Aaron Fero v Pan African Mining

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 SEPTEMBER, 2024 & 10
JUDGMENT NO. LC/H/44/25 CASE NO. LC/H/166/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 SEPTEMBER, 2024 & 10

FEBRUARY 2025

AARON FERO

Versus

PAN AFRICAN MINING

Before the Honourable Kudya J;

JUDGMENT NO. LC/H/44/25 CASE NO. LC/H/166/24

APPELLANT

RESPONDENT

For the Appellant	- W. K Kamusasa Legal Practitioner

For the Respondent	- H. Chiswa	Human Resources Officer

KUDYA J:

This is an appeal against the decision of the Designated Authority (DA Mutezo) who upheld the guilty verdict and dismissal penalty meted out on appellant employee following allegations of gross incompetency or inefficiency in the performance of his duties in contravention of the respondent code of conduct.

Background to the matter is that appellant employee who was in the respondent’s employment as a mill attendant was charged with misconduct following the events narrated below. On 16 December 2023 appellant was instructed by his supervisor to remove bail liners and thereafter knock off work. He acted as instructed and then went away. It was discovered that at the relevant period gold ore was being stolen thus subjecting the employer to huge pecuniary losses.

On account of the thefts it was concluded by the employer that appellant’s conduct exposed it to thefts. It thus caused him to be charged with gross inefficiency or incompetency in carrying out his work. The hearing committee found him guilty as charged and penalised him with dismissal. He appealed to the DA without success hence the instant appeal to the Labour Court.

His appeal grounds can be summarised as follows: -

DA was wrong to uphold the guilty verdict on gross incompetency or inefficiency yet appellant did his duty well.

DA erred to uphold the conviction yet (a) He did not appreciate that there was uncontested evidence that appellant did his duty well (b) There was no evidence on record that appellant deviated from his usual duty (c) There was no appellant job description to say that appellant was duty bound to safeguard gold ore.

The DA erroneously upheld the conclusion that appellant violated an instruction not to leave the ore unattended on that day. Such a finding was not supported by evidence or record.

The DA was wrong to accept that the employee had to prove his innocence.

The DA was wrong to uphold an unduly harsh penalty.

The DA erred by concluding that dismissal had been effected as per the law and could not be termed unfair.

In the result the appellant prayed that the appeal be allowed with costs; that the DA’s determination be set aside and be substituted by an order finding appellant not guilty and acquitting him, also that appellant be reinstatement to his job without loss of salary and benefits from the date of his dismissal or that he be paid damages in lieu of reinstatement if reinstatement is no longer plausible.

In response to the appeal the respondent employer maintained in summary the following;

DA correctly upheld the guilty verdict which was in tandem with the Code of conduct. The offence was proven on a balance of probabilities.

DA correctly held that appellant chose to leave one unattended after completing his target. He thus created a chance for theft. There was no basis to reverse the verdict. Appellant

created an opportunity for theft. DA was therefore correct to uphold the finding that appellant was careless in how he finished his work. Respondent proved that no proper handover with the next shift was done. Housekeeping to secure the ore was also not done. Respondent did not say appellant was obliged to safeguard the ore but that appellant had to handover correctly and to do correct housekeeping.

Appellant is reading the DA decision wrongly. DA did not say that appellant was obliged to safeguard the ore or that he violated an instruction not to leave ore unattended. Rather the DA held that appellant’s choice to leave the plant unattended created an opportunity for theft so that was the basis of incompetency and inefficiency.

The verdict was correct and supported by evidence which was led. All essential elements were proven. There was no burden which was shifted to appellant to prove his innocence.

Upholding the dismissal penalty was justified on the facts and evidence led in the matter. Appellant’s blameworthiness called for dismissal. The financial prejudice could be avoided if proper handover had been done. Aggravation outweighed mitigation.

Dismissal was proper. Misconduct was serious warranting dismissal. Misconduct went to the root of the employment contract.

In the result the respondent prayed that the appeal be dismissed with costs on an attorney client scale. Each of the appeal grounds is discussed below: -

Ground 1

The constituents of gross incompetency and or inefficiency are settled. See Muyaka v Bak Logistics Pvt Ltd SC39-17 and National Engineering Workers Union vs Dube SC1-16. Where one falls short of the expectations of his duty, he can be adjudged inefficient.

It is equally settled that an employee owes the employer the duty to advance the employer’s interests. See Zimbabwe Banks and Workers Union vs Marimo and others CCZ 8-21 See also

Kujinga vs Old Mutual SC123-23. In the case at hand it is granted that appellant was not specifically tasked to guard the gold ore but to remove the lines. It was however incumbent on him to ensure that he left duty after a proper handover. He conceded at the initial hearing that he did not do the handover or the housekeeping before he left. In fact, he stated that he did not hand over because he left before the new shift came in. Clearly such a lackadaisical approach to duty cannot be said to be out of step with the conclusion that he acted inefficiently in the performance of his

duty. It was thus not fetched for the DA to accept that the conclusion arrived at by the hearing committee was in keeping with the charge of misconduct. This court has no basis to upset the conclusion arrived at in this regard. The ground is without merit so it should fail.

Ground 2

A reading of the DA’s decision demonstrates clearly that he was alive to the fact that the conduct complained of was the leaving of the place unattended without proper handover thus creating an opportunity for theft. Such did not need any job description to spell out the fact that such careless conduct could occasion loss to the employer. Appellant by his own admission left without a proper handover. Even using the reasonable man test See S v Burger 1975 (4) SA877 and Mapingure vs Minister of Home Affairs SC22-14 it is clear that appellant’s conduct fell far short of what a reasonable mill attendant leaving off duty would do when leaving the place where gold ore where ore was kept. There is no basis to fault the conclusion arrived at by the DA in this respect. The ground should also fail.

Ground 3

The DAs decision states clearly that appellant’s choice of leaving the ore area without proper handover created the theft opportunity. Such a conclusion is clearly on all fours with what is contained in the record before the DA and even before the hearing committee. There was thereafter a correct basis of upholding the guilty verdict. The ground being without substance should also fail.

Ground 4

The record is replete with evidence that appellant conceded leaving the ore area without a proper handover so the court wonders what shifting of onus can be said to have occurred in the case. It is settled that labour matters should be proven on a balance of probability. See ZESA v Dera SC79-

98. Such a standard was met in the case at hand so the DA’s determination cannot be said to be faulty. The ground thus fails too.

Ground 5 and 6

These two grounds are intertwined hence the decision to dispose of them at the same time. It is settled that penalty is the prerogative of the employer. See Circle Cement vs Nyawasha SC60-03.

Even for a minor infraction dismissal can be adjudged appropriate. See Chimoto v Innscor SC6-

12. Once a serious view of the infraction had been taken by the employer dismissal can be adjudged properly. Nyawasha (Supra)

In the case at hand the employer stated that it was losing large volumes of revenue to the thefts of gold ore so for the fact that appellant created an for opportunity the theft opportunity it was not remiss for the employer to say that no matter how long the appellant had served it he had to leave his job. The grounds being without merit should also fail.

Costs

Punitive costs scales are reserved for exceptional cases. See Mahembe v Matambo.HCB13-03 There is nothing exceptional about an employee trying to enforce his appellate right so the ordinary cost scale should apply. In the ultimate the appeal being without merit in its entirety it should be dismissed.

IT IS ORDERED THAT;

Appeal being without merit in its entirety it be and is hereby dismissed with costs on the ordinary scale.

Lunga Mazikana Attorneys- Appellant legal practitioner