The respondent was employed by the appellant as a
mechanical foreman. On or about 12 March 2010, a screen problem developed at a
production site. An examination revealed that there was discharge of pulp to a
plate screen and that pulp was being discharged onto the floor. The mill was
stopped to allow rubbers to be changed. After this process an inside rubber was
found to be off position and, on 14 March 2010, the respondent was tasked to
attend to it. The respondent attended to the rubber but did not secure it
properly as he used worn out bolts instead of new ones. The job had to be
re-done by other artisans and in the process the appellant lost an hour and a
half worth of production time. As a result of this mal-performance the
respondent was, on 16 March 2010, charged with gross incompetence or
inefficiency in the performance of his duties.
Prior to the disciplinary hearing that took place on 15
April 2010, [relating to the above mentioned alleged misconduct], the
respondent had, on 1 April 2010, been convicted of a misconduct involving
negligence and had been given a final written warning as a penalty.
On 15 April 2010, he was convicted by the disciplinary
committee 'only' of negligence. He was dismissed on the basis that he was
already sitting on a final written warning which was given on
1 April 2010. Part of the determination by the disciplinary committee
read as follows:
“Although the offence amounts to negligence but as the
accused is already on a final warning, dismissal verdict awarded.”
The respondent appealed internally. He alleged, in the
appeal, that the final written warning which persuaded the disciplinary
committee to issue a penalty of dismissal related to an act of misconduct which
occurred after the act of misconduct which gave rise to the disciplinary
proceedings he was seeking to have set aside. He contended, therefore, that the
final written warning had been taken into account un-procedurally.
The question that arose was whether the consideration of
the final written warning was appropriate
when regard was had to the fact that it was issued out only after the
first offence had already been committed but not yet determined.
The Appeals Officer dismissed the appeal and upheld the
determination of the Disciplinary Committee.
The respondent appealed to the Labour Court.
In his grounds of appeal before the Labour Court, the
respondent alleged that the Disciplinary Committee erred in taking into account
the final written warning when considering an appropriate penalty. The essence
of the complaint was that the final written warning was in respect of an
offence committed after the commission of the offence in the matter before the
court.
The Labour Court found that the final written warning was
issued in relation to a different offence, and, as such, was not applicable to
the disciplinary proceedings which culminated in the dismissal of the
respondent. The court a quo stated:
“The Committee dismissed him on the basis that he was
sitting on a valid final written warning in respect of similarly placed
conduct. The record shows that the previous warning related to the loss by a
colleague of a tool that had been allocated to the appellant. This is not in
any way 'similar' to alleged acts of negligent performance of one's duties. It
was therefore a misdirection on the part of the hearing committee to take this
final written warning into account. The two offences were not similar.”…,.
On that basis, the Labour Court allowed the appeal and set
aside the dismissal of the respondent. In its stead, the Labour Court imposed a
final written warning.
It is against that decision that the appellant has
appealed.
In this Court, the appellant submitted that the respondent
was already sitting on a final written warning when he was convicted of the act
of misconduct and was dismissed on that basis. It was argued, further, that the
court a quo erred in interfering with the penalty imposed by the disciplinary
committee without any legal basis for doing so.
The respondent per contra, has argued that the final
written warning did not apply to the disciplinary proceedings simply because
the final written warning was not in place when the act of misconduct in issue
was committed. To that end it should not have played any part in the
determination of the appropriate penalty. In addition, the respondent contends
that the final written warning relates to an unrelated offence and for that
reason should never have been a consideration in the penalty.
Whether the Labour
Court was correct in interfering with the penalty imposed by the employer
The respondent did not challenge the decision to find him
guilty of misconduct. What was before the court therefore was the issue of the
penalty imposed upon the respondent and its appropriateness.
The court a quo could only have dealt with the question
whether or not the employer had improperly exercised its discretion.
The respondent has not suggested, either in the internal
appeals process or before the Labour Court, that the misconduct of which he was
found guilty did not go to the root of the employment contract and that on that
basis a penalty of dismissal was not justified. In Toyota v Posi 2008 (1) ZLR
173 (S) the position was stated as follows:
“That position accords with the common law principle that
an employer is entitled, upon conviction of an employee of misconduct which
goes to the root of their relationship, to dismiss him….,.
In any case, the fact that the two penalties, that is to
say the final written warning valid for 12 months and /or demotion and/or
suspension without pay for up to 30 days and dismissal are penalties provided
for the serious breaches, means that any of them can be lawfully imposed as a
punishment for the offences in that class of cases.”
At common law, an employer has the discretion on what
penalty can be imposed upon an employee who has been found guilty of an act of
misconduct which is inconsistent with the fulfilment of the expressed or
implied terms of his or her contract of employment and where such misconduct
goes to the root of his or her employment contract. See Toyota v Posi 2008 (1)
ZLR 173 (S)…,.
It is also settled that an appeal court cannot interfere
with the exercise of this discretion by the employer unless there has been a
misdirection in the exercise of such discretion. See Malimanjani v Central
African Building Society 2007 (2) ZLR 77 (S)…,.
The respondent did not attack the penalty imposed on the
premise that the exercise of its discretion by the employer was irrational or
that there had been a serious or gross misdirection on the part of the
employer. Indeed, before us, counsel for the respondent submitted that the
employer had not erred and made the concession that there was no irrationality
or misdirection on the part of the employer.
The court a quo appeared, however, to have justified its
interference with the penalty on the basis that the respondent had not been
found guilty of gross incompetence or inefficiency but negligence.
Clearly, the view it took was technical.
The law is settled that labour disputes should not be
delayed through the consideration of issues of a technical nature but should be
resolved on substantive issues.
In my view, it was immaterial whether the respondent had
been found guilty of negligence as opposed to gross incompetence or
inefficiency. The record shows that the evidence adduced established the
charges of misconduct preferred against him.
I agree with the submissions by counsel for the appellant
that the right to dismiss is available at common law and that such right is
entrenched. The employer, at its election, may decide to impose a lesser
penalty than dismissal. Such is the exercise of discretion. In Malimanjani v
Central African Building Society 2007 (2) ZLR 77 (S) this Court stated:
“The issue of what punishment to impose after an employee
is found guilty of an act of misconduct is clearly one of discretion…,.
It is trite that an appeal court does not interfere with
the exercise of a discretion by a lower tribunal unless it is shown that the
discretion was improperly exercised. As contended for the respondent, the
penalty imposed must show a serious misdirection to justify interference by the
appeal court.”
Clearly, the court a quo erred in interfering with the
employer's exercise of discretion. The court ought to have asked itself whether
the employer had properly taken a serious view of the matter and whether there
was sufficient evidence to support the conviction on the preferred charges.
Unfortunately, the court a quo did not ask itself these pertinent questions and
proceeded to determine the matter on an issue which was not even premised on
the grounds of appeal before it.
The law is clear that once an employer takes a serious view
of the matter and the aggravated nature of the misconduct, it is irrelevant
that the Code does not provide for dismissal as a penalty. In Circle Cement v
Nyawasha SC60-03, this Court held:
“Once the employer had taken a serious view of the act of
misconduct committed by the employee to the extent that it considered it to be
a repudiation of contract which it accepted by dismissing her from employment
the question of a penalty less severe being available for consideration would
not arise unless it was established that the employer acted unreasonably in
having a serious view of the offence committed by the employee. The principle
enunciated in Zikiti's case supra was inapplicable to the decision of the
disciplinary and grievance committee to dismiss Nyawasha because it was not
shown to the Labour Court that its finding, that her act of misconduct was of
so serious a nature as to constitute a repudiation of her contractual
obligation entitling Circle Cement to dismiss her from employment, was one a
reasonable employer would not have made.”
In my view, these remarks are not only pertinent they are
entirely apposite in the case in point. A mere examination of the charges of
gross incompetence or gross negligence preferred against the respondent reveals
the gravity with which the appellant viewed the respondent's conduct.
In any event, the court a quo did not sit to consider the
penalty against the backdrop of the exercise of discretion by an employer. It
proceeded to consider the propriety of the conviction. It therefore proceeded
on a wrong premise and misdirected itself in the process. Thus, there was no
principle of law upon which the court could have acted in overturning the
proper exercise of discretion by the employer.
Clearly, the court erred.
Whether the appellant
could have taken into account the final written warning in imposing a penalty
upon a conviction for misconduct
It was contended by the appellant that the court a quo
misdirected itself in concluding that it, the appellant, ought not to have had
regard to the final written warning in imposing a penalty upon the respondent.
The court a quo concluded that the final written warning
was not relevant for purposes of arriving at a penalty for the sole reason that,
in its view, the offences in issue were unrelated.
In this regard, the court a quo erred.
The final written warning was issued in relation to a
finding of guilty of negligence. In relation to the events of 16 March 2010,
although charged with gross incompetence or negligence, the respondent was
found guilty of negligence. In this respect, therefore, the final written
warning was a relevant consideration in relation to the offences.
The respondent never argued that the two offences were
unrelated. Rather, his contention was that as the final written warning was
issued for an offence committed after the commission of the misconduct for
which he was dismissed, the disciplinary committee ought not to have taken it
into account in assessing the penalty for the subsequent offence.
Had the court a quo dealt with the issues as presented by
the parties, it would have come to the realisation that the respondent was
dismissed because he was sitting on a final written warning. It would have then
had to consider whether the appellant, in dismissing the respondent, had
exercised its discretion improperly. Its failure to deal with the matter before
it amounts to a misdirection which invites this Court to interfere with its
conclusion.
The appellant contends that the respondent was dismissed
because he was a habitual offender and that his offences caused losses to the
appellant.
I could not agree more.
The Code of Conduct does not provide that the effectiveness
of a final written warning depends on the relatedness of the offences. It is
irrelevant for purposes of deciding what penalty is imposed whether or not the
offences are related. What is critical is the employee's conduct in the work
environment. This is what the employer has to consider in the exercise of its
discretion in imposing an appropriate penalty. Any employer is bound to view
previous convictions for misconduct in a negative light and come to the
conclusion that the acts of misconduct go to the root of the employment
contract. For this Court to interfere with the penalty imposed by the employer
in the exercise of its discretion there needs to be proof that the exercise of
the discretion was impeachable based on the principle laid out in Barros v Chimphonda 1999 (1) ZLR 58…, thus:
“It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, if it mistakes the
facts, if it does not take into account some relevant consideration, then its
determination should be reviewed and the appellate court may exercise its own
discretion in substitution…,.”
The respondent did not, either in the internal appeal or in
the court a quo, show that the disciplinary committee had made any error in the
exercise of its discretion. It was not enough to suggest that the final written
warning should not have been taken into account merely on the grounds that it
related to a subsequent breach on the part of the respondent. The disciplinary
committee would have been within its right and entitlement to take the same
into account. To do otherwise would have been a negation of its mandate. The
final written warning was an indicator of the type of employee that the
respondent was. It was a manifestation of his attitude towards his contract of
employment - an absence of diligence. There is no principle that supports the
contention by the respondent that to be relevant a final written warning should
be in respect of an earlier infraction for purposes of arriving at an
appropriate penalty.
In my view, the appeal has merit and must succeed. In the
result the following order is issued:-
1. The appeal is allowed with costs.
2. The judgment of the court a quo is set aside and
substituted with the following:
“The appeal is dismissed with costs.”
