CELSYS LTD v NDELEZIWA

SUPREME COURT, HARARE

[Labour Appeal SC 49-15]

September 16, 2014 and July 29, 2015

GWAUNZA, HLATSHWAYO AND PATEL JJA

Employment – Employee’s misconduct – Employer’s discretion to dismiss – When such discretion may be interfered with – Misdirection or unreasonableness as basis for interference with penalty.

The respondent employee was charged with, and convicted of, the act of misconduct of “any act or omission inconsistent with the fulfilment of the express or implied conditions of employment.” He was dismissed. He appealed to the National Employment Council for the Industry (NEC) which ruled that the penalty of dismissal was too harsh in the circumstances and set it aside. In place of dismissal, it substituted a final written warning valid for 12 months. The Labour Court dismissed the employer’s appeal. The employer further appealed to the Supreme Court.

Held, that while the law is settled that in circumstances where an employer takes a serious view of an employee’s misconduct, it has a clear discretion in imposing the penalty of dismissal after finding such employee guilty of the misconduct in question, an appeal court is justified in interfering with the penalty of dismissal where the employer has acted unreasonably in imposing the penalty.

Held, further, that in the circumstances of this case, the penalty of dismissal was unreasonable and therefore a misdirection. Accordingly, interference with the discretion to dismiss was justified.

 

Cases cited:

Clouston & Co Ltd v Corry [1906] AC 122, PC, referred to

Mashonaland Turf Club v Mutangadura SC 5-12 (unreported), referred to

Standard Chartered Bank Zimbabwe Limited v Chapuka SC 125-04 (unreported), referred to

Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S), applied

 

Legislation considered:

Collective Bargaining Agreement for the Printing, Packaging and Newspaper Industry, 2009 (SI 148 of 2009), cl 18

 

D Ndawana, for the appellant

S Banda, for the respondent

 

GWAUNZA JA:

This is an appeal against the entire judgment of the Labour Court, dated 4 May 2012.

The facts of the matter are largely common cause and may be summarised as follows:

The respondent was employed by the appellant as a Stores Foreman. In this capacity he ordered for the appellant, white sheet board size 610 × 860 mm from Paroan Vista. Paroan Vista however supplied the wrong size of sheet board, ie 610 × 810 mm, which was received by the respondent. The respondent subsequently used a pen to alter the copy of the Goods Received Voucher (GRV) to reflect the size received. He did not let the Machine Minder know that the board that he was using was of a different size to the one required. The result was that the latter was left to discover the error for himself, a circumstance that led to the matter being drawn to the attention of the respondent’s superiors. The appellant in light of this conduct, took the view that the purpose of the respondent’s alteration of the GVR was to conceal his defective work or his inefficiency. He was thereafter charged with contravening cl 18 of SI 148 of 2009: Collective Bargaining Agreement for the Printing, Packaging and Newspaper Industry, that is:

“any act or omission inconsistent with the fulfilment of the express or implied conditions of employment.”

The respondent was found guilty by a Disciplinary Officer and dismissed from employment. He appealed to the Chief Executive Officer who upheld the findings of the Disciplinary Officer. He further appealed to the National Employment Council for the Industry (NEC) which ruled that the penalty of dismissal was too harsh in the circumstances. It ordered:

(i) reinstatement of the respondent without loss of salary and benefits,

(ii) that the respondent forfeits one month’s salary, and

(iii) that he be served with a final written warning valid for 12 months.

The appellant was aggrieved by this decision and appealed to the Labour Court which dismissed the appeal and made the additional order that if re-instatement was no longer an option, the respondent be paid damages in lieu of reinstatement. This did not go down well with the appellant who has filed the present appeal.

It is common cause that the respondent does not deny the charge. He only takes issue with what he perceives to be a harsh penalty under the circumstances. Both the NEC and the court a quo agreed with him.

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