Chitungwiza Municipality v Winnet Nyaranda and 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC-H-689-14
HELD IN HARARE, 19TH SEPTEMBER, 2014
CASE NO LC/H/APP/108/14
AND 10TH OCTOBER, 2014
JUDGMENT NO LC-H-689-14
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO LC-H-689-14

HELD IN HARARE, 19TH SEPTEMBER, 2014   CASE NO LC/H/APP/108/14

AND 10TH OCTOBER, 2014

In the matter between:-

CHITUNGWIZA MUNICIPALITY 		APPLICANT

VS

WINNET NYARANDA AND 2 OTHERS	RESPONDENTS

Before the Honourable B.T. Chivizhe, Judge

For Applicant: Miss L. Shambamuto(Legal Practitioner)

For Respondents: Mr T. Chiturumani (Legal Practitioner)

CHIVIZHE, J.

This is an application for condonation of late noting of an appeal.

The brief background of the matter is that the Respondents were employed by the Applicant as cashiers. They were arraigned before the Applicant’s disciplinary board on allegations of “theft”, “theft fraud” and “misappropriation i.e. unauthorized use of funds, assets or property belonging to council”. The allegations were that the Respondent had receipted money on particular dates. On certain dates when they were off duty, another cashier Ms Marange, had, under the pretext of taking the money for banking, misappropriated the money. The Respondents were initially arrested with Ms Marange but later released. There was evidence to show that it was Ms Marange who had taken the money. Ms Marange pleaded guilty to a criminal charge of theft before the Magistrates Court.

The three Respondents were however arraigned and convicted by the disciplinary authority on the charges levelled. A penalty of dismissal was consequently imposed on each of them. The Respondents then noted a complaint of unfair dismissal to the Labour Officer. When conciliation failed the matter was referred to arbitration. The Arbitrator in his findings dismissed Applicant’s submissions of collusion between the Respondents and Ms Marange; he found that the Respondent had been negligent in failing to do handover and take-over of the money. There was according to Arbitrator no evidence to prove the charges levelled. It was the Arbitrator’s view that Respondents were wrongly charged. He therefore concluded that the Respondent had been unfairly dismissed.

The arbitrator’s award was handed down on the 25th of March, 2014. On the 14th of May 2014, the Applicant filed the present chamber application for condonation of late filing of appeal. The application is opposed.

The fundamental issues for consideration in an application of this nature were set out in the matter of Director of Civil Aviation v Hall 1990 (2) ZLR 354 (SC). These include;

The length/extent of delay in noting of the appeal.

The cause of the delay and explanation proffered for the same.

The importance of the issues to be raised on appeal.

Whether there are positive prospects of success on appeal.

The Applicant through a founding affidavit by the Applicant Town Clerk, a Mr George Makunde, averred that the Arbitral award having been received on the 4th of April, 2014 the period of delay was consequently a delay of 2 days in noting the appeal. The explanation for the delay was that the Personal Assistant who received the award at the Applicant’s Legal Practitioners Offices failed to bring the award to the attention of the Legal Practitioner handling the matter. The Applicant had only become aware of the main award entered against it when the Legal practitioner received the application for quantification on the 8th of May, 2014. It was submitted that the Applicant’s explanation was therefore reasonable. On the prospects of success it was the Applicant position it had bright prospects on the basis that the Arbitrator grossly erred when he failed to find that the Respondent were acting in collusion with Ms Marange to defraud the Applicant. The charges levelled against them were also correct charges. Being very serious charges as to undermine the employer/employee relationship the decision by the Applicant to dismiss then had thus been properly arrived at.

The Respondent’s counter position was that even though the period of delay was short the reason proffered by the Applicant for such a delay was unreasonable. On prospects of success it was contended that the Applicant had no prospects of success. The Arbitrator had correctly found that the charges of theft and/or misappropriation had not been established before the disciplinary board. The same board had also failed to establish the Respondents were acting in concert with Ms Marange when she misappropriated the funds.

Whilst clearly the period of delay in noting the appeal is a very short one i.e. 2 days the explanation tendered for the delay that a clerk at the Applicant’s Legal Practitioner firm overlooked to hand over the main award to the relevant legal practitioner is not convincing at all. This is so especially considering that it was only after the Respondent noted an application for quantification of the main award that the Applicant filed its counter application for condonation. The Applicant appears to have received the arbitral award and relaxed. The Applicant was only jolted into action upon receipt of the application for quantification of the arbitral award.

I would have been prepared to overlook the unreasonable explanation had the Applicant good prospects of success on appeal. The Applicant however also has poor prospects of success on appeal.

It is clear from the perusal of the record that in his award the Arbitrator noted (correctly so in my view) that whilst the Respondent had not done a proper handover take-over on the particular dates, no evidence had been adduced to show that the Respondent had stolen the money. Instead the evidence showed that Ms Marange had through her own plea of guilty admitted stealing the money and she had then been directed by the Magistrate Court to restitute the employer. The Arbitrator also came to the conclusion that based on the facts the Respondent were wrongly charged.

The Applicant intends to appeal on the basis that the Arbitrator erred in concluding that the Respondents were wrongly charged and also in setting aside the dismissal penalty. The Applicant in its papers submitted at length on the employer’s prerogative to discipline an employee. It is indeed the correct position at law that the employer has the prerogative to discipline an employee even where the employee was initially facing criminal charges and charges are either withdrawn or the employee is discharged. In this case it is clear that once the charges were withdrawn against the three Respondents it was open to the Applicant to discipline them for any perceived acts of misconduct. It was however up to the employer to level the appropriate charges and prove them. The Applicant having levelled charges of “theft”, “fraud” and “misappropriation” however failed to establish those charges, on the facts presented. The Applicant also dismally failed to establish any collusion between the Respondent and Ms Marange.

The Arbitrator having found that there was an unfair dismissal the remedy that was available was automatic reinstatement or in the alternative payment of damages in lieu of reinstatement. The Applicant suggests that the Arbitrator having established that there were procedural irregularities ought to have remitted the matter back to the employer for rehearing. That submission clearly has no basis at law. An employer who levels wrong charges against an employee or fails to establish any charges levelled is fatal to the disciplinary proceedings. It nullifies the disciplinary proceedings. The proper remedy is to direct reinstatement or in alternative payment of damages in lieu of reinstatement. See Zimasco (Pvt) Ltd vs. Chizena 2007 (2) ZLR 514 (S). The appeal clearly has nil prospects of success.

The application for condonation of late noting of appeal is hereby dismissed with costs.

Matsikidze and Mucheche – Applicant’s legal practitioners

T.K. Hove and Partners – Respondents legal practitioners