The ManicaPost
Trust Maanda
Legal Position
IN terms of the law, employers are entitled to impose sentences on employees found guilty of a disciplinary offence.
Depending on the applicable Code of Conduct, the employer should impose a penalty stipulated in that code.
Usually, codes of conduct categorise offences in terms of their gravity and severity of the penalties. The penalties differ from one category of offence to another.
Where the employer imposes a sentence, courts do not normally interfere with the sentence unless they find that the employer did not properly exercise its discretion in the imposition of the penalty.
The court asks itself the question whether the employer properly used its discretion, for example, when it dismissed the employee.
An appellate court must be very slow to interfere with the employer’s discretion in imposing a sentence of dismissal.
It is in very rare circumstances that an appellate court interferes with that discretion.
The decision to interfere with the employer’s discretion in the penalty it imposes must be properly justified by the peculiar circumstances of each case.
The principle for interference with a discretion of the adjudicating body whose judgment is under scrutiny on appeal has been succinctly put as follows in the case of Barros v Chimphonda. 1999 (1) ZLR 58 at p. 62 6; “It is not enough that the Appellate Court thinks that it would have taken a different course from that of the trial court. 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 considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution.”
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 unless there is a demonstrated unreasonableness or gross irrationally on the part of the penalty imposed.
The discretion of the employer must be respected.
The appellate court cannot just decide to substitute its own discretion merely because it holds a different view from that of the employer.
The penalty must be shown to be tainted with unreasonableness or gross irrationality in the decision to dismiss the employee.
Where an employee is in a position of trust which he or she breaches by committing the act of misconduct which the employer considers has gone to the root of the contract of employment thereby warranting dismissal, the employer is entitled to dismiss that person.
In Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S), the court applied the common law principle that an employer has a right to dismiss an employee following conviction for misconduct of a material nature and going to the root of the employment relationship.
The law is now settled that in circumstances where an employer takes a serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct.
That common law position is available if the employer considers the conduct of the employee to be so serious as to shake the very foundation of their employer and employee relationship.
In Platinum Mines (Pvt) Ltd v Godide SC 2/16 the court held that the right to dismiss is available at common law and that such right is entrenched.
The employer at its election may decide, in the exercise of its discretion, to impose a lesser penalty than dismissal.
Because the issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of the employer’s discretion, an appeal court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised.
The penalty imposed must show a serious misdirection to justify interference by the appeal court.
There is need for proof that the penalty imposed by the employer in the exercise of its discretion was impeachable
Therefore, an aggrieved employee seeks to have the penalty imposed by the employer set aside on appeal, his ground of appeal must be couched in a way that shows an attack on the exercise of discretion by the employer.
The employee must allege that the employer failed to properly exercise its discretion when it imposed the penalty on him or her.
It is a requirement of law that the exercise of discretion on the imposition of the penalty be clearly attacked and be shown to been improperly exercised.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected].
