Wedzerayi Mudzonga v Delta Beverages (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/43/22
HARARE, 15 NOVEMBER, 2021
CASE NO. LC/H/245/19
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IN THE LABOUR COURT OF ZIMBABWE	            JUDGMENT NO. LC/H/43/22

HARARE, 15 NOVEMBER, 2021	              	   CASE NO. LC/H/245/19

AND 25 FEBRUARY, 2022

In the matter between:-

WEDZERAYI MUDZONGA						Appellant

Versus

DELTA BEVERAGES (PRIVATE) LIMITED				Respondent

Before The Honourable L. Hove, Judge:

For Appellant:	Mr K. Gama (Gama & Partners)

For Respondent:	Mr P. Dube (Dube, Manikai & Hwacha)

HOVE J:

The Appellant is appealing against the decision to find him guilty and to dismiss him from work.

The Appellant was employed by the Respondent before being suspended from the Respondent’s company and charged with alleged Acts of misconduct. He was found guilty and dismissed. Internal appeals were all unsuccessful and hence this appeal to this court.

The charge that the appellant faced was that of “proven cases of fraud, uttering a false document”. As read with definition 31 ……..”It is fraud to make false statements or claim whether in oral or written form and make any false representation by words or conduct in order to obtain material advantage”.

In this appeal, the Appellant’s amended grounds of appeal are;

1.	The Works council erred in not acquitting appellant of fraud or uttering a false document.

2.	Further, the Works Council erred in finding Appellant guilty of non-compliance with established or standard operating procedures.

3.	Furthermore, the works council erred in meting out the dismissal penalty to Appellant for non-compliance with established procedures and in the face of mitigating factors as the absence of prejudice to the employer and the nature training or instructions given to Appellant by his monitor.

The appeal is opposed and the court will address the grounds raised in the order in which they have been brought.

Whether the Works council erred in not acquitting the Appellant fraud or uttering a false document?

This ground of appeal is too wide and generalized. It is not clear what it is that the Appellant is appealing against. It is not clear whether the Appellant was aggrieved by the entire evidence led or part of it or even the factual conclusions arrived at by the tribunal a quo. The ground does not say how it is that the respondent erred.

In arguing the ground, the Appellant’s representative submitted that the Appellant was charged as per page 64 of the record and the determination is on pages 13-16, consequent to this submission the Appellant’s representative argued that the Works council found the Appellant guilty of violating standard operating procedures (sop) and not fraud and uttering a false document. The Appellant’s representative then submitted that violating the standard operating procedures was not an alternative charge to fraud or uttering a false document. Finding the Appellant guilty of violating standard operating procedures was not a competent verdict and it was submitted that there is authority to support this position. The court was then referred to the case of Sandvik Mining and Construction Zimbabwe (Private) Limited SC 31/13 in that case, Patel AJA as he then was stated that;

“………………..there are certain basic principles that neither a court or tribunal can depart from one of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognizable affinity with one another”.

The Appellant was indeed charged with fraud/uttering a false document as defined in terms of the code. On page 44 of the record the Appellant was found guilty of the charge that had been preferred against him. This decision of the immediate superior level hearing made no reference to standard operating procedure but repeated the charge on the first page of the determination on page 41 of the record and on page 44 of the record, the immediate superior level’s verdict was guilty of this charge.

The Appellant appealed internally up to the works council and lost at all stages. The works council on pages 13 to 16, that is, its determination, was only dealing with the appeal grounds raised by the Appellant before it and reference to standard operating procedure was important only in so far as it demonstrated that the Appellant had committed the offence of fraud and uttering. The works council never once mentioned in its verdict on each appeal ground that the appellant was guilty of violating standard operating procedures. All of the grounds of appeal before the Works council were dismissed. The works council thereafter stated as follows;

“Having considered your appeal grounds, your submissions, the deliberations of the hearing committee, record of proceedings, circumstances of the case and mitigating factors, the works council level hearing has dismissed your grounds of appeal.

The committee upheld the verdict of dismissal from Delta Beverages with effect from the 14th of October 2019”.

It is not true therefore that the works council convicted the Appellant of an offence which he was not charged with. The verdict was a competent one.

The two cases of Nyarumbu v Sandvik Mining and Construction Zimbabwe (Private) Limited (supra) and that of Rangarirai Gozho v Minister of Education, Sports and Culture SC 155/20 do not support the Appellant’s case as he was convicted of the offence he was charged with.

There is therefore no merit in the 1st ground of appeal.

Ground of Appeal No.2

Whether the Works Council erred in finding Appellant guilty of non-compliance with Standard Operating Procedures

The analysis in relation to the 1st ground of appeal equally answers the second ground of appeal.

The Appellant was not found guilty of anything by the works council. The works council, sitting as an appellate tribunal merely confirmed the decision appealed against. Its mandate was not to find the Appellant guilty or not guilty but to consider whether or not the hearing a quo properly found the Appellant guilty in the light of the evidence placed before the hearing body and upon considering the record before it. See in connection with the role and duty of an appellate body or court, the case of Bak Storage v (Private) Limited vs Munyaka SC 39/17.

A reading of the works councils deliberations and verdict was to confirm the guilty of the Appellant and to confirm the dismissal.

The ground of appeal is based on an incorrect assumption that the works council found the Appellant guilty of violating or non-compliance with the standard operating procedures, all that the works council did, was to uphold the decision appealed against and to confirm the verdict. The ground is therefore entirely devoid of merit.

Ground of appeal No. 3

Did the works council err in meting out the dismissal penalty?

The works council did not mete out the dismissal penalty. It upheld the decision and the penalty appealed against. The dismissal was not for non-compliance with the standard operating procedure but for the offence he was charged with. There was therefore no misdirection on the part of the works council in this regard.

It is also important to look at whether the penalty was appropriate in view of the mitigation, the absence of prejudice and lack of proper training. This is an issue that has done its fair rounds within our courts. I can do no better than to quote here a few decisions of the Supreme court in part.

“a principle has now been firmly established to the effect that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court”.

Per Malaba DCJ (as he then was) in Innscor Africa (Private) Limited v Chimoto SC 64/12.

Again in Mashonaland Turf Club v Mutangadura SC 51/12 Ziyambi JA stated that it was not open to an appellate court or tribunal to alter a penalty of dismissal in the absence of misdirection.

Further in Browne v Tanganda Tea Company SC 22/16 the court stated that;

“The position is settled that where an employer takes a serious view of misconduct committed by an employee and in its discretion imposes a penalty of dismissal the appellate court will generally not interfere with the exercise of discretion in the absence of demonstrated unreasonableness or gross irrationality”.

The points made in all these Supreme court judgments is that, firstly the issue of sentencing is in the employer’s discretion, secondly once an employer forms a serious view of the offence committed and its such that it goes to the root of the contract of employment, the employer is entitled to dismiss, thirdly an appellate court will generally not interfere unless it is demonstrated that there was serious misdirection in the exercise of discretion.

In casu, it has been argued, wrongly that the works council erred and acted on a wrong principle by unreasonably dismissing the appellant for allegedly acting contrary to established standard operating procedures.

This argument incorrectly states the facts of the matter. The appellant was convicted of fraud/uttering, a serious offence which goes to the root of any employment contract.

In Toyota vs Posi 2008 (1) ZLR 173 (S) at 179 the court opined that it is a settled point in terms of common law principles that an employer is entitled upon conviction of an employee on misconduct which goes to the roof of their relationship, to dismiss him.

No serious misdirection has been demonstrated on the part of the appeals committee in upholding the penalty of dismissal for fraud/uttering. The appellant has also failed to demonstrate that the offence is so trivial, so inadvertent so aberrant or otherwise excusable, that the penalty of dismissal was not warranted.

In the result, the three grounds of appeal are without merit and the following order disposing of the appeal is made;

Order

The appeal being entirely devoid of merit it be and is hereby dismissed with costs.