicant argued that the applicant has reasonable prospects of success on appeal.  He argued that ground 1 of appeal deals with the propriety of the verdict whilst ground 2 deals with the propriety of the penalty.

A proper reading of the proposed grounds however shows that both grounds question the propriety of the penalty albeit in different ways.

Ground 1 is alleging that this court erred in interfering and substituting the applicant’s reasonable exercise of discretion in imposing a penalty of dismissal given that the applicant had properly found the respondent guilty of a misconduct with elements of dishonesty in it.

Ground 2 expands ground 1 by stating  that the court should not have substituted the dismissal penalty without demonstrating gross unreasonableness in the employer’s decision.

Ground 3 alleges that no finding was made that the respondent’s dismissal was procedurally and substantively unfair.

My considered view is that the applicant has no prospects of success on appeal.

The judgment in issue makes the following finding after considering the propriety of the verdict;

“In the circumstances, I find that this ground of appeal succeeds.  Appellant was wrongly found guilty of an act of misconduct of “actual or attempted theft, embezzlement, fraud or bribery.”

There would therefore be no merit in ground of appeal 3 and this court did find that the dismissal of the respondent was substantively unfair.  In any event, this ground raises a question of fact.

On the basis of the finding of the improper verdict of guilty, it was consequently ordered that the respondent be reinstated.

The applicant cannot therefore succeed in questioning the propriety of the substitution of the dismissal penalty without succeeding on the question of the propriety of the verdict.  No grounds of appeal have been advanced on this.

The balance of convenience and the interests of finality to litigation, in the circumstances of the hopeless chances of success on appeal, favour the dismissal of this application.

Accordingly the application is dismissed with costs.

Matsikidze & Mucheche, applicant’s legal practitioners