GWAUNZA
JA. This is an appeal against
the whole judgment of the Labour Court handed down at Harare on 30 August
2013.
The facts of the matter
are as follows:
The respondent is a
company engaged in farming operations on a number of its plantations and estates
in the Manicaland Province. The appellant
joined the employ of the respondent in 1997 as an Estates Coffee Manager based
at New Year's Gift. Early in 2000, he
was offered and took up the position of Agricultural Manager. All estate
managers were now reporting to the appellant. In 2007 the appellant became
General Manager Agriculture and subsequently in 2010, he was appointed Director.
Sometime in 2011 the appellant
was charged with contravening sections of the respondent's Employment Code of
Conduct (hereinafter called “the Code”). In particular, he was charged with
gross incompetence and negligence in the performance of his work, and violating
the respondent's Anti-Sexual Harassment policy. In the latter respect
the appellant was accused of having improper relations with two junior members
of staff. It seems however, that the sexual misconduct charges were pursued
only in relation to one of the two junior members of staff.
In October 2011, the
appellant was notified of disciplinary proceedings set to be conducted against
him. The disciplinary hearing
subsequently took place at New Year's Gift estate. After the hearing on 22
November 2011, the respondent wrote to the appellant notifying him of his dismissal
from duty following his being found guilty of breaching the relevant sections
of the Code. The appellant appealed internally but unsuccessfully against the
decision of the Disciplinary Committee. Aggrieved by that decision, he filed an
appeal with the Labour Court. The appeal before the Labour Court was
essentially on two grounds:
i) that
the charges in respect of sexual misconduct and
failure to graft the macadamia seedlings had prescribed; and,
ii) that
the charges in any case lacked sufficient evidence and were therefore not
proved.
The Labour Court having dismissed
the appeal, the appellant has now appealed to this Court against its judgment.
The grounds of appeal
raise the following issues:
1.
Whether or not the hearing and appeal tribunals
were properly or improperly constituted thus technically rendering their decision
to dismiss the appellant nugatory;
2.
Whether or not the allegations against the
appellant at the commencement of the disciplinary proceedings had prescribed;
3.
Whether or not the appellant's failure to
graft the macadamia seedlings amounted to gross negligence in the performance
of his duties, as alleged; and
4. Whether or not the alleged sexual
relationship between the appellant and one junior staff member was proved;
5. Whether
or not in light of the above issues, the penalty of dismissal against the
appellant was justified.
I will consider each of
these issues in the order indicated.
1.
Constitution
of the Disciplinary Committee
The appellant alleges
that the Disciplinary Committee that found him guilty and imposed the penalty
of dismissal was not properly constituted as set out in respondent's employment
code of conduct. This was because it did not include a “fellow employee” of the
appellant.
Paragraph 4.5 of the respondent's Code provides
for the composition of its Disciplinary Committee, in part as follows:
“4.6 Employee
Representation
4.6.1 …
4.6.2
Managerial employees shall
be represented by one fellow employee, or one Managerial Employees' Committee member
of their choice.” (my emphasis)
It is common cause that the
appellant was a managerial employee. He submits firstly that the issue was not
raised in the court a quo and
secondly that it was being and could, properly be raised for the first time on
appeal.
Before addressing the
appellant's contention in this respect, I find it necessary to consider some
salient facts germane to this issue.
Firstly, there is no
evidence to suggest that the appellant “chose” a fellow employee to represent
him at the disciplinary hearing, nor that he presented such person to the
committee and was turned down. Secondly and more to the point, there is no
evidence to suggest that he challenged the absence of such a fellow employee at
the commencement of the very lengthy disciplinary proceedings. The appellant's
counsel effectively confirmed this fact as is evidenced by this exchange during
the proceedings in the court a quo;
MR KUHUNI: The disciplinary committee was not
properly constituted
COURT: That
should have been raised at the hearing, you were involved at the hearing, why
did you not challenge the composition at that stage? Why wait to do it on
appeal?
MR KUHUNI: No answer
The record shows that Mr Kuhuni then proceeded to address the
court on a completely different aspect of the case. This in my view suggests,
and the court a quo must have taken
it to be the case, that Mr Kuhuni for
the appellant decided to abandon the argument relating to the constitution of
the disciplinary committee. It is pertinent to note that there is also no
indication in the appellant's heads of argument in the court a quo, that this matter was raised.
Given this background I
do not find it to be a correct representation of the facts by the appellant,
that the point concerning the proper constitution of the Disciplinary Committee
was not raised in the court a quo.
The matter was clearly not only raised, it was also, in my view, effectively
abandoned after the court a quo
queried the appellant's failure to challenge the constitution of the
disciplinary committee at the commencement of the proceedings. In its judgment
the court a quo made no determination
on this issue, in my view correctly so, since no argument was advanced to
enable it to do so. The appellant does not argue before this Court that the
court a quo was mistaken in taking
this stance. He bases this ground of appeal on the false premise that the point
is being raised for the first time on appeal. This I find to be a submission
that is both misplaced and unsustainable. A party cannot abandon an argument,
or like in this case, a ground of appeal, in a lower court and hope to validly
resuscitate the same ground on appeal to a superior court.
For these reasons I find
that there is no merit in the first issue raised by the appellant, and the
ground of appeal related to it is accordingly dismissed.
2.
Prescription
2.1
Re: Grafting of the macadamia
seedlings
It is common cause that
the respondent bought macadamia seedlings from one Mr Scott (“Scott”) and that
the seedlings, which fell under the authority of the appellant, were planted in
2007. Scott's evidence that he expressly told the appellant that the macadamia
seedlings were supposed to be grafted before being planted, is also not
disputed.
The appellant did not
graft the seedlings. Subsequent inspections of the macadamia plantation
revealed that over 35ha thereof exhibited a poor crop. The respondent consequently
around August/September 2010, engaged two consultants to do a comprehensive
assessment of the crop and submit a report to the Chief Executive officer. The evidence on record suggests that it takes
some 5 years for a macadamia crop to reach maturity. The assessment revealed
that the seedlings had not been grafted before planting, a circumstance that
was said to be largely responsible for the poor state of the macadamia crop. This
fact was then communicated to the respondents, who as a result laid the charges
of misconduct referred to, against the appellant. This was in October 2011. The
consequent disciplinary proceedings were held from 26 to 28 October, 2011.
Based on the period
between the planting of the macadamia seedlings in 2007, and the bringing of misconduct
charges related to it (in October 2011), the appellant contends that the
charges were prescribed. The court a quo was
not persuaded and found against the appellant on this point. The learned judge
opined as follows on page 5 of her judgment:
“...the evidence
on record clearly shows that Tanganda Tea Company became aware of the
Appellant's gross negligence in relation to agricultural activities at the
estates in 2010, after it had engaged
consultants, and not earlier.”
The appellant charges
that this factual conclusion by the court a
quo was so “irrational” as to amount to a misdirection at law.
I am not persuaded there
is merit in this argument.
The respondent averred
that the first consultant, James Wessels ('Wessels'), detected signs of bad management of the macadamia crop and its
resultant poor condition. However, it was only after reports were submitted by
the second consultant, Timothy Fennel ('Fennel') following his closer analysis
of the crop situation, that the “true cause” of this poor state of affairs was
disclosed to the respondent. This was towards the end of 2010. Prior to this,
the various other persons that the appellant alleged must have been, or were
aware of, the poor state of the crop, and the main causes thereof, could not
have appreciated that part of the problem arose from the fact that the
seedlings had not been grafted before planting.
It is not disputed that
the charges of gross negligence in the performance of his work were not
restricted to the issue of the grafting of the macadamia seedlings but went
beyond this, to encompass the appellant's management of the whole estate. The
record, however makes it clear that the issue of the Macadamia seedlings stood
out among the various other factors alleged to have resulted in the crop
exhibiting signs of failure to thrive.
There seems to be nothing
on the record to suggest that while some of the respondent's senior officials
may have been made aware of the challenges faced by the appellant generally in
managing the macadamia plantation, their attention was also drawn specifically
to both the failure by the appellant to graft the seedlings before planting, and
the causes thereof.
Nor does the appellant state that the officials whom he named, had the capacity
or obligation to submit reports to the respondent's Chief Executive Officer in
Harare. It is in light of this latter point, that the court a quo stated as follows on page 3 of its
judgment:
“The appellant
sought to rely on the challenges of finance and labour during the relevant
period. This did not assist him much because there is no evidence on record to
suggest that he brought the challenges on macadamias (sic) to the attention of his superiors in Harare …. It took outside
consultants for Tanganda Tea Company to know the situation concerning the
macadamias (sic) ….”
Against this background I
do not find any fault with the Labour Court's factual finding that the
respondent only became aware of the appellant's failure to graft the seedlings
in question before planting them, in the latter part of 2010. The finding is in
my view fully supported by the evidence on record. It therefore cannot be said
to be irrational, nor “so outrageous in its defiance of logic”
that no sensible person could have arrived at the same decision. The question
of prescription in relation to this issue must therefore, be determined on this
basis.
In terms of ss 16 (1) and
(3) of the Prescription Act [Chapter 8:11] prescription shall commence to run as soon as a debt is due.
Moreover, a debt shall not be deemed to be due until the creditor becomes aware
of the identity of the debtor and of the facts from which the debt arises: provided
that a creditor shall be deemed to have become aware of such identity and
of such facts if he could have acquired knowledge thereof by exercising
reasonable care.
The relevant charges
against the appellant were preferred against him in October 2011. I have
determined that the respondent became aware of the appellant's failure to graft
the macadamia seedlings earlier, in the latter part of 2010 when the
consultant's report was released to the appellant's superiors in Harare.
However, it is important to determine whether the respondents could have,
through the exercise of reasonable care, acquired this knowledge before that
time.
In this connection, I
find the following excerpt from the book “Extinctive Prescription” by the South
African author MM Loubster, to be a useful guide given the
circumstances of this case:
“It is suggested
that the following factors will be relevant to determine whether the creditor
has reasonably endeavoured to acquire the requisite knowledge: the physical and
mental capacity of the creditor to acquire knowledge; the opportunity to
acquire knowledge from sources open to investigation; whether the creditor
already knew facts which would have caused an ordinary, prudent person to
investigate further; and the nature of the relationship between creditor and
debtor …. It appears that reasonable care for purposes of (the equivalent
section to our Prescription Act) is not measured by the objective standard of
the hypothetical reasonable or prudent person, but rather by the more
subjective standard of a reasonable person with the creditor's characteristics.”
It is contended for the
appellant, in his heads of argument, that the finding of the court a quo that his superiors in “far away”
Harare had not been shown to have known about the appellant's conduct, gave the
'unfortunate' impression that he presided over 'an isolated Kingdom' at the
estate in Chipinge. The appellant avers that a certain Mr Lightfoot ('Lightfoot'),
to whom he reported from about 2000 to 2007 was resident in Chipinge. Further,
that the Managing Director, a Mr Andrew Mills ('Mills'), though staying in Harare had in September 2008, expressed
himself 'very strongly' against his subordinate, Mr Craig's ('Craig') negative attitude to his responsibilities.
On this basis, and without indicating what relevance Craig's attitude to his work, had on the charges he (appellant)
was facing, he argues that it is not true that his superiors in Harare would
not have known about the facts upon which the misconduct charges in question
were based.
It is evident from these
averments that the appellant does not indicate whether Lightfoot and Mills had
specific knowledge relating to his failure to graft the macadamia seedlings.
Nor does he give any cogent basis for the belief that the two conveyed such
knowledge to the relevant superior authorities in Harare. When the excerpt
cited above is applied to the circumstances of this case, it cannot, in my
view, be said that the appellant has established that the 'creditor' in casu, that is, his relevant superiors
in Harare;
i) had the
capacity and opportunity to acquire the requisite
knowledge from sources 'open to investigation'; or
ii) already
knew facts which would have caused an ordinary, prudent person to investigate
further:
In the result I find that the appellant
failed to show that the respondents knew, or should have known, of the alleged
gross incompetence in the performance of his duties, before 2010. I find that accordingly the court a quo correctly determined that
prescription in relation to the charge of gross incompetence only started to
run from around October 2010.
2.2
Sexual Misconduct
The parties' submissions
on prescription in relation to the charge of sexual misconduct are essentially
the same as those tendered in respect of the gross incompetence charges.
There are however a few
considerations that are peculiar to the sexual misconduct charges.
The improper relationship
between the appellant and a certain Eulater Makuyana ('Eulater') allegedly took place from 2003 to
2006. It is the respondent's submission, based on evidence that is on record, that its attention was
drawn to this relationship in August 2011. The appellant disputes this and
submits that the respondent 'must have known' about the allegation as way back
as 2009. He relies on two circumstances to buttress this assertion:
i) the evidence of the said Eulater that
most of the people in Ratelshoek (the area where the estate was located) were
aware of their love affair, and
ii) that Lightfoot, who was his superior at the time was based
in the Chipinge area and knew about the love affair between Eulater and Craig, who was the respondent's subordinate, and allegedly his rival in Eulater's
affections.
The court a quo assessed this evidence and stated as
follows at page 5 of its judgment:
“The appellant
sought to rely on the evidence of Eulater's lost diary and rumours around the
estates. As previously stated, even if there were rumours around the estates,
there is still no evidence in the record which shows that the appellant's
superiors in Harare got to know what
the appellant, who was the Chief boss (sic)
at the estates, was up to in faraway Chipinge. The courts work on evidence, not rumours or conjecture and
indeed the applicant did not point the court to any evidence that his
misdemeanours with staff on the estates had reached his boss' ears in Harare”
(my emphasis)
I find the reasoning of
the court a quo on this point to be eminently sound. It is one thing
to be expected to know of something and quite another to actually know of it. In
any case I doubt one would expect the appellant's superiors in Harare to have
had both the reason and opportunity to make it their business to follow up on
stories that may have been doing the rounds concerning improper relationships
between senior and junior staff on its estates. This is particularly so in view
of Eulater's evidence in cross examination during the disciplinary hearing,
that she and the Appellant took every effort to keep their relationship secret.
As for Lightfoot, the
appellant does not state how his knowledge in 2009 of an alleged love affair
between Craig and the said Eulater,
could have had a bearing on the specific charge that he himself faced with
regard to Eulater. More significantly, he does not state why Lightfoot would have been expected to
report such a matter to the superiors in Harare, nor whether he, in reality did
so.
In view of the foregoing, I am satisfied, as I
was with respect to the charge of gross incompetence and negligence and on the
same basis, that the appellant has failed to show that the respondent had
knowledge of the alleged sexual relationship between him and Eulater earlier than 2011, nor that they could
have acquired such knowledge through the exercise of due diligence.
Flowing from this, I find
that the charges brought against the appellant had not prescribed at the time
disciplinary proceedings against him commenced.
3. Did the appellant's failure to graft the
macadamia seedlings amount to gross negligence in the performance of his
duties?
I consider it pertinent
to prefix this part of the judgment, and the next, with the observation that
the disciplinary proceedings conducted against the appellant had all the
hallmarks of a fully-fledged trial. Looking at the detailed record of
proceedings, one gets the impression that all issues were fully ventilated and
argued. Each party was legally represented and was able to call its own
witnesses. These were put through comprehensive examination-in-chief,
cross-examination and re-examination. Written submissions before and after the
hearing, were also filed.
Against this background,
it is the respondent's argument that it proved a case of gross negligence and
incompetence in fulfilling his duties, on the part of the appellant. This,
according to the respondent, was in large part attributable to his failure to
graft the macadamia seedlings before planting them. The respondent further
charges that this circumstance resulted in it suffering huge financial loss.
Lastly, that this misconduct merited the penalty of dismissal.
The appellant does not
deny that he failed to graft the seedlings as alleged nor that the seller of
such seedlings, Scott, had advised him to do so before planting them. He blamed his failure to graft the macadamia
seedlings on the fact that at the time that they were supposed to be grafted,
the estates were beset with economic and other hardships leading to inadequate operational
funds, unavailability of the necessary grafting tools and shortages of labour. The
respondent also sought to elicit evidence from his witness Mr PFW Lee ('Lee'), to the effect that the failure of
ungrafted seedlings to thrive was attributable not only to that circumstance,
but to other factors as well. He also sought, in my view unsuccessfully, to contrast
the expert opinion of Lee with that
of the two consultants engaged by the respondent. The consultants, Fennel and
Wessels, gave evidence for the respondent
on the effect of not grafting macadamia seedlings before they are planted.
As correctly argued for
the respondent, while the experts' opinions varied from the categorical to the
almost ambivalent depending on the side for which they were proffered, all
experts seemed to agree that decidedly, there were disadvantages to not
grafting the seedlings in the manner advised.
To illustrate this point, Fennel stated that it was 'common
knowledge' that one cannot plant ungrafted macadamia seedlings. He
estimated that between 35 and 40ha of the plantation in question had 'no
future'. Wessels, the other
consultant, estimated that about US$300 000.00 of revenue was lost and that
this was largely due to the non-grafting of the macadamia seedlings. He added
that only 20 per cent of the entire macadamia field was expected to bear fruit. Contrasted with this was Lee's evidence to the
effect that given all the problems observed, the crop that he saw was 'surprisingly
good' despite its ungrafted state. However, as the court a quo noted, Lee's other
comments on the value of grafting seedlings appeared to take the appellant's
case a step or two back. The court noted in relation to his evidence:
“Even his own
witness, Mr PFW Lee on page 1994 of
the disciplinary record (sic),
confirms the appellant's gross negligence when he says the 'orchard that we
visited wasn't receiving full irrigation. The trees had been stressed because
they lacked water.' On page 194 he also confirms the importance of grafting
seedlings, when he says as a consultant, he would not recommend that commercial
growers use the ungrafted method. So even from the evidence of (the)
appellant's own witness, the gross negligence on the issue of macadamias comes
out.”
Added to this, and as
correctly noted in the respondent's heads of argument, Lee went further to state that the effect of not grafting
seedlings would be that:
“You will have a
situation where some trees will produce good fruit while others produce low
fruit. Overally you will have an average yield…”
The upshot of the
foregoing is, in my view, to put it beyond doubt that the failure by the
appellant to graft the seedlings in question substantially eroded the quality
of the product from the crop. I find that in this respect, the appellant
compounded his default by:
i) dis-regarding
the advice from the seller of the seedlings, that he should first graft them
before planting; and
ii) having
faced challenges in carrying out the task, failing to draw his superiors'
attention to the problem before proceeding to plant.
There is, in addition,
nothing on the record to suggest that the appellant disputed that the harvest
from the crop in question was seriously compromised. He does not seem to
dispute the loss said to have been suffered as a result of the failure to graft
the seed, estimated at some 35ha and worth over USD300 000.
I find, in the result,
that the alleged gross negligence and incompetence in his work, was
sufficiently proved against the appellant. In short the appellant was properly
found guilty of the misconduct of gross negligence, defined as follows in the
respondent's code of contact:
12.17 Gross Negligence
An employee is
grossly negligent if he/she fails to exercise proper care in the discharge of
his/her duties resulting in loss of life, or serious damage or loss of company
property
4. Whether the alleged sexual relationship
between the appellant and Eulater, was proved.
The appellant alleges
that the court a quo made an
irrational finding that the respondent had proved the violation by him of the
anti-harassment and discrimination policy.
The
appellant was charged in terms of the respondent's code of conduct, under the
banner of “An inconsistent Act, Conduct
or Omission.” The specific offence
of which he was accused was conducting an improper sexual relationship with a
junior member of staff, one Eulater Makuyana sometime between 2003 and 2006.
This was contrary to the respondent's anti-harassment and discrimination policy
(sexual misconduct), which in relevant part reads as follows:
“9.
Sexual Misconduct
Sexual misconduct
applies where both parties are consenting, but the relationship is likely to
jeopardise the smooth operation of the work place ….
Sexual misconduct
towards subordinates in the workplace raises serious questions regarding the
ability to provide a healthy, safe and harassment-free work atmosphere,
especially on the estates, where access to residences is easy …”.
The relevant provision of
the respondent's code reads:
12.20
Inconsistent Act, Conduct or Omission
An employee
commits a gross offence if he/she does any act, conduct or omission, which is
inconsistent with the fulfilment of the express or implied conditions of his/her
contract of employment.
At the disciplinary
hearing, and regarding this charge, the respondent called as its witnesses the
said Eulater, the appellant's former
cook, Irene Sithole, and
the appellant's alleged love rival, Craig.
Eulater went into great detail in both her evidence in chief and under cross
examination, regarding when the relationship started, where it was conducted,
how long it lasted, the care taken by both parties to keep it secret and how it
all ended.
The appellant's defence
was to deny that such a relationship ever existed between him and Eulater. It was in light of this that the court
a quo in its judgment after analysing
the evidence of the three witnesses had this to say:
“Eulater's
evidence was corroborated by her next boyfriend, Brian Craig, who got to know
about the relationship when he started his own relationship with Eulater … and asked her to choose between him
and the appellant …. Eulater's evidence was also corroborated by the
appellant's cook, Irene Sithole. The
court agrees with the hearing officer's finding that Eulater was a credible
witness. The sum total of the evidence of Eulater, Craig and Irene shows that
the relationship between Eulater and the appellant must have existed for them
to talk about it because they gave their evidence long after the relationship
had terminated. Why then would all three corroborate (sic) on the existence of this relationship between 2003 and 2006?
If their evidence was a fabrication, why would they confirm the expiration of
the relationship and not allege that it was in existence up to the time of
Eulater's resignation? ... Because of
the above reasons, this court is convinced that both the Disciplinary Committee
and the appeal hearing officer were correct in accepting the corroborated
evidence of Eulater on the
relationship with the appellant as truthful”
I can find no fault with the reasoning
and conclusion of the court a quo on
this point.
The appellant challenges
the finding of the court a quo that
the evidence of Eulater was
corroborated by that of Irene Sithole. It is contended as follows in his heads
of argument:
“With respect,
Irene Sithole did not corroborate Ms Makuyana's evidence as the Labour Court
found. At best, Irene Sithole's evidence merely lent consistence to Ms
Makuyana. No more.”
My understanding of this
averment suggests that while according to the appellant, Eulater lied about the
existence of the relationship in question, she was consistent in such a lie,
and Irene Sithole's evidence did no more than 'lent consistence' to the lie. I
find it difficult to follow this reasoning. Even if it were to be accepted that
Irene Sithole sought to corroborate false evidence by Eulater, the appellant has not offered any
explanation as to what the motivation would have been for Irene Sithole to act
in that manner.
A reading of the record
shows that Irene Sithole gave what could be termed eye witness evidence, to the
effect that over a period of several years while she worked as the appellant's
cook, she saw Eulater come often to his house, and always after dark. She would
talk to Eulater among other things, about the reason for her visits, which
always took place in the absence of the appellant's wife. Irene Sithole would
then go to her cottage to retire for the night, leaving the two of them in the
house. She told the disciplinary hearing that she never witnessed Eulater leave
the appellant's house, nor could she say what time she did so, since she would
be out of sight.
I am not persuaded by the
appellant's contention that even though Eulater said she and the appellant
conducted their relationship at his house, at night and in the absence of his
wife, this evidence was not corroborated by that of Irene Sithole. It is a
contention that I find has no merit.
The appellant also
disputes that the evidence of Eulater on
her relationship with him was corroborated by Craig. In his heads of argument the appellant disputes the
respondent's averment that Craig was forced to resign by the appellant “in
furtherance of his fight over Ms Makuyana's attention ….” He attributes such
resignation to other factors extraneous to the alleged sexual relationship
between him and Eulater. However, the appellant does not, as one might have
expected, challenge Craig's evidence as to the events that he observed which
proved to him that Eulater and the appellant continued with their relationship
even after she told him (Craig) that she was choosing him over the appellant.
That evidence remains unchallenged and serves to discredit the appellant's
contention that it did not corroborate Eulater's evidence regarding their sexual relationship.
Thus when all is told, I
find that Eulater's evidence on the existence of the relationship in question
was sufficiently corroborated by that of Irene Sithole and Brian Craig.
The appellant further
challenges the Labour Court's endorsement of the disciplinary hearing's
positive findings on the credibility of Eulater as a witness. It is stated as follows in paragraph 5.1 of
appellant's grounds of appeal,
“The hearing
officer did not address the credibility of Eulater Makuyana at all, contrary to
the comments of the appeals officer in this regard.”
A perusal of the appeal
hearing officer's decision suggests that the appellant either misread, or did
not read, that decision, whose paragraph 4 reads:
“4.
The designated hearing official who had the opportunity to observe witnesses
giving evidence and to assess their demeanour found Eulater Makuyana to have
given evidence in a credible manner and believed her evidence. I cannot
interfere with his findings. He also found Irene Sithole and Brian Craig who corroborated the evidence of Eulater Makuyana to have been credible witnesses.”
The correctness of this
statement is beyond doubt. It is trite that an appeal tribunal should be and
generally is, reluctant to interfere with a trial tribunal's findings on the
credibility of witnesses who give viva
voce evidence before it. The reasons for this are aptly articulated by the
appeal hearing officer in the words cited above and merit no further comment.
It is in my view
necessary to highlight the fact that the disciplinary proceedings in casu, while having been conducted in
a manner akin to a fully defended trial before a court of law, did not
constitute a criminal trial. The appellant was not an accused person facing
trial for a criminal offence before a magistrate or judge. Labour matters being
civil in nature, all that had to be proved in
casu was whether or not, on a balance of probabilities, the
respondent had proved the charges in question, against the appellant. I have
found that the respondent did so.
I find when all is told,
that it is difficult to fault the judgment of the court a quo to the effect that the appellant was properly found guilty in
relation to the offence of sexual misconduct.
5.
Penalty
It is the appellant's
contention that the decision to dismiss him was irrational and contrary to the
provisions of the respondent's Code of Conduct. I do not find that this
assertion is supported by the Code in question. The offences of 'Gross Negligence' and of “An inconsistent
Act, Conduct or Omission are listed in Schedule IV of the respondent's Code of
Conduct. The section is entitled “GROSS
OFFENCES: (DISMISSAL)”. As is evident, the offences attract the penalty of
dismissal. Given this circumstance there can be no doubt that the respondent
imposed a penalty consistent with what its code stipulates.
The position is settled,
that where an employer takes a serious view of misconduct committed by an
employee and in its discretion, imposes a penalty of dismissal, the appeal
court will generally not interfere with the exercise of such discretion in the
absence of demonstrated unreasonableness or gross irrationality. This position was
articulated in the case of Mashonaland
Turf Club v Mutangadura SC 5/12 where
ZIYAMBI JA held as follows:
“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.”
I have already determined
that the appellant, who held the most senior position on the estates in
question, was in the circumstances of this case, properly found guilty of the
misconduct charges that he faced. That being the case I am not persuaded there
was any misdirection or unreasonableness in the exercise of the respondent's
discretion in imposing the penalty of dismissal.
6.
DISPOSITION
I find, in the final
analysis, that this appeal lacks merit and ought to be dismissed. Costs will
follow the cause.
Accordingly, it is
ordered as follows:
The
appeal be and is hereby dismissed with costs.
ZIYAMBI
JA, I agree
PATEL
JA, I
agree
C.
Kuhuni Attorneys, appellant's legal practitioners
Scanlen and Holderness, respondent's legal practitioners
