David Chamahwinya v Irvines Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/94/14
HARARE ON 10thFEBRUARY, 2014
CASE NO. LC/H/670/13
AND 28 TH
JUDGMENT NO. LC/H……14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/94/14

HARARE ON 10thFEBRUARY, 2014			                         CASE NO. LC/H/670/13

AND 28TH  FEBRUARY, 2014

In the matter between

DAVID CHAMAHWINYA 					–	Appellant

And

IRVINES ZIMBABWE					–	Respondent

Before The Honourable L. M. Murasi, J.

For Appellant :	Mr A. Masango (Legal Practitioner)

For Respondent:	MrsR.T.L. Matsika  (Legal Practitioner)

MURASI, J.

Appellantwas in the employ of the Respondent. The facts are that he bought some meat products from Respondent’s workplace on the pretext that there was a traditional ceremony he was going to attend when in fact there were for sale. He was subsequently charged under the Employer’s Code of Conduct and dismissed from employment. His dismissal was upheld by the Arbitrator. Appellant is dissatisfied and has approached this Court for relief.

Appellant submits that he was not given an opportunity to be heard during the proceedings of the Disciplinary Committee. Appellant further states that the finding that he was vending was faulty as such evidence was not adduced before the tribunal. It was also submitted that the penalty of dismissal did not meet the justice of the case having regard to the nature of the offence.

Respondent takes issue with Appellant’s first ground of appeal noting that he cannot be heard to be saying that the audi alteram partem rule was breached when he was given an opportunity to be heard. Respondent also stated that the standard of proof in such circumstances is on a balance of probabilities and not beyond reasonable doubt. Respondent further stated that the penalty was appropriate having regard to the fact that this was a second offence.

The Minutes of the hearing of 2nd April 2013 reveal the following, firstly, that the Chair addressed the meeting and stated that the meeting was going to hear from Mrs Chirendo and then from the Appellant. Secondly, after Mrs Chirendo had given her statement Appellant proceeded to give his statement. Thirdly, the record shows that the Committee proceeded to put questions to Appellant. Witnesses were called to testify and Appellant given an opportunity to cross examine them. The record shows that the Appellant did not at any time indicate that he needed to call witnesses. He was afforded the opportunity to outline his defence to the charges. Can it be said that he was denied an opportunity to be heard? The record of proceedings militates against a finding of this nature.

The second ground of appeal was that the Disciplinary Committee erred in finding that he was guilty of vending as no evidence was adduced which showed that he was indeed vending. Respondent pointed out that the charge Appellant was facing was not vending but he was charged with conduct inconsistent with the terms and conditions of his employment. This included his behavior on the day he was allegedly arrested and his misrepresentations to his Manager, Mr Odendaal. The facts leading to the conclusion that Appellant was vending are that he took possession thirty five (35) kilograms of meat products and disposed of them in less than two weeks when he was brought before the Disciplinary Committee. It was an inference drawn from the facts presented to the Committee. His own uncle denied that Appellant brought any meat products during the traditional ceremony. Appellant’s Counsel conceded that Appellant misrepresented to Mr Odendaal that he needed the meat for a traditional ceremony when he knew that such ceremony had already been held. This was to facilitate his taking of the meat products. This confirmed that Appellant’s behavior on the day in question was inconsistent with the terms and conditions of his employment. Appellant is recorded as having had an altercation with the security guards at the workplace. Appellant’s responses as to how he had disposed of the meat were not credible. He stated that he gave part of the meat products to his in-laws, this was denied by his uncle. As to the rest of the meat products he alleged that he usually receives a number of visitors at his house.  The Committee chose to disbelieve him. Could it be said a return of a guilty verdict in the circumstances would be grossly unreasonable? I think not.

Appellant took issue with the fact that the penalty imposed on him was not commensurate with the charge that was preferred against him. The Arbitrator made the following finding:

“In light of a previous similar offence there is no doubt that the penalty of dismissal was appropriate.”

The issue of the ultimate penalty of dismissal was clearly captured in NAMPAK CORRUGATED WAPEVILLE VS KHOZA [1997] 2 BCLR 108 [LAC] at 113 F in the following manner:

“the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. A court should therefore not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction. The question is not whether the court would have imposed the sanction imposed by the employer but whether in the circumstances of the case of the sanction was reasonable.”

It seems to me the correct test to apply in determining whether a dismissal was fair is that enunciated by Lord Demning MR in BRITISH LEYLAND UK LIMITED VS SWIFT [1981] IRLR at 93 paragraph 11 which is;

“was it reasonable for the employer to dismiss? If no reasonable employer would have dismissed him then the dismissal was unfair. But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

The Court associates itself with the reasoning in the above quoted case and is of the view that it was reasonable to dismiss the Appellant.

As regards the whole proceedings as a whole, the Court does not find that there were any misdirections. The Court shares the view of NDOU J expressed in JONA NDALAMA VS CHIEF SUPERINTENDANT HAPPYMORE SIGAUKE AND COMMISSIONER-GENERAL HB 153/11:

“There has to be something grossly irregular in the proceedings to warrant such interference. The appellate court must never overlook that the trial officer’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective.”

The Court is therefore of the considered view that the decision to dismiss Appellant was proper having regard to the fact that he had previously been found guilty of a similar offence.

Respondent’s Counsel submitted that Appellant should be visited with costs as this was an abuse of the Court process. Punitive costs are normally awarded in cases where a litigant knows a case is hopeless and frivolous and shows carelessness and files for relief. The Court is of the view that the present matter does not fall into that category.

In the final analysis the Court finds that the appeal lacks merit and is accordingly dismissed.

Musunga & Associates – Appellant’s legal practitioner

Wintertons – Respondent’s legal practitioner