DISTRIBUTABLE
(16)
Judgment
No. SC 21/05
Civil
Appeal No. 270/03
FUNGAI
GWANGWARA KHUMALO v ZIBAGWE RURAL DISTRICT COUNCIL
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & GWAUNZA JA
HARARE,
MARCH 24, 2005
W
J Mutezo, for the
appellant
E
T Matinenga, for the
respondent
GWAUNZA
JA: After hearing argument in this matter, we dismissed the appeal
with costs and indicated that the reasons would follow.
These are
the reasons:
The respondent applied to the
Labour Relations Officer for authority to dismiss the appellant from
its employ, in terms of the Labour
Relations (General Conditions of
Employment) (Termination of Employment) Regulations 1985. The
application was turned down. On
appeal to the Senior Labour
Relations Officer, the decision to reinstate the appellant was
upheld, even though the Labour Relations
Officer found that the
appellant was guilty of the act of misconduct in question. His
reason for dismissing the respondents
application to dismiss the
appellant was that there were mitigating circumstances like the
appellants long service with
the respondent, the fact that no
financial prejudice had been suffered by the respondent and the
appellants belief that she was
being victimised because she was a
war veteran.
The learned President of the
Labour Court, who heard the respondents appeal, set aside the
Senior Labour Relations Officers
order for the reinstatement of
the appellant and granted the respondent authority to dismiss her.
The reasons for the decision
of the court a
quo are set out in the
following passage from its judgment:
I
agree with appellants
submission that upon finding the respondent guilty of the acts of
misconduct, the Senior Labour Relations Officer ought to have
given
permission for the dismissal of the respondent. The regulations
under which the application was made do not give room for
mitigation.
Once the offence is proved to the satisfaction of the Labour
Officer, the Labour Officer is duty bound to grant the
authority to
dismiss. He has no discretion to act otherwise. This position was
clearly established in the case of Masiyiwa
v T.M. Supermarkets
1990 (1) ZLR 166 (SC) where at p 170 paragraph H it was stated:
Thus, in the case of s 3(2),
the Labour Relations Officer has to determine whether the grounds of
suspension are proved or not proved.
If they are proved, he must
proceed in terms of sub paragraph (a); if they are not proved, he
must proceed in terms of sub paragraph
(b). To put it another way,
he has a choice, but
that choice is governed not by his
discretion,
but by his finding. If he finds the grounds proved, he must choose
(a) if not proved, (b). (underlining for emphasis).
Section 3(2) reads Upon
application being made in terms of subsection (1) the Labour
Relations Officer shall investigate the matter
and may according to
the circumstance(s) of the case
(a) Serve a determination or
order
terminating his contract of employment if the grounds for
his suspension are proved to the
satisfaction of the Labour Relations
Officer; or
(b) Serve a determination or
order on the employer concerned to remove the suspension of the
employee and to reinstate such employee
if the grounds
are not
proved.
In the
circumstances the Senior Labour Relations Officer misdirected himself
by ordering reinstatement where the grounds for suspension
had been
proved to his satisfaction.
This reasoning in my view is
sound and unassailable. The decision of the court a
quo can therefore not
be interfered with.
The appellant sought before
this Court, to argue that the court a
quo should have found
as a condition precedent that the evidence before it did not
support a finding that the grounds for suspending
the appellant had
been substantiated. This argument is clearly misplaced. The
Labour Court sat to hear the appeal filed by the
respondent in casu.
The appellant, who was the respondent then, had not filed a cross
appeal to protest against the finding of the Senior Labour Relations
Officer that she was guilty of the act of misconduct with which she
was charged. There was therefore no cause for the Labour Court
to
consider, much less determine, a matter that had not been placed
before it. The appellant, by raising this matter at this late
stage, is clearly clutching at straws.
In
all the circumstances therefore, and for the reasons outlined above,
we found no merit in the appeal, and dismissed it.
SANDURA JA: I agree.
ZIYAMBI JA: I agree.
Mutezo & Company,
appellants legal practitioners
Wilmot
& Bennet,
respondent's legal practitioners