Court name
Supreme Court of Zimbabwe
Case number
SC 7 of 2006
Civil Appeal 348 of 2003

Zimbabwe Alloys Ltd. v Muchohonyi (48/03) (SC 7 of 2006, Civil Appeal 348 of 2003) [2006] ZWSC 7 (29 March 2006);

Law report citations
Media neutral citation
[2006] ZWSC 7













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
8th January and 5th 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