Dunhuramambo (Pvt) Ltd v Pedzisai Nzondo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/556/16
HELD AT HARARE 15 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		            	JUDGMENT NO LC/H/556/16

HELD AT HARARE 15 JUNE 2016				CASE NO LC/H/1133/15

& 9 SEPTEMBER 2016

DUNHURAMAMBO (PVT) LTD				Appellant

PEDZISAI NZONDO						Respondent

Before The Honourable G Musariri, Judge

For Appellant			P Chakanyuka, Attorney

For Respondent		P Nzondo, Respondent

MUSARIRI J:

On 14 December 2015 at Harare, labour officer B Chikwanha made a ruling which ordered appellant to reinstate respondent’s employment.  Appellant then appealed to this court against the ruling.  Respondent opposed the appeal.

Appellant’s heads of argument set out the factual background thus,

“1.1 The respondent was engaged as a security guard in August 2009.  Respondent was caught sleeping on duty which incident was also captured on mobile phone video camera.

1.2  Respondent was brought before an internal disciplinary hearing in terms of S.I. 124 of 2003, and was found guilty and dismissed from the employ of the applicant since he was already sitting on a final written warning for the same offence on 10 April 2014.

1.3 Respondent lodged an appeal against the employer’s determination.  After failed conciliation attempts at the Ministry of Labour, the matter was referred to a labour officer for arbitration who ruled that respondent had been unlawfully dismissed since applicant had failed to produce the recorded video footage during arbitration showing respondent sleeping on duty.”

The labour officer (L.O.) ruled that,

“. . . I cannot confirm the respondent’s decision to dismiss without seeing the evidence that he used to come to that verdict.”

By that he meant that appellant failed to produce the aforesaid video.  I consider that this is where the labour officer grossly misdirected himself.  The video was not the sole evidence of respondent’s misconduct.  Minutes of the disciplinary hearing are filed of record.  The relevant portion read as follows,

“Dean Kloppers:  It was on the 1 April when he decided to go on a security guard routine check.  Dean then took Admire to accompany him on the check.  They drove to Shumba, checked the Big Shumba first went around the garden: there was still no sign of a security guard.  They walked to the small Shumba, which is where they found Pedzisai sleeping on a bench.”

Kloppers and colleague filmed respondent whilst he was sleeping on the bench.  The video was produced during the disciplinary hearing.  The video was no longer available when the matter was later referred to the labour officer.

The labour officer fell into grievous error by treating the video as the sole evidence of respondent’s misconduct.  The statement by Kloppers was sufficient evidence of the misconduct.  The self-serving denial of misconduct by respondent was disbelieved by the Disciplinary Committee (DC).  The labour officer was not required to re-hear the matter.  He was simply required to assess whether the Disciplinary Committee had properly convicted respondent.  The Disciplinary Committee had properly convicted respondent.  Thus there was no valid basis for the labour officer to reverse their verdict.

Wherefore it is ordered that;

The appeal be and is hereby allowed;

The ruling by labour officer B Chikwanha is set aside; and

The dismissal from employment of respondent by appellant is upheld.

G. MUSARIRI

J U D G E