REPORTABLE ZLR (6)

Judgment No. SC 7/06

Civil Appeal No. 348/03

ZIMBABWE ALLOYS LIMITED v AMOS MUCHOHONYI

SUPREME COURT OF ZIMBABWE

CHDYAUSIKU CJ, SANDURA JA & CHEDA JA

HARARE, JANUARY 16 & MARCH 30, 2006

A M Gijima, for the appellant

R T Maganga, for the respondent

SANDURA JA: This appeal arose out of a labour dispute which was decided in favour of the respondent (“Muchohonyi”) by the Labour Court.

The background facts are as follows. At the relevant time Muchohonyi was an employee of the appellant company (“the company”). On a day in April 1999 Muchohonyi was on duty from 3 pm to 10 pm. By 10 pm the employee who was supposed to relieve him had not arrived. Accordingly, the supervisor instructed him to continue working until a replacement was found. After working for another two hours Muchohonyi left without the supervisor’s permission.

Subsequently, Muchohonyi was charged with wilful disobedience to a lawful order given by the employer, in terms of the company’s Code of Conduct (“the Code”).

On 22 April 1999 Muchohonyi appeared before a hearing officer and pleaded guilty to the charge. He had two previous convictions for wilfully disobeying a lawful order given by the company, in respect of which a severe warning was issued to him on 8 January 1999 and a final warning was issued on 5 February 1999. In the circumstances, the hearing officer recommended summary dismissal.

Thereafter, Muchohonyi appealed to the production director in terms of the Code, but the appeal was dismissed and his employment was subsequently terminated on 19 May 1999. In terms of the Code, summary dismissal was the penalty for wilfully disobeying a lawful order given by the employer.

Muchohonyi then appealed to the Labour Relations Tribunal (now the Labour Court), and on 23 October 2003 the Labour Court allowed the appeal and ordered that he be reinstated in his previous position or be paid damages in lieu of reinstatement. Aggrieved by that decision, the company appealed to this Court.

In its notice of appeal the company set out the following grounds of appeal:

“1. The learned President erred in finding that dismissal was not an appropriate penalty in the circumstances.

2. The learned President fell into error by highlighting mitigatory features in favour of the respondent without considering or giving due prominence to aggravating features against him, such as his previous disciplinary record. The respondent had been convicted before of insubordination on two occasions within a space of one month on the 8^th January and 5^th February 1999.

3. It was not proper for the learned President to substitute the penalty of a final written warning in place of a dismissal when at the time of the respondent’s conviction there was another final warning still in force against him.”

Before determining the appeal, I wish to state that the determination of the appropriate penalty was a matter within the discretion of the President of the Labour Court (“the President”), and that this Court does not normally interfere with the exercise of a judicial discretion unless there is a valid basis for doing so. If, for example, the President mistook the facts and did not take into account relevant facts, or if she misdirected herself in the exercise of her discretion, this Court would interfere with her decision.

This point was made by GUBBAY  CJ in Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S). At 62F-63A, the learned CHIEF JUSTICE said:

“The determination of the learned Judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds. See Farmers’ Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. 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, provided always it has the materials for so doing.”

See also Ex parte Neethling and Ors 1951 (4) SA 331 (AD) at 335 A-C.

Applying that principle to the facts of the present case, I am satisfied that there is a valid basis for interfering with the decision of the court a quo. It is quite clear from her judgment that in considering the appropriate penalty the President did not take into account the fact that Muchohonyi had two previous convictions for the same offence. He had been convicted on 8 January 1999 and 5 February 1999. The penalty on the first occasion was a severe warning, and the penalty on the second occasion was a final written warning.

Nowhere in her judgment did the President refer to the two previous convictions. She, however, referred to the mitigatory factors and said the following at p 5 of the cyclostyled judgment:

“The appellant in the present case had concluded his eight hour shift. He had agreed to stay on until a relief was found. He stayed for a further two hours. He then reneged upon this agreement and contrary to the instructions he went home. He says he was tired and hungry. After a total of ten hours at work and during the night, it is human to feel tired and require rest.”

In terms of s 12B(4) of the Labour Act [Chapter 28:01] (“the Act”) the President was obliged to take into account, not only the mitigatory factors but also the aggravating ones, including Muchohonyi’s disciplinary record. The section reads as follows:

“In any proceedings before a labour officer, designated agent or the Labour Court, where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

It is clear from a reading of the judgment of the court a quo that the provisions of s 12B(4) of the Act were not complied with. In particular, the judgment says nothing about the seriousness of the act of misconduct committed by Muchohonyi, and Muchohonyi’s previous disciplinary record.

In my view, had the President considered the aggravating features in this case, and given them due weight, she would not have set aside the penalty of dismissal.

In the first place, it should be appreciated that the offence of wilful disobedience to a lawful order given by the employer is a very serious one. I say so because it undermines the relationship between the employer and the employee, and goes to the very root of the contract of employment.

Consequently, the existence of the mitigating features mentioned by the President in her judgment does not make Muchohonyi’s disobedience any less wilful. This point was made by GUBBAY  JA (as he then was) in Matereke v C.T. Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC). At 212G-213B the learned JUDGE OF APPEAL said:

“The existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful. This proposition is well illustrated by the old English case of Turner v Mason (1845) 14 M & W 112; 153 ER 411, in which a domestic servant – quite deliberately because she had made a request which was rejected – absented herself during a night when she should have been on duty. Her plea of justification was that her mother was desperately ill, though it is not clear that she so informed her employer. She was summarily dismissed and the Court of Exchequer upheld the dismissal. PARKE B remarked that even if the employer had been aware of the cause of her request to absent herself, it would not have been sufficient to justify her disobedience to his order. He went on to say that: ‘there is not any imperative obligation on a daughter to visit her mother under such circumstances, although it may be unkind and uncharitable not to permit her’. The decision was approved of in Bouzourou v The Ottoman Bank [1930] AC 271 (PC).”

In addition to the fact that the act of misconduct in question was a serious one, Muchohonyi had two previous convictions for the same offence. As already stated, on 8 January 1999 he was found guilty of the same offence and a severe warning was issued to him. Shortly thereafter, on 5 February 1999, he was again found guilty of the offence, and a final written warning was issued to him. That final warning meant, and ought to have been understood by Muchohonyi to mean, that if he committed the offence again he would be dismissed.

However, notwithstanding that fact, Muchohonyi committed the offence again in April 1999. In my view, the only appropriate penalty for that offence was dismissal.

In the circumstances, the following order is made –

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and the following is substituted –

“The appeal is dismissed with costs.”

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Danziger & Partners (Gweru), appellant's legal practitioners

Muzenda & Maganga, respondent's legal practitioners