Frank Mupfumira v Harare Municipal Medical Aid Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/37/2023
HARARE, 22 NOVEMBER 2022 &
30 JANUARY 2023
CASE NO LC/H/798/22
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/37/2023

HARARE, 22 NOVEMBER  2022 &		   CASE NO LC/H/798/22

30 JANUARY 2023

In the matter between:-

FRANK MUPFUMIRA					APPELLANT

HARARE MUNICIPAL MEDICAL AID SOCIETY	RESPONDENT

Before the Honourable Kudya J

For the Appellant			Ms T. Barangwe  (Unionist)

For the Respondent			K. Masiyenyama (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent’s appeals officer who confirmed appellant’s guilt and penalised him with dismissal.

The background to the matter is that appellant attended a business workshop at Chinhoyi University hotel.  After the workshop proceedings and after a cocktail which was given by his employer, appellant together with plus 14 colleagues congregated in a colleague’s room  drinking and smoking and playing to loud music.

Some ten months latter he was called for a hearing to answer to the allegations  ensuing from their congregating in the room, drinking, smoking dagga and dancing to loud music. Unhappy with the outcome of the disciplinary proceedings he has now approached this court to set aside the guilty verdict and dismissal penalty.  His prayer is that he be reinstated to his original position or that he be paid damages in place of reinstatement if reinstatement is no longer tenable.

He takes the following grounds

The Appeals officer erred and misdirected himself at law in finding the Appellant guilty of the charges put to him when the evidence had failed to establish his guilt on a balance of probabilities.

The Appeals Officer erred and misdirected himself at law when he upheld the dismissal of Appellant for an offence in which Respondent did not suffer any prejudice.

The Appeals Officer erred and misdirected himself at law by upholding the dismissal of Appellant when the Hearing Officer entirely depended on evidence led from witnesses that were interested parties.

The Appeals Officer erred and misdirected himself at law by upholding the dismissal of Appellant when it was Respondent who bought the alcohol.

The Appeals Officer erred and misdirected himself at law by upholding the dismissal of Appellant for a mater dealt after 10 months.

In the result he prays that the appeal succeeds  that the decision of the appeals officer be set side and substituted with reinstatement without loss of salary and benefits from the date of suspension.  In response the respondent maintained the following

AD GROUND OF APPEAL 1

4.	It is submitted that Appellant’s first ground of appeal is devoid of merit

5.	Appellant’s misconduct was proven on a preponderance of probabilities in that;

5.1	Appellant was positively identified by two witnesses as a participant in the activities that occurred in room 114 CUT Hotel.

5.2	There is corroborated evidence that Appellant smoked marijuana whilst in room 114 CUT Hotel.

5.3	It is an undisputed fact that the gathering in room 114 CUT Hotel was in violation of the covid 19 restrictions that were in place at the material time.

6.	It is submitted that from the record of proceedings, the essential elements of the misconduct charge that was preferred against Appellant were satisfied as it was proven that appellant put respondent’s name into jeopardy through his conduct.

AD GROUND OF APPEAL 2

7.	It is clear from the record of proceedings that the Appellant’s conduct was grossly inconsistent with the fulfilment of the implied terms of his employment contract thus prejudicial to Respondent’s interests.

8.	Suffice to state that prejudice maybe actual or potential.

9.	Appellant’s proven misconduct has the effect of soiling Respondent’s image and the conduct complainant and is such prejudicial to Respondent.

10.	The second ground of appeal is as such meritless.

AD GROUND APPEAL 3

11.	This ground of appeal is devoid of merit as there is no evidence that the witnesses who testified in the matter against Appellant had an interest in same.

12.	There was consistency in the evidence of all three witnesses who testified against Appellant during the disciplinary proceedings.

13.	Suffice to state that one of the witnesses in the matter was not involved in the activities of room 114 CUT Hotel and yet his evidence is consistent with that of the other two witnesses.

14.	Further, the evidence of the witnesses who testified against Appellant is corroborated by Appellant’s witness and as such the allegations of interest are misplaced

AD GROUND OF APPEAL 4 AND 5

15.	The Appellant’s fourth and fifth grounds of appeal are devoid of merit as the grounds do not raise point of law or address the findings by the Hearing Officer on issues of law.

16.	The fact that Respondent bought alcohol for its employees during the cocktail party has nothing to do with the activities of room 114 CUT  hotel which led to a misconduct hearing.

17.	Respondent did not sanction the violation of covid 19 restrictions through crowding in room 114 CUT hotel nor did he provide or sanction smoking of marijuana by Respondent.

18.	Further, the passage of time before institution of disciplinary proceedings is also irrelevant to the fact in issue, which is Appellant’s proven misconduct.

In the result the respondent prayed that the appeal be dismissed with costs. Each of the appeal

grounds is discussed below:-

Ground 1

In this ground appellant argues that proof on a balance of probabilities was not tendered. For

The test See ZESA v Dera 1998(1) ZLR 500(s). The respondent maintained that 2 witnesses

and a participant to the activities in room 114 CUT Hotel gave evidence associating appellant

with the allegations. It need be noted that it is common cause that appellant was indeed in the

room concerned where smoking and drinking was taking place.  The only point of departure

between appellant and the witnesses was whether he indeed smoked dagga as the others or not.

It is also undoubted that gathering in that little room was in violation of the COVID regulations.

The respondent thus reasoned that on account of these actions the name of the respondent had

been put into disrepute. It need be observed that there was no complaint from anyone the hotel

included to the extent that whatever happened in room 114 remained private to that extent.

The respondent sought to persuade the court on the authority of Makwiro Platinum

Mines  v Parodzayi SC-46-04 and Tanganda Tea Company Ltd  v Mvududu  SC-1-07

to suggest that since the appellant and colleagues were  booked on the employee’s account they

were thus answerable to the employer for their actions.  The court wishes to distinguish the

facts in Paradzayi Supra and Mvududu (Supra) in that in the mentioned cases there were parties

who were offended by the conduct of the wrongdoers to the extent that liability extended to the

employer.  In the case at stake no such complaint existed hence the matter is distinguishable to

that extent. The court find no plausible basis to sustain the reasoning on the matter given the

fact that the evidence fell short of the complaint etc.  In that regard the court is satisfied that

the events were private and had no extension to the employer.  The ground should therefore

stand.

Ground 2

As indicated in ground one above there was no demonstrable prejudice to the employer or

anyone else. This is fortified by the absence of a complaint even from the hotel.  The ground

is also with foundation.  It should therefore stand.

Ground 3

The bulk of the evidence tendered indeed came from  interested witness if regard is  had to the

fact that some of them were even participants in room 114. Granted one was not party to the

activities but as stated earlier all the witnesses told the court was almost common cause regard

being had to the fact that the difference only lay in the details  e.g. whether or not appellant

also smoked dagga. It was clear that the case was built on those almost common cause events

from witnesses who also participated in the activities. The grounds is thus merited and should

succeed.

Ground 4

The prelude to the activities in room 114 was the cocktail where the appellant and colleagues

had partaken alcohol paid for by the respondent.  It was however stated for the record that

beyond the cocktail the appellant and colleagues succeed sourced their own alcohol hence it

would be wrong to blame respondent for the alcohol consumed in 114.

The ground being without foundation should fail.

Ground 5

The delay in the matter raises a number of questions. Whilst there is no set period within which

the charges should have been proffered it is apparent that 10 months was indeed inordinate to

come up with the allegations where there was no streak of a complaint from anyone. The

ground also being well placed should succeed. In conclusion it is noteworthy that the fact that

smoking dagga is illegal and that COVID regulations were violated that of its own can not

suffice to found the appellant’s guilt.  In the result the court is satisfied that in the main the

appellant’s guilt was not arrived at properly.  It should thus be vacated.

IT IS ORDERED THAT

Appeal being merited it be and hereby succeeds.

Appellant’s guilt verdict and penalty be and hereby are set aside and replaced with an order

that appellant be reinstated to his original position without loss of salary or benefit. If that

is not feasible he is to be paid damages in place of reinstatement on an agreed sum between

the parties or to be set by the court on application.  Each party bears own costs.

Chikwangwani Tapi Attorneys, Respondent’s Legal Practitioners