Zimpost (Private) Limited V Irvine G Mbanje

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/187/2016
HARARE, 1 JULY 2015 &
18 MARCH 2016
CASE NO LC/H/238/2013
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/187/2016

HARARE, 1 JULY 2015 &				                  CASE NO LC/H/238/2013

18 MARCH 2016

In the matter between

ZIMPOST (PRIVATE) LIMITED						APPELLANT

And

IRVINE G MBANJE							RESPONDENT

Before the Honourable E Makamure J

For the Appellant   C Kwaramba (Legal Practitioner)

The Respondent in Person

MAKAMURE J:

This is an appeal against the decision of the National Hearing Committee (NHC), which is the appellant’s appellate body. The initial tribunal which heard the matter between the parties is the Regional Hearing Committee (RHC). The RHC convicted the respondent of two charges and penalized him with dismissal. The respondent appealed to the NHC. The NHC determined that the respondent was guilty of one out of the two offences with which he was charged. The NHC proceeded to alter the dismissal penalty which the RHC had imposed. In its stead the NHC imposed a final written warning valid for twelve months.

The facts of the matter are that the respondent is employed by the appellant as a postman. Due to the fact that the appellant’s business has since diversified, it was no longer feasible for a postman to be solely responsible for transmitting mail. As a result postmen also sell airtime as part of their core duties. In the present case the controlling officer who is the respondent’s superior was not playing his part in ensuring that procedures are strictly followed. The procedure was that airtime was to be sold only on cash basis. Credit sales were not supposed to be made. Cash was to be remitted on a daily basis with the remaining airtime cards being remitted daily to the controlling officer for him to balance the records. There was never any remittances and checks done on a daily basis. This meant that postmen sold airtime on both cash and credit basis. They would later collect the payments from credit customers. It appears that it was an established practice for postmen to sell air time in the manner articulated by the respondent, that is both on credit and on cash basis. I did not hear the appellant to deny it. During the course of the conduct of his duties the respondent’s supervisor never raised issue with this nor did he draw the respondent’s attention to what the appropriate procedure was.

The respondent continued selling his cards on credit and cash. A spot check was carried out before the credit customers had paid him. He was not given time to collect cash from those credit customers. He was thus found to have misconduct himself. The NHC found that no controls were in place to stop postmen from selling airtime on credit. After its deliberations, the NHC voted and a final written warning valid for twelve months penalty was imposed. The appellant was aggrieved by that decision and appeals to this court on the following grounds:

“1.	The National Hearing Committee erred in law by setting aside the dismissal and substituting it with a final written warning valid for 12 months.

2.	Once the employer had taken a dim view of the misconduct and decided that dismissal was the penalty there was no basis for the National Hearing Committee to overturn the decision.

3.	The decision of the Disciplinary Committee could only be overturned on the basis of error or irrationality. None of these were shown in this matter to justify interference with the lower tribunal’s decision.

4.	Thus the decision of the National Hearing Committee was grossly unreasonable. The question to be decided was whether the disciplinary committee had erred or not on the facts or on the law.

5.	The National Hearing Committee failed to apply its mind to this question. It applied the wrong principle and took into account extraneous matters.

6.	Once the employee has been correctly found guilty as in this case and the offence is punishable by dismissal in terms of the Code, and the employer decides to dismiss, the issue of mitigation becomes extraneous.

7.	For the above reasons the appeal must succeed, the decision of the National Hearing Committee must be set aside, and consequently that of the Disciplinary Committee must stand.

8.	The National Hearing Council failed to take into account the nature of the misconduct. The dishonesty by the employee virtually destroyed the relationship of trust which existed prior to the misconduct and made continued employment intolerable.

9.	The Regional Hearing Committee did not improperly apply its discretion in imposing the penalty of dismissal. The mitigatory circumstances were properly considered.”

It is an established practice that when an appellate court sits, it is bound by the record before it. It does not have the benefit of what evidence the earlier tribunal had. Further the earlier tribunal is part of the domestic remedies which knows the operations of the workplace. The fact that its composition is derived from representatives of the workers and management is reflective of this. Further it is always the employer and properly so, which or who has the upper hand. It is the employer’s prerogative to discipline employees as it sees fit. Disciplinary proceedings are conducted in terms of the applicable Code of Conduct. This enables the employer to manage its affairs in an orderly fashion. When an employer therefore is appealing a decision, it is practically appealing its own decision. It is important to respect decisions of domestic appellate tribunals as they have the knowledge of the workplace. Employers should hold their own disciplinary procedures in high esteem and be prepared to be bound by them. It is an established principle of our law that an appellate court should not interfere with a decision made by a lower tribunal unless it is necessary to do so. In Passmore Malimanjani v Central Africa Building Society (CABS) SC 47-07 the Supreme Court held that:

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower court unless it is shown that the discretion was improperly exercised.”

In the present case it is my considered view that the NHC properly exercised its discretion. I see no reason why its decision should be interfered with.

Further it is also observed that it is the employer who created the situation due to the prevailing harsh economic environment. In the process of doing what the employer had directed, the respondent found himself in this unenviable situation. He was not afforded time to collect the dues from clients like what happened with his colleagues. He should have been afforded the time to do so as others were. Had the appellant not directed the respondent to sell airtime in the manner that it did, the respondent would not have found himself in this position. An employer cannot rely on a misconduct it induced. See Mushaya v Glens Corporation 1992 (1) ZLR 162. In the result I find that there is no merit in the appeal. The appeal fails in its entirety.

The decision of the NHC is hereby confirmed.

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

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners