Elson Chiwambutsa v Coin Security

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/647/2013
HARARE, 2 APRIL 2013 &
6 DECEMBER 2013
CASE NO LC/H/733/2011
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/647/2013

HARARE, 2 APRIL 2013 &			  CASE NO LC/H/733/2011

6 DECEMBER 2013

In the matter between:-

ELSON CHIWAMBUTSA					APPELLANT

Versus

COIN SECURITY						RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Appellant		Z Mufanebadza (Unionist)

For the Respondent		L M Mangena (General Manager)

KUDYA J:

Judgment in this matter was reserved on 2 April 2013, but when the Court sat down to write the judgment, it discovered that the initial disciplinary proceedings were incomplete to the extent that, as per page 17 of the record, they only started with question five suggesting that there were prior questions which were missing. As a result the Court mandated the Registrar to ask for the complete record of the initial proceedings so that, the Court could decide whether or not the Appellant was dismissed in regular circumstances.

Despite repeated correspondences from the Registrar to the parties, nothing was forthcoming, until correspondence dated 28 October 2013 and some document purportedly written by the Respondent’s manager, dated 23 September 2013 found their way into the Court record.

For the Appellant’s part, he maintained that no proper hearing had been held hence, the absence of the documents. On the other hand, the Respondent maintained that, it was not clear about which documentation was needed by the Court. It, to that end, put into the record a variety of documents relating to what it called the various misdemeanours, which it claimed that, the Appellant had been engaged in during the period of his employ with the Respondent. It maintained that the attached documents, could demonstrate the kind of person who the Appellant was in the circumstances. It is only after 22 October, that the Court was able to write judgment in this case, given the above background.

This judgment therefore, addresses the issue of whether indeed the Appellant made out a good appeal case, when he had been dismissed from the Respondent’s employment following the writing of a letter which had words which were said to be of a threatening nature to his superior.

The words in question, were quoted from the vernacular as being the following “… musi watinosangana make sure uchandirova kana usina kundipa mari ye four days dzandaka apply idzodzo uchandirova”. A literal translation of words would be that, if the superior did not let the Appellant get his four days salary, the superior would have to beat up the Appellant or vice versa. These words were written in the context of an argument between the Appellant and his employers over his salaries etc.

The major question which therefore, had to exercise the mind of the initial adjudicator of the case and the subsequent appeals up to the present appeal is whether, or not these words can be said to have been of the threatening nature complained of by the Respondent. If they were, the other question is whether, their writing validly attracted a dismissal penalty?

The Appellant says these  words were not threatening and if the senior got threatened by them, he took them out of the context within which they were uttered that, is the context of an employee desirous of getting what he felt he justifiably deserved as his salary from the Respondent Company.

On the other hand, the Respondent maintains that the words were indeed threatening and that dismissal was called for in the circumstances. It also maintains that the Appellant’s conduct at the relevant time was characterised by rudeness hence, given that background, it was not unusual that it took a serious view of the utterances made by the Appellant in the circumstances.

Before concluding whether, the tribunals a quo exercised their discretion well, it is important to note that, after the Appellant’s appearance before the Designated Agent, he was dismissed from employment. He appealed to the Local Joint Committee which reinstated him but revisited its decision after it was brought to its attention that, there were certain documents which had not come to its attention to show that the Appellant was indeed of a violent disposition. When the Local Joint Committee reversed its reinstatement decision and confirmed the Appellant’s dismissal, the Appellant appealed to the Negotiating Committee (N.E.C) which once again confirmed his dismissal.

It is against the N.E.C’s decision that, the Appellant has now appealed to the Labour Court to have the dismissal set aside and that he be reinstated to his original position without loss of salary or benefits. The appeal ground is couched in these words:

“Appellant did not threaten to assault his superiors, if his grievance was not solved within the time Appellant wanted”.

In response the Respondent responded to the appeal in these words:

“E Chiwambutsa threatened his superiors saying, he was going to be assaulted if he did not get his money for four days duty. He lost his case, but because of who he is, he continues to appeal.”

The law relating to appellate powers of this Court, in relation to the exercise of discretion of the lower tribunals, is set out in the case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC). It is clear from the quoted case that, the appellate Court will only interfere with the factual findings of the lower tribunal if it is demonstrated that, the exercise of discretion by that lower tribunal was so outrageous that, no tribunal exercising its mind judiciously would arrive at such a decision on the given facts. It is not about the Appellate Court substituting its discretion for that of the lower court.

In the instant case the N.E.C says it upheld the Appellant’s dismissal because the Appellant does not dispute writing the words in question and in its view, the conclusion by the tribunals below it that, the words were calculated to inspire fear in the mind of the superior was well placed.

A re-reading of the record of proceedings, following the responses’ to the request for complete initial proceedings, would show that page 22A of the record seems to contain part of the question and answer exchange at the initial hearing recorded on page 17 of the record. That page, contains some question and answer exchange where the following was said:

Q	Why did you write a threatening letter to a senior person?

A	I wrote a letter to air my grievance that of payment of one’s payment of wages.

On page 17, the following exchange is contained:

Q6	What was the content of the letter?

A6	It was the duty of the superior to carry the message to the next senior.

Q7	You said “ucharova” what did you mean?

A7	The words may not have been correct or right but the issue or actual intent was to air a grievance of a perceived injustice.

It is on the basis of the above exchanges that, the tribunals below all concluded that the Appellant had admitted guilty to the infraction. The question however is, whether such a conclusion based on the quoted excerpts is a reasonable or rational one which does not call for this Court’s interference taking into account how the discretion was exercised by the lower tribunals.

What is apparent from the letter and the quoted question- answer exchanges is that the Appellant indeed wrote the words complained about. It is also clear that, he was unhappy about his salary issue. What is however, also clear is that, the use of the terms “you will beat me up”, clearly demonstrates that the Appellant was now threatening his superior. Demanding what he “felt was legally due to him, was one thing but to go on to making written utterances which in the mind of another would create the impression that, the author of the utterances was threatening the superior is surely objectionable conduct.

It is clear from the recording of the proceedings by the initial tribunal that, the hearing was shoddily done. Being that, as it may, the law is settled that, if the irregularities do not go to the root of the case, such can be let to pass or can be put right by doing the regular thing as required by the law. See Tichawana Nyahuma vs Barclays Bank Pvt Ltd 2000(1) ZLR 445(SC)

In any event, in the case of Air Zimbabwe v Mnensa SC-89-04, it was stated clearly that, a guilty person should not escape consequences of his misconduct due to technical niceties. It is clear from facts of the instant case that, on the face of the letter alone, one can clearly glean that the Appellant had gone beyond mere need to air his grievance but, was now threatening the superior. That per se demonstrates his guilt.

The process of arriving at the guilt conclusion is however, flawed as already been demonstrated above. The flawed process as indicated above was not of a magnitude that could vitiate the dismissal proceedings. A reading of the record does not show how the flawed process prejudiced the Appellant.

It is clear that, the appeal Court has no cogent basis to interfere with the decision of the tribunal a quo. The appeal should therefore accordingly fail.

IT IS ORDERED THAT:

The appeal being devoid of merit, it be and is hereby dismissed.

Each party to bear own costs.

L KUDYA

JUDGE – LABOUR COURT