Edward Hambakachere v Zimbabwe Mining Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/15/14
HARARE ON 4TH DECEMBER, 2013
& 14TH FEBRUARY, 2014
CASE NO. LC/H/1016/12
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO. LC/H/15/14

HARARE ON 4TH DECEMBER, 2013

& 14TH FEBRUARY, 2014		           CASE NO. LC/H/1016/12

In the matter between

EDWARD HAMBAKACHERE				–	Appellant

And

ZIMBABWE MINING CORPORATION		–	Respondent

Before The Honourable Chidziva, J

For Appellant   : Ms R. Zvimba (Legal Practitioner)

For Respondent : Ms M.Magarimbo (Legal Practitioner)

CHIDZIVA, J

The Appellant is appealing against the decision of the disciplinary committee. The brief facts of the matter are that the Appellant was charged for forging a National Certificate for purchasing and Supply Management which he submitted to the employer for filing and consideration.

It was also alleged that on the 3rd of February 2010 the Appellant submitted to the Human Resources Department of the Respondent a statement of results for National Certificate for Purchasing and Supply Management obtained from Harare Polytechnic. The correspondence on the National Diploma in Purchasing and Supply were from the Top Grade College an agent of Harare Polytechnic.

The Appellant’s grounds of appeal are that:

The disciplinary authority erred in finding the Appellant guilty yet no relevant evidence was placed before it to substantially determine the issue constituting the offence. The only witness called did not know much about what he was giving evidence on save to rely on assumptive and speculative evidence.

The hearing authority failed to call real and absolute witnesses who could come to confirm or deny the allegations on the Appellant for instance the representative from Harare  Polytechnic and the Zimbabwe Mining Development Corporation officer who received the said fake certificates and or the Human Resources officer for Zimbabwe Mining Development Corporation who is the custodian of the files and at least the police officers who allegedly recovered that purported fake certificates.

The Board erred by finding the Appellant guilty based on  contradictory  evidence of the sole witness of the Respondent and unexplained documents which were heavily discredited at cross – examination such that the said sole uniformed witness by the Respondent failed to support them.

The disciplinary authority further erred when it relied on ultra-vires evidence viz the smuggled documents in the hearing, which documents did not exist at the time the hearing commenced such as the letter from Harare  Polytechnic.

The disciplinary authority erred by upholding the decision of the hearing Officer to dismiss the Appellant yet the latter had no powers to dismiss the Appellant. His duty is restricted to advisory but he could not take punitive action against the Appellant.

The Appellant was unfairly dismissed as the disciplinary authority misdirected itself by dismissing the exceptions or points in limine raised by the Appellant without giving them due weight.

The disciplinary authority erred when it found the applicant guilty for a charge where the Respondent failed to prove the essential elements of the charge. The said sole witness did not know what constituted the offence, he looked and appeared very puzzled during the procedures.

The Appellant therefore prays that the findings by the disciplinary authority be set aside and that he be reinstated to his position without loss of salary and benefits.

The Respondent in response told the court that:

The disciplinary authority made its findings on the basis of overwhelming evidence presented to it. This evidence included the letter from Harare Polytechnic College which indicated that the Appellant’s National Certificate in Purchasing and Supply Management was not authentic. Appellant failed to disprove the evidence against him.

It was not the hearing authority’s responsibility to call witnesses

The documents that were produced were not discredited.

The documents were not smuggled as they were discovered during the period of the further investigations.

Points in limine were dismissed as they did not have any merit.

Essential elements of the offence were proved. The Respondent therefore prayed for the dismissal of the appeal with costs.

It is common cause that;

A National Certificate in Purchasing and Supply Management was produced as evidence during the hearing.

The Appellant did not take any course at Harare Polytechnic College and the candidate number used belonged to a female Secretarial Studies student

The Principal of Harare Polytechnic was not called to comment on the authenticity of his letter.

What is to be decided in this matter is whether the Appellant committed the alleged offence or not.

The Appellant was charged with forgery and uttering. In the Code of Conduct it is defined as

“a) Falsifying or changing any document with

fraudulent intent, or attempting to do so.

Uttering, attempting to utter fraudulent or

false documents”

It has not been disputed that the charges on investigations only arose after some members of the Criminal Investigations Department had come to arrest the Appellant. The Appellant said that the arrest only came about because of his ex-wife who made a false report to the police.

The Respondent in their heads of argument told the court that the Appellant filed the papers at the Human Resources department. The Respondent told the court that Mr Makonese received the papers and filed them on behalf of the Appellant.However during the disciplinary proceedings Mr Mako                                       nese was not called to corroborate this statement. There was no letter or proof of acknowledgement by the Respondent that they had received the Appellant’s fake certificates. It was the duty of the Respondent to prove the Appellant’s leak to these certificates.

In the case of ZIMASCO vs CHIZEMA SC 38/07 it was held that;

“The court is not there to formulate charges or cases for litigants. In cases of this nature the court’s brief is to determine, on the basis of evidence placed before it, whether or not a case has been proved against the respondent. It needs no emphasis that he who alleges anything against another person must prove such allegation……….”

The evidence that has been adduced before this court does not prove the charges that were laid against the Appellant. There is no evidence that the Appellant falsified documents. There is no evidence that the Appellant then filed the falsified documents at his workplace.

It is this court’s view that the appeal has merit.

IT IS THEREFORE ORDERED THAT

The appeal is allowed

The Respondent reinstates the Appellant to his original position without loss of salary and benefits.

If reinstatement is no longer tenable the Respondent should pay Appellant damages in lieu of reinstatement.

Parties should agree on the quantum of damages

If parties fail to agree on the quantum of damages they should approach this court for quantification of damages.

Each party to bear its costs.

Mupindu and Mugiya Law Chambers	-	Employees Legal Practitioners