MALABA DCJ: This
is an appeal against the judgment of the Labour Court setting aside
the decision of the arbitrator by which she confirmed the dismissal
of the respondent from employment following a conviction for
misconduct.
The respondent was convicted
of conduct inconsistent with the fulfilment of the express or implied
terms or conditions of his contract of employment contrary to the
provisions of section 4(a) of S.I. 15 of 2009.
It was alleged that the
respondent, in the course of his employment as a pizza maker, had
produced a pizza without having received the necessary docket
authorising the production of the pizza.
In terms of the code of
conduct what the respondent did constituted a dismissible offence.
The disciplinary hearing committee and the arbitrator found that the
misconduct by the respondent was of a serious nature going to the
root of the relationship of employment and that it involved an
element of dishonesty on the part of the respondent.
The
Labour Court overturned the penalty of dismissal and substituted it
with reinstatement. In doing so it held that the arbitrator had not
taken into consideration that the respondent was acting under
pressure. It went on to say that the appellant had not suffered any
prejudice through the production of the pizza and that the pizza was
worth only $4.00. It also said that the penalty should have been
corrective rather than punitive.
The unanimous view of the
Court is that the Labour Court seriously misdirected itself in coming
to the conclusion it did. There is no question that the appellant had
contested the allegation by the respondent that he was acting under
work pressure. Indeed, the Labour Court acknowledged this in the
third paragraph of its reasons for judgment. The issue of prejudice
was irrelevant to the assessment of an appropriate penalty because
the purpose of the introduction of the docket system was to obviate
dishonest conduct on the part of pizza makers.
The finding that the pizza was
only $4.00 was of no consequence. The offence committed involved a
betrayal of trust and confidence reposed in the respondent by the
appellant thereby going to the root of the relationship between the
employer and employee. In the circumstance the holding by the Labour
Court that the respondent ought to have been corrected is a
misapplication of the provisions of section 7(1) of S.I. 15 of 2006.
The provision was not intended to apply in a situation where the
misconduct of an employee goes to the root of the contract of
employment.
A principle has now been
firmly established to the effect 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.
In this case the Labour Court
did not even appreciate that it was dealing with a case of an
exercise of discretion by the arbitrator. The Labour Court merely
substituted its own discretion for that of the arbitrator, without
finding any recognisable misdirection on the part of the arbitrator.
In the circumstances, the
Court is satisfied that the appeal ought to succeed.
Accordingly, it is ordered as
follows:
1. The appeal succeeds with costs.
2. The order of
the Labour Court is set aside and substituted with the
following:
"The appeal is dismissed with costs".
GARWE JA: I agree
OMERJEE AJA: I agree
Wintertons, appellant's
legal practitioners
Matimba & Muchengeti, respondent's legal
practitioners
