Alec Nyawo v Jena Mines (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/454/14
HARARE ON 5th MAY, 2014
CASE NO. LC/H/39A/05
And 18TH JULY 2014
JUDGMENT NO. LC/H/454/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/454/14

HARARE ON 5th MAY, 2014				     CASE NO. LC/H/39A/05

And 18TH JULY 2014

In the matter between

ALEC NYAWO			–	Appellant

And

JENA MINES (PVT) LTD.		–	Respondent

Before The Honourable Muzofa, J.

For Appellant	: Ms. Tshuma (Legal Practitioner)

For Respondent	: Mr Tsivama (Legal Practitioner)

MUZOFA J.

There has been an inordinate delay in the finalization of this matter. This appeal was noted in December 2004. It was placed before the late President MUTEZO who heard the matter on the merits. Sadly he passed on before delivering the judgment. The record at some point could not be located. When it was eventually located the Senior Judge directed that the matter be heard afresh before another Judge or another Judge could write the judgment from the late President MUTEZO’s notes. The first option was adopted and the matter was placed before me.

This is an appeal against the Respondent’s decision to dismiss the Appellant.

The Appellant was employed as a Maintenance Superintendent in the Engineering Department of the Respondent. Following allegations that the Appellant had interfered with a tender process by soliciting for a bribe from one Gwature, Appellant was charged. The Appellant was charged for contravening Sections 12 B (2) (b) (ii) and (iv) of the Labour Act. He was found liable by a Disciplinary Committee. An internal appeal was noted and it was unsuccessful. Appellant then appealed to this Court on the following grounds.

That there was no evidence to sustain a verdict of guilty against the Appellant

That the penalty of dismissal was too harsh

That there was a delay in finalizing the matter.

The Court raised issue on the charge preferred against the Appellant. The charge was couched in the following terms:-

“It is alleged that you contravened Sections 12 B (2) (b) (ii) and (iv) of the Labour Act in that you acted contrary to the fulfillment of the express to your contract of employment or alternatively you defrauded the company.”

The Court was of the view that the sections do not create any offences. Both parties filed detailed supplementary heads of argument on this aspect and the Court is indebted to both Counsel. What is evident from the submissions is that the Appellant was charged in terms of the Labour Act as amended by the Labour Relations Amendment Act, 2002. In view of that therefore the Appellant was properly charged. It was not raised whether Respondent had a Code of Conduct at the time of the offence. This is so because an employer could only charge an employee under the said Sections where no Code of Conduct existed. This was before the coming into effect of the Labour (National Employment Code of Conduct) Regulations, 2006 Statutory Instrument 15/06.

I will now address the grounds of appeal as raised by the Appellant.

The evidence

Sufficiency of evidence in a labour case is just like in any civil matter, the standard of proof is not anything other than proof on a balance of probabilities see ZESA vs. Dera 1998(1) ZLR 500 (SC). In this case there was no direct evidence to link the Appellant to the alleged offences. There was circumstantial evidence the Court is guided by the case of Abraham v Pittman N.O. 1995 (1) ZLR 176 (H) at 184 E – 185 F where it was held, in balancing probabilities the Court selects a conclusion which seems to be the more plausible conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.

The circumstances giving rise to the issue are disputed. I would set out the undisputed facts first. The Appellant was in charge of the Engineering Department of the Respondent. In December 2002 Respondent required some work to be done to rubberize mill liners and launders. A company Interfield (Pvt) Ltd. won the tender and was paid $5 737 478.17 in January 2003 for services rendered. On 12th March one Gwature the owner of Interfield (Pvt)

Ltd. deposited a cheque for $350 000 which was later dishonoured into Appellant’s bank account. What is in dispute was the purpose of the payment to Appellant. According to the Appellant the money was for a television set that he had sold to Gwature. Gwature’s version was that the money was a payment to Appellant for securing a job for Interfield (Pvt) Ltd and to facilitate prompt payment.

The evidence placed before the Disciplinary Committee was mainly in an affidavit by Mike Gwature. Gwature in his evidence alleged that he on behalf of Interfield (Pvt) Ltd submitted a tender for the job in the sum of $4 700 000. The Appellant later contacted him and advised Gwature to alter the tender bid to $4 700 000. Out of the additional $1 million, $500 000 was to be paid to the Appellant and $500 000 was to be paid to Mr Ndlovu  the Mine Manager. Gwature complied and later on advised the Respondent about the issue. Respondent advised Gwature to play along and make payments by way of cheque to create a trail of evidence. Gwature denied that he ever bought a television from Appellant. The Appellant also raised issue on the Disciplinary Committee’s reliance on an affidavit instead of calling the author so that the credibility of his evidence could be tested under cross examination. This would have been the most appropriate position. However failure to call a witness in a disciplinary hearing does not render the proceedings fatally defective where there is an affidavit. This issue was amply considered in the case of Chataira vs. Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 where the Court said the following at page 33;

“………. It is clear that, at a hearing into allegations of misconduct, it is not necessary that viva voce evidence be led. The employee concerned must obviously be shown any statements or documentary evidence that is being produced before the Disciplinary Committee but he cannot insist that the person who made the statement be called so that he can be cross-examined”

In casu it was alleged Gwature was in fear since he had been threatened as such was uncomfortable to give viva voce evidence. I cannot fault the Disciplinary Committee for relying on Gwature’s affidavit.

The record of the disciplinary hearing appear to be incomplete. However what is on record show that evidence was also led from one Tangenhamo who was in charge of the Plant Department. It seems the job to be done was predominantly in the Plant Department. The witness said he signed for the job to be done. However on page 3 of the record of proceedings the following conversation of his evidence took place.

“    - 	After taking measurements the Interfield representative went to Mr Nyawo’s office and after that he came to Maintenance Superintendent with values:

Who authorized the job?

Mr Nyawo

How do you know?

Interfield representative wanted to know when he could start implying he had been given the job by Nyawo.

…

Do you think there was anything that Mr Nyawo was hiding from you as regards quotations?

I had no reason to suspect

Who was supposed to do the assessment?

Mr Nyawo

…

Did you sign the quotation freely?

Yes, freely.”

To my mind the above shows that Appellant was not only involved in the sourcing of the companies as he alleged. His involvement went beyond phoning it went to the extent of approving or recommending a suitable company.

There was evidence from an employee of Interfield Pvt Ltd. – Joe Mazendame who received a call from Appellant giving him his banking details for onward transmission to Gwature.  This was on 12th March 2003. That was the employer’s evidence coupled with the dishonoured cheque for $350 000 that was paid to Appellant.

Appellant disputed that the $350 000 was for corrupt purposes. His evidence was that he knew Gwature other than in the course of his employment. In October 2002 he sold a television set to Gwature for $350 000. On page 9 of the record of disciplinary hearing Appellant said the payment arrangement was that Gwature would pay the money when he had it. In March Gwature deposited a cheque that was dishonoured. At all times Appellant did not make any attempts to follow up on the payments. Eventually the television set was recovered from Gwature for non-payment in November 2003. Forget Malimba gave evidence that he collected the television set from Douglas Gwature a brother to Mike Gwature. He had been sent by the Appellant and his wife. This was in November 2003. Mrs Nyawo – Appellant’s wife also gave evidence. She said they sold a 21 inch television set to Mike Gwature in October 2002. Gwature was to make the full payment in October or November 2002. They followed up on payment until a dishonoured cheque was deposited in Appellant’s account. She sought the intervention of the police and eventually sent Forget to collect the television set. There was also a statement from a ZRP member Kwekwe indicating that Appellant’s wife had made a report on the television. However no formal documentation was made.

From the evidence I do not believe Appellant’s version. If the television was sold in October 2002 why did he phone Interfield Pvt Ltd in March supplying his banking details? Appellant and his wife made contradictory assertions on the payment plan. Appellant said the amount was payable as and when Gwature had the money. The wife said the payment was to be made in October or November 2002. The inference that can be drawn is that the Appellant had to supply Gwature with his banking details since Gwature/Interfield was paid for the services in Janaury 2003. There was evidence that Appellant’s involvement in the tender process went beyond assisting the Plant Department by sourcing for companies. The Appellant alleged the television was subsequently recovered in November 2003. This was well after the charges were preferred against the Appellant. Appellant was served with the letter of suspension together with the charge on 24 July 2003. In my view if the recovery of the television is a truth, the Appellant would have involved the employer/Respondent in this matter. This was just going to exonerate the Appellant from the said conduct. It was going to bolster his defence. As indicated before the Appellant’s version is not credible. Appellant was involved in interfering with the tender process. If indeed as alleged by Appellant Gwature had a motive to falsely incriminate him, why would he also involve the Mine Manager – Mr Ndlovu. I believe if Gwature had issues with Appellant he would make up a story against him only.

In any event the Appellant is challenging the factual findings of the Disciplinary Committee. The Committee made factual findings on credibility. Appellant was found to be evasive and not credible. This Court, sitting as an appellate Court is unable to make findings on credibility. In Nyahondo v Hokonya and Others 1997 (2) ZLR 475 (SC) the Supreme Court held that;

“……an appellate Court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfies that having regard to the evidence placed before the trial court, the findings complained of a re so outrageous in their defiance at logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at the decisions.”

In casu it has not been shown that from the evidence the decision made by the Respondent defies logic. I believe on a balance of probabilities there was evidence to find the Appellant liable.

The penalty

For the Appellant it was submitted that the penalty did not take into account his length of service and that he did not benefit from the botched process since the cheque for $350 000.00 was dishonoured. The position of the law is very clear. The employer has the prerogative to charge an employee. Thereafter where the employer is of the view that the conduct goes to the root of the employment contract, the employer is entitled to dismiss the employee see generally Mashonaland Turf Club vs. George Mutangadura SC 5/12. The Court can only interfere with an employer’s discretion where it has been shown that the employer did not exercise its discretion judiciously. In this case it was neither alleged nor shown that the Respondent’s discretion was unreasonably exercised. This ground of appeal has no merit and should be dismissed.

The delay

According to the Appellant he was suspended in July 2003 and the matter was finalized in December 2004 almost one and half years had lapsed. On that basis the appeal should be upheld. I do not agree with the Appellant. The procedures in a hearing relating to timelines are governed by Section 101(6) of the Labour Act [Chapter 28:01] which provides;

“if a matter is not determined within thirty days of the date of the notification …. The employee or employer concerned may refer such matter to a Labour Officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Appellant therefore should have referred the matter to a Labour Officer if he was disgruntled by the delay. The fact that he had an option to exercise and failed to exercise it means he waived his rights to raise issue of the delay. This ground of appeal has no merit.

From the foregoing clearly the appeal is without merit, accordingly the following order is made.

The appeal be and is hereby dismissed.

The order by the Appeals Committee be and is hereby confirmed

There is no order as to costs.

Goneso and Associates – Appellant’s legal practitioners

Sawyer and Mkushi – Respondent’s legal practitioners