Ellen Nyamanhindi N O v Irvines Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC /H/737/2016
HARARE, 14 OCTOBER 2016 &
18 NOVEMBER 2016
CASE NO LC/H/LRA/138/2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC /H/737/2016

HARARE, 14 OCTOBER 2016 &				CASE NO LC/H/LRA/138/2016

18 NOVEMBER 2016

ELLEN NYAMANHINDI N O					             APPLICANT

IRVINES ZIMBABWE (PVT) LTD					RESPONDENT

Before the Honourable G. Musariri, Judge

For the Applicant	Ms E Nyamanhindi  (Applicant)

For the Respondent     Mrs R T L Matsika (Respondent)

MUSARIRI J:

On 1st July 2016 at Harare, the applicant made a ruling in her official capacity as a Labour Officer. She ordered the respondent to reinstate Artwell Madhunguyo in its employ. The applicant then applied to this court for the confirmation of her ruling. The respondent opposed the application.

Madhunguyo worked for the respondent as a supervisor in Harare. He was charged with misconduct. Same arose from a case where a colleague named Moses allegedly stole day-old chicks and sold same to a customer commonly known as Keda. Keda implicated Madhunguyo as the one who came to her residence in his vehicle with Moses carrying the chicks.

A hearing was held by the respondent. The case against Madhunguyo comprised Keda’s statement, audio video recordings together with Moses’s written statement wherein he admitted the theft. He was found guilty and dismissed from employment.

Madhunguyo then appealed to the applicant. The applicant opined as follows:

“Whilst labour matters are decided on a balance of probabilities, where the allegations against the employee involve some criminal connotations, the respondent ought to prove its case beyond reasonable doubt. Failure to discharge this burden means that the employee is automatically entitled to a not guilty verdict."

On that basis she found that there was “no direct evidence … to ascertain that Madhunguyo committed the crime. As a result she quashed the conviction and ordered his reinstatement.

The respondent’s attorney drew my attention to the case of                                     Zesa v Dera 1998 (1) ZLR 500 (S) 503 E – F where McNALLY JA stated that:

“It is startling and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities.” The underlining is for emphasis

The case re-stated the position that a labour matter, like any civil case, is determined on a balance of probabilities. Thus the applicant grossly erred when she required proof beyond reasonable doubt, of Madhunguyo’s guilt.

Secondly the applicant erred in her assessment of the evidence. Keda’s evidence was to the effect that Moses and Madhunguyo brought the stolen goods to her residence. They used Madhunguyo’s vehicle. They discussed payment for the goods. A dispute arose during which she noted the vehicle’s registration number. She also recorded the incident on her cellphone. The vehicle turned out to be registered in Madhunguyo’s name. The applicant rightly treated Keda as an accomplice. However she erred in discrediting the evidence. Keda was corroborated by the surrounding circumstances. She had not met Madhunguyo before. Yet the vehicle number she recorded traced back to Madhunguyo through records at the Central Vehicle Registry (CVR). Madhunguyo’s voice captured on Keda’s phone, was identified by his superior at the hearing. In any case Keda had no known motive for falsely implicating Madhunguyo. They had no prior dealings which might provide a motive for a false implication. She stated that she clearly saw him when he brought the chicks because of clear lighting at her home. She could also identify him a month later at the disciplinary hearing. I am satisfied that these are circumstances which discounted the dangers of relying on an accomplice’s evidence. The applicant ought to have found that the misconduct had been proved. Accordingly her ruling cannot be confirmed.

Wherefore it is ordered that

The application for confirmation be and is hereby dismissed;

The ruling made by the applicant dated the 1st July 2016 is set aside; and

The dismissal from employment of Artwell Madhunguyo by the respondent is upheld.

G Musariri

J U D G E