Dalny Mine v Joseph Matose

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/602/16
HELD AT HARARE 31 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZAIMBABWE		JUDGMENT NO LC/H/602/16

HELD AT HARARE 31 MAY 2016				CASE NO LC/H/26/16

& 7 OCTOBER 2016

In the matter between:

DALNY MINE					Appellant

And

JOSEPH MATOSE				Respondent

Before The Honourable Chidziva, J

For Appellant		Advocate Zhuwarara

Respondent			In person

CHIDZIVA J:

This is an appeal against the decision of the honourable arbitrator Mr F Matanhire dated 18 December 2015.  The arbitrator in his award ordered as follows

“In view of the above I thus find the dismissal unfair and order the reinstatement of the appellant without loss of salary and benefits from the day of the unfair dismissal.

If the employment relationship is no longer tenable, the respondent pay damages for unfair loss of employment.

The respondent is ordered to comply with this award within twenty one (21) days of receipt of this arbitral award.

Thus done at Harare this Friday 18 December 2015.”

The brief history of this matter is that the respondent was employed as a chief security officer from August 2008 to 13 August 2015.  He was suspended and dismissed from work on charges of misconduct.  It is alleged that he failed to control illegal panning and it was alleged that he also failed to execute his major duty of safeguarding the company assets by allowing illegal panning.

The respondent appealed to the arbitrator alleging unfair dismissal.

The appellant has filed an appeal against the arbitral award.  The grounds of appeal are as follows

The arbitrator erred on a point of law by finding fault with disciplinary proceedings and concluding that the hearing was conducted outside the fourteen day time frame as provided for by S.I. 15/2006.  The arbitrator failed to appreciate that the respondent was charged and disciplinary proceedings were convened, conducted and finalised in terms of S.I. 165/1992.

The arbitrator misdirected himself on a point of law by concluding that the transcript of the audio recording was inadmissible.  The arbitrator misdirected himself in failing to take into account the fact that the respondent did not contest to the introduction of the evidence.

The honourable arbitrator erred in judgment on a point of fact so grossly as to amount to misdirection on the law when he concluded that the individuals who recorded the discussions between themselves and the respondent were not cross-examined.  As the record shows three (3) of the individuals who were part of the audio recording were called into the hearing and cross-examined by the respondent.  The honourable arbitrator therefore misdirected himself on a point of law by disregarding critical evidence believing it was inadmissible.  The disregard on such important evidence could only lead to bad decision on the matter.  This goes to show that the honourable arbitrator did not acquaint himself with the record, full facts and took pedestrian approach to his award.

The honourable arbitrator erred in law by disregarding the evidence of witnesses that the respondent was seen at a notorious milling plant collecting his share of the illegal mining proceeds.

The honourable arbitrator erred in law and contradicted himself by and on the one hand conceding that the respondent failed in the executing of his duties and on the other hand hold that the respondent had not been charged with such an offence.  The charge sheet and record of proceedings show that the respondent was being charged with participating and or allowing unauthorised personnel to participate in illegal mining on the appellant’s mining claim.  It is apparent, therefore that the respondent was indeed charged with the offence which the honourable arbitrator conceded was proven.

The respondent failed in execution of his duties being safeguarding the mine assets in his capacity as security officer.

The honourable arbitrator in concluding that the respondent could only be found guilty based on clear evidence is a gross misdirection of law  Failure to appreciate this fact is so rational and outrageous in its defiance of law that no sensible person could have arrived at such a conclusion.

On these grounds appellant prayed that the arbitral award be set aside and that

this court up holds the dismissal of the respondents.

In response the respondent submitted that

The arbitrator did not err by finding that the disciplinary hearing was held outside the 14 day time period provided by S.I. 15/2006.  The Collective Bargaining Agreement: Mining Industry (Code of Conduct) S.I. 165/1992 does not provide for a specific time line within which a disciplinary hearing should be conducted after an employee has been suspended pending a disciplinary hearing.  Thus when such a grey area exists within a CBA the S.I. provisions of S.I. 15/2006 came into effect to address such a lacuna as an employee cannot be suspended indefinitely at the whims and caprices of the employer.

The Constitution of Zimbabwe provides that every individual is entitled to a trial within the  reasonable time period.

The arbitrator did not err by holding that the audio recording was inadmissible as evidence.

The respondent declined the admissibility of the audio recording as an exhibit to the disciplinary hearing.   Playing the audio recording during a disciplinary hearing and its admissibility as evidence are different.  The chairman of the disciplinary hearing erred by playing an audio recording without asking the respondent whether he objects or agrees to its admissibility.  The chairman of the disciplinary hearing was arbitrary in his conduct of the disciplinary hearing only to ask the respondent whether or not he agrees to the admissibility of the audio recording after he had played it.  In addition the audio recording as evidence is inadmissible as respondent was not given the audio recording on time to verify its authenticity or prepare a defence with regard to its production as evidence before the disciplinary hearing.  The audio recording does not show that the respondent allowed or permitted anyone to participate in illegal gold mining at the mining claims of the appellant.

The respondent did not cross-examine the witnesses on the basis of the audio recording but he cross-examined them on the evidence they had adduced during the disciplinary hearing.  Hence the argument by the appellant that the respondent cross-examined the witnesses on the basis of the recording is purely misleading and meant to divert the attention of the court from the fact that he was dismissed unfairly by the appellant.

The evidence being referred to by the appellant amounts to a dispute of fact and not of law and thus not admissible during this appeal.

The arbitrator indicated that the evidence adduced did not prove the offences that the appellant were being charged with.

On these grounds the respondent prayed for the dismissal of the appeal.

When the parties appeared before me both parties representatives indicated that

the parties adhered to their heads of argument.  However respondent indicated that he was applying to file supplementary heads of argument in terms of Rule 19 (6).  He also applied to (4) four witnesses in terms of Rule 23 of the Labour Court Rules.  He stated that these (4) witnesses were said to be the authors of the audio recording.  The appellant opposed this application indicating that new evidence could not be produced on appeal.  If respondent had found new evidence he has to ask for a rescission.

It is common cause that

Respondent was the chief security officer of respondent.

There was illegal mining in company claims

Brighton Samutete the respondent’s brother-in-hour worked with  Zakeyo Phiri a former permit holder.  At one time respondent was found at the mill with his brother-in-law (Page 64).

During the hearing Washington Eremia, N Munangwa, F Mugadza testified  indicating that they had meetings with the respondent indicating that they intended to mine where the other illegal miners were mining.

The 3 witnesses also gave evidence to the effect that they had an audio recording of their meeting with the respondent.

Zakeyo Phiri is the chairman of the Dalny Mine Milling Syndicate which is mining in all claims around Chakari.

What is to be decided is whether

The arbitrator erred by finding fault with the disciplinary indicating that it was concluded out of the time frame that is provided under S.I. 15/2006.

The arbitrator erred by disregarding the important evidence from the (3) three witnesses who were part of the audio recording

The arbitrator erred by disregarding the evidence of witnesses that the respondent was seen at a milling company of illegal mining.

The arbitrator erred by failing to take into account the fact that the respondent did not contest to the introduction of the transcript of the audio as evidence

The arbitrator erred by failing to take into account the fact that the respondent did not contest to the introduction of the transcript of the audio of evidence.

The arbitrator erred by concluding that the respondent could only be found guilty based on clear evidence.

Whether the arbitrator erred by applying S.I. 15/2006

The respondent was suspended on 15 July 2015 and the hearing was conducted on 13 August 2015.  According to S.I. 15/2006 the hearing was conducted out of the stipulated time limit of 14 days.  The respondent in his response to the notice of appeal stated that the code that governs him does not set out time lines within which a hearing must be concluded.  He stated that the code states that the hearing is supposed to be concluded within a “reasonable” time and therefore S.I. 15/2006 should apply.  Although the reasonable period in the governing Code of Conduct was not defined there was no reason to import the National Code because

a delay of about 13 days cannot be said to be unreasonable.

it is a trite principle of law as stated in the case of  Minerals Marketing Corporation of Zimbabwe v Mazvimavi 1995 (2) ZLR 353 at 362 that employment relationships are governed by the applicable code and that there can be no derogation therefrom.  In the case the applicable code was not breached and there was no basis to impart the national code.

the delay  in concluding the matter was also caused by postponements.

Furthermore the Supreme Court has also clearly stated that the failure to

complete a hearing within  the time limit prescribed does not invalidate the proceedings.  In the case of Nyoni v Secretary for Public Service Labour and Social Welfare & Anor 1997 (2) ZLR 516 it was stated that

“--- The delays cannot be seen as themselves impugning directly on the actual hearing given to the aggrieved party.  They do not constitute a breach of the rules of national justice.  These are recognised as being subsumed under two main headings represented by the maxims, audi alteram partem …………… which  enshrines the right to a fair hearing and nemo iudex in sua causa by which it is stressed the right to an important decision.  Although the aphorism tells us that justice delayed is justice denied.  I know of no authority for the proposition that delays encountered in the cause of administrative procedures are themselves reviewable irregularities…”

This therefore means that delays in concluding a disciplinary procedure does not justify reinstatement.  It only gives the aggrieved party the right to the remedy of mandamus to enforce compliance with the time limits.

Whether the arbitrator erred by disregarding evidence from the three (3) witnesses who did the audio recording

The arbitrator found that the transcript of the audio recording was not admissible because the audio recording on which it is based was made without the respondent’s consent.

However there is no law which says the consent of the person who has been recorded must be sought or obtained before the recording could be admitted into evidence.  Section 13 (i) of the Civil Evidence Act [Chapter 8:01] states that

“Subject to this section a document produced by a computer shall be admissible as evidence of any fact stated therein if direct oral evidence of that fact would be admissible…”

This was a cellphone recording and cellphone fall in the same category with computers.  Furthermore during the hearing respondent made the following request (Page 59) of disciplinary proceeding

“We request that we have access to the audio so that we can study it for us to prove authenticity by consulting computer experts.”

Upon this request respondents was told to collect the copy of the recording the following day at 3.00 p.m.

At the conclusion of the hearing the respondent stated on page 74 of the proceedings that

“I would like to point out that I appreciate having been given enough opportunity to all the side of my story and to defend myself without any hindrance.”

His statement shows that he was allowed to defend himself without any hindrance.  Respondent however does not explain why he did not object to the production of the recording long as it was.  He was asked to collect a copy of it.

There is nothing on record to show that he was not allowed to access the documents and consult a computer expert according to his request.  There is nothing to show that he challenged the contents of that document.  The persons who participated in the recording of the audio gave evidence and they were cross-examined.  Respondent admits that he was given adequate time to prosecute his case.

Further hearing committee and arbitrators as well as the Labour Court do not have strict rules of evidence.  Section 90 A (1) of the Labour Act states as follows

“The Labour Court shall not be bound by the strict rules of evidence and the court may ascertain any relevant fact by any means which the presiding officer thinks it and which is not unfair or unjust to either party.”

From the way the proceedings were handled it is this court’s view that the proceeding by the hearing committee were handled in a fair and just manner.

The key witnesses who recorded the audio, gave evidence and were cross-examined.  They also submitted affidavits to the hearing committee indicating that respondent admitted his link to illegal miners.  The contents of the audio are key and clearly show his neglect of duty as it establishes that

The security officer met the (3) three men who recorded the conversation in Kadoma.

The main issue in the discussion was that the security officer mediate between the Chakari group which was already mining for gold in the Falcon Gold Claims and the Kadoma group.

The security officer indicated that he is human and needs money since the company is not paying him enough.

The respondent also works hard in hand with one Hogan an old man who claims that Falcon Gold Claims were given to him by the company as his “retirement package”.  There are also photographs to show that he was drinking with this man at Speedway bar on 13 June 2015.

The respondent stated that he had no security guards to look after the shaft in question and the mine is not operational.

The respondent is aware of the illegal mining activities taking place in Falcon Gold Claims but he intentionally neglects his duty of protecting the property because he is pro-people.”

The respondent is aware that tribute agreements expired in 2010 and whoever is mining on Falcon Gold Claims is doing that illegally.

The respondent willingly and voluntarily chose to be on the side of the illegal miners because there are more financial benefits from this than the salary he is getting.

The respondent confirmed that more than a kilogramme of gold was sometimes realised from the illegal mining activities and the proceeds were shared amongst 36 people.

The respondent also divulged official information to the effect that Mr Saunders is in South Africa and manages through e-mails only.

Whether the arbitrator erred by finding that respondent did not fail to execute his duties

From the evidence of the audio and the three witnesses who recorded the audio it is very clear that the arbitrator erred by finding that respondent did not commit the alleged offences.

Whether the arbitrator erred by disregarding the evidence of witnesses who saw him at the Milling Company

Evidence was also led to show that respondent had been seen at the milling plant collecting his share in the middle of the night.  In the video recording he clearly stated that he would abuse the employer’s knowledge of his brother-in-law and would visit the milling plant under this cover.  The explanation that he had gone to rescue his brother-in-law does not hold any water in view of the audio recording.

The arbitrator stated that the other reason or evidence given to support that the respondent was involved in gold panning activities was that he was seen driving the company car in the middle of the night at the claim site.  The appellant had actually made a factual finding from the audio recording and the witnesses to the effect that respondent was involved in gold panning activities.  The case of Chioza v Siziba SC 04-2015 has explained the principle concerning factual findings as follows

“The court a quo made factual findings in this regard.  The general rule regarding factual findings made by a trial court is that they will not be upset by an appellant court unless there has been such a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusions reached by the lower court.”

From the evidence before this court I find that there was no misdirection by the hearing committee on the facts showing misconduct by the respondent.

The respondent failed in the execution of his duties by involving himself in gold panning activities and failure to protect the interests of the appellant.

In view of this therefore this court finds that the arbitral award is wrong.

The respondent applied to adduce new evidence on appeal.  He applied to file supplementary heads of arguments in terms of Rule 19 (6) of the Labour Court Rules.  He indicated that he wanted the (4) four witnesses who are the authors of the audio.

However these witnesses have already testified during the disciplinary hearing.  He was given the chance to cross-examine them.  The record of proceedings has also been produced as an exhibit.  It is their evidence which is the basis of the finding of respondent’s guilty by the disciplinary committee as well as the court.

Section 90 A of the Labour Court rules gives this court the discretion to ascertain any relevant fact by any means which is not unjust or unfair to either party.  In this case calling of further evidence is not necessary as the evidence before this court is clear.  There is nothing further to be ascertained by this court.

To this end therefore this court finds that the appeal has merit.  The evidence before the court shows that respondent is guilty of the offence that he was charged with.

Accordingly I order as follows

The appeal be and is hereby allowed.

The arbitral award by honourable arbitrator Mr F Matanhire that was handed down on 18 December 2015 be and is hereby set aside.

Respondent shall bear costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners