Ebson Chinyemba v Zimbabwe Electricity Transmission and Distribution Company (ZETDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/142/2020
HARARE, 3 APRIL, 2020
CASE NO. LC/H/885/15
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/142/2020

HARARE, 3 APRIL, 2020			      CASE NO. LC/H/885/15

AND 3 JULY, 2020

In the matter between:

EBSON CHINYEMBA							APPELLANT

Versus

ZIMBABWE ELECTRICITY TRANSMISSION

AND DISTRIBUTION COMPANY (ZETDC)				RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:				Tafadzwa Njenda, Trade Unionist

For Respondent:				I. Chisanjo (Labour Officer)

KACHAMBWA J:

This is an appeal against the Respondent’s decision. The appellant was employed by the respondent as a technician. In the course of his duty he went to work on a fault at Peterhouse, whereas the papers said that he worked at Dombi Farm. It was found out that the Appellant’s papers were not in order. Investigations were instituted. He was asked to write a report and he did. Later he was asked again to write a more detailed report. He refused and referred the investigator to the earlier report. Investigations established that no work was carried out at Dombi Farm.

The Appellant was charged of two acts of misconduct in terms of the company code of conduct. The first charge was one for willfully withholding information or giving

false information or misleading information during any investigations of a company or organization including disciplinary and grievance matters. The second charge was one of falsifying an official record of the company. This was in connection with the documents that were signed for work at Dombi Farm whereas no work was carried out at Dombi Farm.

The Appellant was called to a hearing. During the hearing his worker representatives walked out of the hearing. He did not ask for a postponement in order for him to seek alternatives. The hearing was completed without any representatives for him. He was found guilty as charged. He addressed in mitigation. Nevertheless a penalty of dismissal was meted. His internal appeal failed.

The Appellant has appealed to this court on four grounds. These are that-:

1. 	The disciplinary committee was improperly constituted as he was not

represented.

2.	The charge of willfully withholding information was not proved on a balance of probabilities.

3.	The charge of falsifying a document was not proved as the evidence was insufficient. There should have been called a handwriting expert to prove that Appellant wrote the card in question.

4.	The appeals committee erred by not considering the mitigating factors which factors should have led to a lesser penalty rather than dismissal.

IMPROPERLY CONSTITUTED COMMITTEE

The committee was originally properly constituted. It only became improper when appellant’s representatives walked out. It is very surprising that any representative is still doing that. It is even more surprising that any affected employee does not ask for a postponement in order to get alternative representatives. When this happens the hearing carries on. These courts have emphasized over and over again that walking out does not make the committee stop the hearing. By walking out a party is simply denying itself the right to be heard or to be represented. It is up to a party to ask for an opportunity to get new representatives. Where the party does not seek such opportunity the party is taken to have agreed to continue.

In the case of Pacprint (Pvt) Limited v Pilani Kumbula and 10 others SC 67/17, MAVHANGIRA AJA (as she then was) thoroughly discusses the cases on deliberate failure to attend a hearing either through representatives or personally. It is made abundantly clear that it is the duty of the employee to attend or seek a postponement in order to organise representation. One may not raise the issue of the committee not being properly constituted unless he/she plays his/her part. At page 7 of the cyclostyled judgment the Hon Judge says that;

“The respondents ought to have requested the assistance of the workers’ committee in the disciplinary proceedings. They did not do so. They did not assert their right to be represented by the workers’ committee. They rather opted to also not attend and they absented themselves. They cannot now, in these circumstances, be heard to say that the proceedings are a nullity on the basis that the workers’ committee did not from part of the disciplinary committee that sat”.

This case applies to the present case with equal force. The complaint on the composition of the disciplinary committee does not have merit. It must be dismissed and is accordingly dismissed.

It would also be pointed out that this ground of appeal is in reality a procedural issue which should otherwise be a review issue.

Wilfully Withholding Information

The appellant admits to not giving the information as requested. He tries to justify it by saying that he had already given the information after another request by another investigator.

Be that as it may the point remains that investigators may see things differently and therefore will require that an employee answers as requested. An employee who has nothing to hide is unlikely to be difficult in giving information as requested. In this case to the extent that the Appellant did not give the information as requested the finding of fact is well found. There is nothing grossly unreasonable about that finding of fact. The appellant was expected to co-operate. See for example British American Tobacco Zimbabwe v Jonathan Chibaya where failure to co-operate worked against the appellant. It may not be reversed. The ground of appeal is accordingly dismissed.

We cannot emphasise it in any way better that an appeal court is not there to scrupulously look into the decision of a lower court with a view to picking up all manner of mistakes in order to reverse that court’s decision. There has to be gross unreasonableness in the finding. Many cases have emphasized this already.

For example in Della Beverages v Sarah Kaluwe SC 6/19 the Learned Judge refers with approval to the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 and says that at page 11 of the cyclostyled judgment.

“A court of appeal is in general not at large to interfer with the decision (on issues?) of a lower court  or tribunal on issues of fact unless it finds that the lower court was guilty of a misdirection which amounts to irrationality”.

3. 	NOT ENOUGH EVIDENCE OF FALSIFICATION OF A DOCUMENT

This is another challenge on a finding of fact. For that reason we have to look at the probabilities. As adequately analysed by the Appeals Committee the denial of the signature hence the call for a handwriting expert is an afterthought. If indeed this was not his document that would have been the first port of call. It comes in as an afterthought. His conduct when confronted with the document does not support his claim. Further, the surrounding evidence does not support his case. It was for him to challenge that evidence right from the beginning.

In the result the finding of guilty is not far fetched. It is in line with the evidence on record. There is no gross misdirection on the facts. The ground of appeal must be dismissed and is accordingly dismissed.

4.	FAILURE TO CONSIDER MITIGATION

The Appellant claims that the misconduct did not warrant a penalty of dismissal, that had the Respondent considered the mitigatory factors a lesser penalty would

have been imposed. The Appellant’s argument is based on the fact that neither the disciplinary/hearing committee nor the appeals committee specifically mentioned the mitigatory factors before imposing the penalty or confirming it. That is a purely technical point. After hearing the Appellant in mitigation and after the appeal based on the point one expects that the issues would be considered. The Appellant has not argued that the misconduct was not serious or that it did not go to the root of the employment. His argument is simply that had mitigation been considered a lesser penalty should have been imposed. He advocated for a final written warning. He implored this court to impose a penalty of a final written warning.

The issue of a penalty is one of discretion of the employer. Technically, in this case the appellant is saying that there is no question of discretion but that the employer did not consider mitigation which mitigation should have led to a penalty of a final written warning He now asks this court to impose such a penalty if the convictions are confirmed. The convictions have indeed been confirmed.

Coming to the penalty it is this court’s considered view that a penalty of dismissal is appropriate. The mitigating factors are not such as to warrant a penalty of less than dismissal. These are very serious acts of misconduct. They are premeditated. They have negative financial implications to the employer’s business. It is fraudulent of an employee to record that he is going to client x when in fact he is going to what is infact a private client!  A penalty of dismissal is appropriate and there is a serious betrayal of trust. Further the Appellant is certainly not repentant. Rather he has sought to augment his fight at every stage. This is certainly not a case for a final written warning.

In the result of this case it is held that;

The appeal be and is hereby dismissed with costs.

Baera and Company		-	Respondent’s Legal Practitioners