Goldberg Bepswa v Zimbabwe National Water Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/260/2014
HARARE, 11 FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/260/2014

HARARE, 11 FEBRUARY 2014 &			  CASE NO LC/H/733/2012

9 MAY 2014

In the matter between:

GOLDBERG BEPSWA							APPELLANT

And

ZIMBABWE NATIONAL WATER AUTHORITY			RESPONDENT

Before The Honourable B S Chidziva	:	Judge

For the Appellant		T Mafongoya   (Legal Practitioner)

For the Respondent	J Dondo   (Legal Practitioner)

CHIDZIVA J:

The appellant in this matter is seeking an order setting aside the arbitral award that was handed down by the Honourable N Mukwehwa on 22 August 2012. The award stated as follows:

“In the circumstances and in light of the arguments by the parties and the observations made herein I am convinced that the following will constitute a reasonable and fair award:

The Claimant is guilty as charged in that he contravened the provisions of S I 15/2006 section 4(a) and 4(f). The Claimant had no authority to take the pipes without due authorisation from his superiors as he did. As Loss Control Officer his act was inconsistent with his conditions of employment.

On demotion, the move between the grades is reduced to two grades downward. The Claimant is to be demoted from Loss Control Officer Grade C3 to Loss Controller Grade B4 with effect from the date the Claimant was first demoted to Grade B5. The Claimant’s salary is to remain unchanged to maintain the current status.

The demotion is for an indefinite period until such time when the Claimant can work his way up the grades based on performance and merit. This position has been taken after considering the fact that the Claimant is a first time offender.

I so award.”

The appellant’s grounds of appeal are that:

The arbitrator erred and misdirected himself on point of law in ruling that the appellant was properly charged in contravening section 4(a) and 4(f) when in actual fact there is no evidence to support the charges.

The arbitrator erred and misdirected himself on a point of law in ruling that a demotion penalty from grade C3 to B4 coupled with indefinite period and transfer was genuine and fair in the circumstances when in actual fact it was too excessive.

The arbitrator erred on point of law in ruling that the disciplinary committee considered the mitigation factors advanced by the appellant and the procedural irregularities have not been established when in actual fact they were proved by the appellant.

The respondent in response has told the court that:

The appeal should be dismissed as it is based on a question of fact and not law.

The appellant has not shown any serious misdirection on facts which amount to a misdirection in law.

The factual findings by the arbitrator are sound and cannot be attacked.

The appellant occupied a position of authority and one cannot possibly excuse the misconduct committed.

The respondent as a result prayed that the appeal be dismissed with costs.

The brief background of the matter is that the appellant is employed by the respondent. He was employed at the Mazowe Catchment as Loss Control Officer from 16 October 2006 to August 2011. It has been submitted that his duties involved safeguarding and protecting ZINWA resources from damages, theft and any other potential losses and hazards. It is alleged that in April 2011 during the Easter Holiday the appellant went to Goromonzi Water Supply Station and took away some pipes belonging to ZINWA without authority from his superiors. By then he was on study leave. It has also been submitted that he returned the pipes in May 2011 after investigations into theft of the pipes had commenced. The appellant was therefore charged with contravening section 4(a), 4(d) and 4(f) of S I 15/2006. A disciplinary hearing was conducted on 6 July 2011 and the appellant was convicted of contravening section 4(a) and 4(f). He was then demoted from the position of Loss Control Officer Grade C3 to the position of Water Bailiff Grade B5 and he was transferred to Mupfurudzi Dam workstation. The appellant then appealed to the arbitrator against this decision. The arbitrator also ruled in the favour of the respondent hence the appeal before this court.

It is common cause that:

In April 2011 the appellant took away the pipes as alleged.

The appellant returned them in May 2011.

When the appellant took the pipes he was on study leave.

Minutes show that the procedure to follow when collecting the pipes was not followed.

The appellant refused to call the Water Supplies manager as a witness.

What is to be decided is:

Whether the appeal raises factual issues or not.

If they are factual are the fact findings so unreasonable as to amount to misdirection at law.

Whether the penalty is excessive.

Section 98 (10) of the Labour Act [Cap 28:01] states that the Labour Court only hears appeals based on law and not fact unless there is a serious misdirection the facts that would amount to a misdirection in law.

EBRAHIM JA in the case of National Foods v Mugadza SC-105-95 stated that:

“It is true that this court only has jurisdiction to hear an appeal from the tribunal on a point of law. But clearly if there is a serious misdirection on the facts it amounts to misdirection in law. The giving of reasons that are bad in law constitutes a failure to hear and determine according to law.”

It has been established that the appellant took away the pipes without authority from the superiors. The pipes were also taken away during the Easter holidays. The Blair toilet project was non-existent and was not an approved project known by management. Section 4(a) states that:

“Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.”

Section 4(f) states that:

“Gross incompetency or inefficiency in the performance of his or her work.”

Given the facts of how the misconduct was committed both sections are competent acts that the appellant could be convicted of. This court is also of the view that his actions could also amount to acts of dishonesty which went to the root of the contract of employment. The value of the property is irrelevant. He held a position of trust which he abused. A penalty of demotion therefore can be taken to be on the lenient side.

Furthermore the arbitrator did not err at all in his factual findings. There was no misdirection at all on the factual findings.

In the light of the foregoing it is hereby ordered that as the appeal lacks merit it be and is hereby dismissed.

Matsikidze & Mucheche, appellant’s legal practitioners

Dondo & Partners, respondent’s legal practitioners