ZIYAMBI
JA:
This
is an appeal against the judgment of the Labour Court in which it
upheld an award by an arbitrator dismissing the appellant's appeal.
The arbitrator substituted a penalty of a final warning in place of
an order of dismissal made by the appellant.
It
is common cause that the respondent, a managerial employee employed
by the appellant for 20 years, participated as spokesperson in, and
facilitated, an unlawful industrial action by the employees of the
appellant. Following a hearing, the respondent was found guilty of
two acts of misconduct, namely, conduct inconsistent with the express
or implied terms of his contract and disobedience to a lawful order
as a result of which he was dismissed from employment.
The
arbitrator to whom the matter was referred for compulsory arbitration
found, that in the process of the unlawful industrial action, the
respondent “openly taunted members of management and challenged
their authority. He openly called for the dismissal of six managers
and brought about chaos and mayhem at the appellant's business
premises on 3 and 4 December 2008. He held a very senior position as
branch manager and he openly led and associated himself with his
subordinates in an act of disobedience to his superiors”.
He
found that the appellant could not be faulted in finding that the
respondent's conduct warranted his dismissal from employment and
that the two 'offences' of which the respondent was found guilty
and in respect of which he was dismissed by the appellant went to the
“very basis" of his contract of employment with the respondent. He
found the appellant's decision to dismiss the respondent to be
'unassailable'.
Notwithstanding
the above findings, the arbitrator went on to find that the dismissal
was unfair in the circumstances principally because only the
respondent of all the employees who participated in the industrial
action had been singled out for disciplinary action. He found to be
mitigatory the fact that the unlawful industrial action consisted of
a peaceful sit-in which lasted only 2 and a half hours; that the
workers had genuine grievances; and that the record of service of the
respondent had been accorded little weight. He therefore set aside
the penalty of the dismissal and imposed in its place a final
warning.
The
court a
quo
agreed with the arbitrator and upheld his award. It found that in
terms of section 12B(4) of the Labour Act, the arbitrator was correct
in setting aside the penalty of dismissal imposed by the appellant.
In addition, the court a
quo
found as mitigating the submission that the respondent had acted both
in a personal and representative capacity and that he was leading
workers who 'needed little persuasion'.
The
gravamen of the appeal is that the Labour Court erred in upholding
the manner in which the arbitrator exercised his discretion in terms
of section 12B(4) of the Labour Act and that the decision of the
court a
quo
ignored the employer's right to dismiss an employee found guilty of
an act of misconduct which goes to the root of the employment
contract. Alternatively, it was contended that the order made by the
arbitrator was defective in that it made no award of damages as an
alternative to reinstatement as required by section 89(2)(c)(iii) of
the Labour Act and that the court a
quo
misdirected itself in upholding the order.
Having
considered submissions of both counsel, we are of the view that
Jiah's
case
to which we were referred by the respondent is not applicable to the
circumstances of this case. The record clearly shows, and the
arbitrator found, that the respondent committed serious acts of
misconduct which went to the root of his contract of employment. The
law is clear that in a situation such as this the employer is
entitled to dismiss the employee. The fact that the respondent was
singled out for disciplinary action becomes irrelevant once it is
accepted that his misconduct went to the root of his employment
contract.
In
the exercise of their powers in terms of section 12B(4) of the Labour
Act, the Labour Court and arbitrators must be reminded that that the
section does not confer upon them an unbounded power to alter a
penalty of dismissal imposed by an employer just because they
disagree with it. In the absence of a misdirection or
unreasonableness on the part of the employer in arriving at the
decision to dismiss an employee, an appeal court will generally not
interfere with the exercise of the employer's discretion to dismiss
an employee found guilty of a misconduct which goes to the root of
the contract of employment.
We
are therefore of the unanimous view that both the Labour Court and
the arbitrator erred in substituting their discretion for that of the
employer in setting aside the dismissal.
In
view of the decision we have reached it is not necessary to consider
the alternative relief sought by the appellant.
It
is accordingly ordered as follows:
(1)
The appeal be and is hereby allowed with costs.
(2)
The order of the court a
quo
is set aside and substituted as follows:
The
appeal is allowed with no order as to costs.
The
award of the arbitrator is set aside and the dismissal of the
respondent is hereby confirmed.
GARWE
JA: I agree
GOWORA
AJA: I agree
Wintertons,
appellant's legal practitioners
Sinyoro
& Partners,
respondent's legal practitioners
1.
Jiah & Ors v Public Service Commission & Ors 1999 (1) ZLR 17
