The Herald (Harare)

22 November 2012

Zimbabwe: Company Car Misuse Backfires

column

Misuse of company property has for long resulted in employers and workers being at loggerheads. The main bone of contention has ultimately been what constitutes misuse of company property and what would be the appropriate sentence? Patrick Mashingaidze worked for Zesa Holdings when he was charged with contravening Section 7(1) (d) (iii) of the Zesa Employment Code that is "misusing or making unauthorised use of property belonging to the authority or in its lawful possession."

In particular, it was alleged that Mashingaidze ferried a live beast (cow) in a motor vehicle marked Zesa contrary to his conditions of employment. He pleaded guilty to the charge in question.

As penalty for that offence, the disciplinary committee demoted him from his managerial grade by two grades that was to grade D2, which was a non-managerial grade. Aggrieved by the penalty, Mashingaidze appealed to the Appeals Committee, which went on to reduce the penalty to a demotion by one grade only.

The basis upon which the Appeals Committee interfered with the penalty was that the disciplinary committee had attached too much weight on the issue of tarnishing the image of the company and ended up meting out a harsh penalty. It thus reasoned that, if the disciplinary committee felt strongly about the image of the company, it should have charged Mashingaidze with such a charge as it was provided for in the Code of Conduct.

It is against this background that he appealed to the Labour Court seeking a further reduction of the penalty meted out by the Appeals Committee.

The basic argument that Mashingaidze advanced was the sentiments by the appeals committee of a possibility of a charge directly in line with tarnishing the image of the company, which swayed the disciplinary committee.

He argued that the correct way to address the anomaly was to quash both the conviction and the penalty and remit the matter for a hearing de novo.

On the other hand Zesa argued that there was no misdirection on the part of the Appeals Committee.

In view of Mashingaidze's guilty plea it was not up to the appeals committee to interfere with the verdict returned on that guilty plea.

Alteration of the penalty was well placed as it was within the ambit of penalties that were provided for such infractions. Zesa thus argued that the Appeals Committee correctly exercised its powers. It is common cause that Mashingaidze's guilt was established by his guilty plea, hence nothing turns on that for purposes of judgment. The only triable issue was whether or not the Appeals Committee misdirected itself when it further reduced the penalty imposed by the disciplinary committee.

Mashingaidze in his argument maintained that the Appeals Committee misdirected itself by making a finding that he was charged under the wrong section of the Code of Conduct. A reading of the record of proceedings, however, does not seem to support this position.

What is clear from the record is that the Appeals Committee just observed that the disciplinary committee had paid too much attention to the fact of tarnishing the company's image.

In the Appeals Committee's view, this aspect was one as could have formed a charge on its own as provided for in the Code of Conduct. It concluded that the disciplinary committee had erred on that score. To correct that error, it went on to reduce the penalty to one of demotion by one grade, to D2 grade.

It is pertinent to note that, making an observation and making a finding of fact are clearly distinguishable.

The Appeals Committee's observation was more of obiter dicta as it exercised its mind to decide whether Mashingaidze had been penalised appropriately.

This having been said, it is clear that there was no basis for the Appeals Committee to quash the verdict and penalty and to remit the matter. It was therefore within its power to alter the penalty as it did basing on the reasoning already discussed above.

The case of Standard Chartered Bank Zimbabwe versus Matsika 1997 (2) ZLR 389S cited by Mashingaidze indeed correctly espouses the legal position that, the penalty needs to be consistent with the charge.

In the instant case, the penalty which the Appeals Committee meted out is indeed within the ambit of all permissible penalties for the infraction complained about.

In the result, nothing can be found to be amiss about the conduct of the Appeals Committee in respect of the penalty that it imposed. In the case of ZFC Ltd versus Geza 1998 (1) ZLR 137 S, McNally JA quoting Dumbutshena CJ in Cluff Minerals Exploration Zimbabwe Limited versus Union Carbide Management Services (Private) Limited and Others 1989 (3) ZLR 343 (S) at 344-5 had this to say about exercise of discretion.

" . . . I cannot say that there was no basis upon which the learned judge exercised his discretion. It would not be proper for me to substitute my own discretion for that of the learned judge a quo . . ."

" . . . his decision in that regard being discretionary, can be overturned only where it is grossly unreasonable, capricious or malafides . . ."

It is clear that the manner in which the Appeals Committee exercised its discretion to alter the penalty cannot be faulted. There is no evidence to suggest that the discretion was exercised capriciously, with malafides or in an unreasonable fashion.

In the result, it would be improper for the court to substitute its own discretion by further altering the penalty, which was meted out upon due consideration of all the factors surrounding the case.

Mashingaidze maintained in his heads of arguments that, his mitigation was not well considered and thus implored the court to further reduce his penalty to a reduction of salary by no more than 20 percent for a specified period.

Again, a reading of the record shows that the harshness of the original penalty was noted by the Appeals Committee and to rectify that it went ahead and altered it to be only a demotion to grade D2.

What Mashingaidze was seeking now was to have the court interfere with that penalty again. Since there was no misdirection on the part of the Appeals Committee, there was no justification in further interfering with the penalty imposed by the Appeals Committee.

Mashingaidze's prayer to have a further reduction of the penalty was likened by Zesa to a request to have the court grant him a penalty of his choice.

Zesa is reasoning that in this respect cannot be faulted when viewed from the perspective that the appeals committee got seized with the matter and made a reduction of the original penalty. Whilst it is acceptable that it is the prerogative of an aggrieved party to exhaust all channels available to him, it would be an abuse of the process if such were done as a game of chance.

Labour Court president Ms Lillian Kudya found no merit in Mashingaidze's appeal and dismissed it with costs.

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