Appellant v Respondent

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/348/25
HELD AT HARARE
CASE NO. LC/H/600/25
---------


18th SEPTEMBER 2025 and 29th SEPTEMBER 2025 BEFORE THE HONOURABLE GONESI J

For the Appellant:	S. Muhambi,

For the Respondents:	H. Madzongwe

GONESI J: This is an appeal in which the following order is sought:

That the appeal succeeds with costs.

That the determination of the arbitration court be and is hereby set aside.

That the decision of the appeals officer be and is hereby set aside.

That the decision of the disciplinary authority is set aside and replaced by ‘the defendant/accused is not guilty’ and the charges are hereby dismissed.

That the appellant be and is hereby reinstated to her original position with full salaries and benefits.

FACTUAL BACKGROUND

The appellant was arraigned before a disciplinary authority for the consumption of food meant for customers and the disciplinary authority dismissed her. The appellant appealed internally to the appeals authority, which upheld the decision of the disciplinary authority. Aggrieved by this decision, the appellant approached the Labour officer with her appeal against the decision of the appeals authority. The matter could not be settled amicably at the conciliation level, hence a referral to compulsory arbitration was made in terms of section 93(5) of the Labour Act [Chapter 28:01]. The arbitrator dismissed the appeal for want of merit and legal basis

Aggrieved by the decision, the appellant has noted the present appeal on the following grounds,

GROUNDS OF APPEAL

“The arbitrator erred at law in finding that the appellant was a catering teller and not a shift leader and was not at all permitted to eat food as contrary to the evidence showing a version different to such a conclusion. That was gross error by the arbitrator.(sic)

Appellant submits that the finding that appellant was denied the right to appear before the appeals officer has no merit is quite unreasonable and truly incompetent as it defies the rule of audi alteram partem law. It is grossly wrong.

The arbitrator erred at law in finding that the appellant continued to eat whereas she relied on evidence which was not in the record. Her finding is quite irregular as it did not consider the facts properly such that it is grossly misdirected.”

Appellant’s Case

Mr. Muhambi submitted that the key dispute was whether the employee was a cash teller or a shift leader. He contended that the arbitrator erred in making a finding that the appellant was employed as a cash teller and not a shift leader. It was Mr Muhambi’s contention that the pay slip of the Appellant showed that she was a shift leader. Mr. Muhambi submitted further that the appellant even pleaded not guilty and stated that she was in authority and allowed to eat. It was Mr Muhambi’s submission that the appellant was denied her constitutional right to be heard and that if the appellant had been given an opportunity to appear,

she would have indicated why she was tasting food. It was also argued that the appellant had a right to administrative justice. It was argued further that the finding that the appellant continued eating after being notified not to is wrong, as there was no evidence that the appellant continued taking food. It was submitted that the arbitrator failed to judiciously handle the matter and this court can interfere with the decision.

Respondent’s Submission

In response, Ms Madzongwe submitted that by and large she abides by the papers filed of record. In relation to the 1st ground of appeal, Counsel submitted that appellant’s position was that of a cash teller. It was submitted that there is nowhere in the appellant’s employment contract showing that she was a shift leader or supervisor and relying on such or making such a finding would be tantamount to rewriting the contract between the parties. Ms Madzongwe disputed the argument by the appellant that there were pay slips to the effect that the appellant was a shift leader and she stated that the pay slips are not before the court to prove the same. It was submitted that the fact that the appellant exercised some supervisory roles does not transfer her to a shift leader and only a formal promotion from the employer could have made her the same.

In relation to the 2nd ground of appeal, Ms Madzongwe submitted that it lacked merit. It was further submitted that the appellant was not denied the right to be heard, as the applicable law allowed the matter to be decided on the papers and hence there was nothing irregular about the arbitrator making a finding that the appeals authority did not err in deciding the appeal on the papers, as generally appeals are dealt with on the record.

In relation to ground 3, counsel submitted that the arbitrator correctly upheld the decision of the appeals authority. Counsel contended that the evidence which was tendered clearly highlighted that the appellant was guilty of the charges. It was respondent’s submission that the appellant received a message on the same day as she was part of the group, as all other employees and any evidence contrary to that is neither here nor there. Ms Madzongwe observed that there was an admission that appellant was aware of the memorandum. The respondent argued that the appellant’s defence of tasting food items was not correct as the appellant could not taste with a whole cone as a scoop could do. Counsel reiterated that the meals register showed that the appellant was taking food for her own consumption ,an act that was no longer allowed by the respondent.The respondent also went on to submit that it was not only the

appellant who was dismissed, but also some of the employees were dismissed and some were warned. It was also submitted that it is the employer’s discretion to dismiss, hence there was no gross irrationality, neither was there an irregularity in the employer’s decision, warranting interference.

The court enquired from the respondent the fact that the appellant had stated that the reason why she was tasting ice-cream using the whole cone was that there was no proper procedure for it. The respondent highlighted that the procedure was there, what needed to be tasted was ice-cream, not the cone, which is a complete product and the ice-cream was supposed to be tasted using a scoop. Mr. Muhambi, in response, highlighted that whether written or not, the appellant was a shift leader. It was submitted that the appellant was given the duties of a shift leader, hence was eligible to eat. The court enquired if the appellant agrees that there is a valid contract between the parties, which he confirmed. The court also enquired if the appellant’s representative agreed that he had not provided any proof of the promotion and he stated that he had provided proof that the appellant had supervisory roles as highlighted in their Statement of Claim.

ISSUES FOR DETERMINATION

Whether or not the Arbitrator erred in classifying the appellant’s role and entitlements.

Whether or not the Arbitrator relied on evidence that was not in the record.

Whether or not the appellant was denied the right to be heard before the appeals officer.

APPLICATION OF THE LAW TO THE FACTS.

Whether or not the Arbitrator erred in classifying the appellant’s role and

entitlements.

The appellant’s representative contended that the court a quo erred in failing to properly evaluate and take into account material evidence adduced during the proceedings, which purportedly substantiated the appellant’s claim that she held the position of shift leader. In particular, the appellant averred that the arbitrator neglected to consider documentary evidence in the form of a payslip, which, according to her, explicitly reflected her designation as a shift leader and thereby corroborated her employment status.

However, it is a well-established principle of law that a court or tribunal may only rely upon evidence that forms part of the official record. In this regard, it is trite that the aforementioned payslip, which the appellant relies upon to support her assertion, was not formally submitted into evidence and does not appear on the record of proceedings. Consequently, the arbitrator cannot be faulted for failing to consider evidence that was not properly placed before him in accordance with procedural requirements.

In the case of Ruswa v Mutema HH 156-25, it was stated that,

“It is trite that the basic principle at law is that he who alleges must prove”

It is a well-established principle of law that allegations made by a party must be substantiated by credible and admissible evidence. In the present matter, the appellant asserts that she occupied the position of shift leader during the course of her employment. However, this assertion is made in the absence of any supporting documentation or corroborative testimony that would lend credence to such a claim. The contract of employment, which constitutes the terms and conditions of the appellant’s engagement, unequivocally designates her role as that of a catering teller. Consequently, I find the decision of the arbitrator sound.

In the case of Zimsec v Mukomeka & Anor SC 765-18, it was stated that,

“The general principle is that the courts will not interfere with the actions or decisions of an administrative authority unless they are shown to be unlawful, grossly unreasonable or procedurally irregular or unfair.”

In the result, the ground of appeal does not have merit.

Whether or not the Arbitrator relied on evidence that was not in the record

It was submitted by the appellant that the arbitrator relied on a register book covering the period from the 11th of February 2024 and that was a gross error warranting the court to interfere with the decision of the court a quo. An exhaustive study of the record has not shown anything related to the continued eating on the 11th of February 2024, so argued appellant’s representative .Mr Muhambi argued that the evidence in the form of food registers did not show the appellant eating on that date.

An examination of the record reveals, with clarity, that the appellant persisted in consuming food notwithstanding having been expressly instructed to desist from such conduct. This

continued behaviour, in direct contravention of the directive issued to her, is well-documented and not subject to dispute.

In ZIMASCO (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S), it was stated that,

“What the Labour Court was called upon to do, quite properly, was to determine whether, on the basis of such facts, the offence with which the respondent was charged had been established on a balance of probabilities.”

In light of the foregoing, it cannot be reasonably asserted that the arbitrator’s findings were so manifestly irrational or devoid of evidentiary support as to amount to misdirection or a conclusion reached in defiance of logic and common sense. The appellant’s contention regarding whether she consumed food specifically on 11 February is immaterial to the central issue, which is her continued non-compliance following a clear reprimand. The proof that she continued eating is therefore satisfactory on a balance of probabilities.

Accordingly, the ground of appeal premised on this argument is devoid of merit and does

not warrant interference with the arbitrator’s decision.

Whether or not the appellant was denied the right to be heard before the appeals officer

The appellant contended that her right to be heard was infringed by the appeals officer, as the appeal was decided on the papers instead of a physical hearing and the arbitrator misdirected by upholding it.

In the case of ZESA Enterprises (Pvt) Ltd v Stevawo SC 147-15, it was stated that,

“The right to be heard is a fundamental cornerstone of our law․ It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our constitution as read with the Administrative Justice Act [Chapter 10:28] ․ The maxim that no one shall be condemned without being heard holds sway in our law.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations, 2006 provides that,

“(3) A person or party who is aggrieved by a decision made in terms of section (2) may, in writing, note an appeal within seven working days with the Appeals officer or Appeals Committee.

(4) The Appeals Officer or Appeals Committee, as the case may be, may call for a formal hearing to hear the appeal or decide from the record submitted.”(my emphasis)

Upon careful consideration of this matter, I am satisfied that the appellant’s constitutional and procedural right to be heard was not violated. The record clearly reflects that both parties were afforded the opportunity to submit their respective pleadings and supporting documentation. These submissions were duly filed and formed part of the record before the appeals officer.

It is a well-established principle in administrative proceedings that, where parties have been given a fair opportunity to present their case in writing, the adjudicator may, in the exercise of lawful discretion, determine the matter on the papers without convening an oral hearing. In the present case, the appeals officer acted within the bounds of procedural fairness and legal discretion by adjudicating the matter on the papers. There is no indication that the appellant was denied an opportunity to present her case, nor is there any evidence of procedural irregularity that would amount to a denial of the right to be heard.

Accordingly, the appellant’s claim of procedural unfairness is without merit and cannot

be sustained.

DISPOSITION

lack of merit.

Commercial Workers Union of Zimbabwe, appellants’ legal practitioners

Matsikidze Attorneys-At-Law, respondent’s legal practitioner