NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY v KUNDEYA & ORS 2016 (2) ZLR 204 (S)

Flynote

Employment: " dismissal " dismissible act of misconduct " employer's discretion as to whether to dismiss " can only be overturned if discretion exercised unreasonably " appeal tribunal having no power to substitute its own discretion

Headnote

The four respondent employees were dismissed by their employer for disobeying a lawful instruction to relocate their workstations around the country. The respondents had been given reasonable notice of their employer's requirement but sought to overturn the dismissal first in an arbitration. Subordination to the employer's lawful orders is a fundamental ingredient of the contract of employment without which it cannot exist. In the arbitration, the dismissal was overturned. The Labour Court agreed with the arbitrator and reinstated the respondents. The decision of the Labour Court was taken on appeal.

Held, that once an employer has established that an employee committed a dismissible act of misconduct, the discretion whether or not to dismiss lies solely with the employer. Generally speaking, it is not for the appellate court, arbitrator or tribunal to substitute its own discretion for that of the employer. The correct test on appeal was whether the disciplinary committee, on the facts before it, had acted unreasonably in ordering dismissal and not whether the mitigating factors outweighed the aggravating factors as postulated by the arbitrator and sustained by the court a quo. Both the arbitrator and the Labour Court fell into error by applying the wrong test. Both the arbitrator and the court a quo, being creatures of statute without inherent jurisdiction, fell into error and misdirected themselves by exercising a non-existent power to substitute their own discretion for that of the employer in the absence of any error or misdirection on the part of the disciplinary committee.