Karuru Sam Modokayi v Zimbabwe Parks & Wildlife

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/796/14
HELD AT HARARE 28TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/796/14

HELD AT HARARE 28TH OCTOBER 2014		CASE NO LC LC/H/371/14

& 19TH DECEMBER 2014

In the matter between:-

KARURU SAM MODOKAYI				Appellant

And

ZIMBABWE PARKS & WILDLIFE				Respondent

Before The Honourable L Kudya, Judge

Appellant			In person

For Respondent 		R Mutetwa (Legal Officer)

KUDYA, J:

Appellant has appealed to this court against the decision of the respondent employer’s Appeals Committee which upheld his dismissal in a case where he was found guilty of falsifying records, forgery and fraud in contravention of the Zimbabwe Parks Wildlife Management Authority Code of Conduct.

The background of the matter is that appellant was in the employ of the respondent authority.  During his period of employed he enrolled with Masasa Training Centre where he was pursuing motor mechanic studies.  Such studies were sanctioned by the respondent employer.   Whilst he was on these studies he falsified and forged documents to enable him to claim more money than he was duly entitled to from the employer.

He was charged for the offences, appeared before a Disciplinary Committee where he admitted his guilt.  Following the admission of guilt he was penalised by dismissal from employment.   Aggrieved by the dismissal he took up his matter with the internal Appeals Authority.  The Appeals Authority ruled that dismissal was proper in his case.  Irked by the confirmation of the dismissal he has now appealed to this court where his appeal is the subject matter of the instant judgment.

His only ground of appeal was couched in the following words “The decision is too harsh as they did not take into account the mitigating factors.”  The response to the notice of appeal is not apparent on the face of the notice of response which was served on the respondent authority.  Being that as it may respondent filed with the court a letter dated 28 November 2011 advising appellant the fact that his internal appeal had been unsuccessful.  A reading of the letter together with the minutes of the Appeals Committee speak to the fact that the Appeals Committee was of the view that, notwithstanding the appellant’s first offender status the penalty of dismissal was appropriate in his case.

The law relating to such appeals is clear that is the appeal can only be sustained if it is shown that the exercise of discretionally the tribunal below was grossly unreasonable or malafides see Nyahondo v Hokonya 1997 (2) ZLR 475 (SC) and AG v Howman 1988 (2) ZLR 402 (SC.  Further to that the employer’s powers in relation to penalty are also settled See Malimanji v CABS 2007 (2) ZLR 327 (SC).  To the extent of the cases quoted above the question to be determined by the court is whether it has been demonstrated that the respondent employer’s Disciplinary Committee and Appeals Committee failed to exercise their discretion when they ruled that dismissal was appropriate in the appellant’s case.

Before dealing with the crux of this appeal it is worth noting that on the date of the hearing, the appellant brought up new issues challenging the procedural correctness of his dismissal.  He did so by raising the following issues;

Notice to attend hearing was premature being 2 days to hearing date thus limiting his time to prepare his defence.

Board of enquiry sat at his house thus infringing with his privacy and the freedom of his ill mother who was living there at the time

Respondent appeals body misinformed him that he had to appeal against their decision if he was unhappy with it within 7 days as opposed to the 21 day period which he subsequently found out to be the proper appeal period.  In the result he argued that his dismissal was to the extent of the above cited procedural arguments and the lip service paid to his mitigation it followed that his dismissal could not be sanctioned by the appeal court.

It is worth noting that the rules of court are clear that review and appeal issues are distinct procedures and these have to brought using the appropriate forms and rules etc.  Further to that it was also clear that these issues were coming up for the first time and none of them raised a point of law which could arguably be raised at any stage of the proceedings.  All this notwithstanding the court observed that appellant was a self- actor who could not have been expected to follow the strict rules of procedure in brining up his claim.  To that extent the court allowed respondent to respond to the procedural argument as obiter dicta.  It is to that extent that this judgment will also make reference to those procedural issues raised with a view to deciding whether or not it can be concluded that appellant’s dismissal was fair.  The peripheral issues will be disposed of and the judgment concluded by dealing with the main appeal ground raised by appellant.

Short Notice to attend hearing

It was observed by the court that appellant was notified of the hearing dates of November 1 and 2.  Respondent confessed that it was so but argued that appellant refused to sign the notification except the one which came 2 days prior to the hearing.   Appellant however could not provide proof of the document which he allegedly signed to that extent.  It was therefore apparent that the argument in this respect had no merit and it had to be dismissed.

Hearing of appellant’s …………

Evidence of the hearing minutes showed that hearing was done in the respondent’s library not at appellant’s house   Further to that, even if it were to be accepted that the board of enquiry was indeed done at his house there was no demonstrated prejudice vitiating the proceedings.  It is settled law that it is only technicalities which go to the root of a matter and prejudice appellant which can compel an appeal court to set aside or remit the proceedings of the lower tribunal.  See Nyahuma v Barclays Bank Zimbabwe Ltd 2000 (2) ZLR 445 (S).  As indicated above there was no demonstrable prejudice from the board of enquiry allegation hence the argument has to be dismissed.

Ill advice re-period of noting appeal

A reading of respondent’s Code of Conduct put the matter to rest by stating that appeals lie to the Labour Court within 7 days.  This  issue being settled by the code also means that the argument in its respect is not merited and should fall away.

Penalty of dismissal

This is the crux of appellant’s appeal.  As correctly argued by the respondent, offences committed by appellant and which he pleaded guilty to demonstrated dishonesty.  It was therefore not misplaced for the respondent to take a serious view of the misconduct complained of.

Indeed it is correct as appellant stated that the criminal case was not

decisive in his misconduct case but being that as it was the question still was whether it could be said that dismissal was misplaced in respect of the facts of the appellant’s case.  The fact that the appellant had  financial difficulties and that he hoped to get financial aid from respondent does not absolve him from the misconduct neither does it ameliorate meaningfully the gravity of the infraction complained about to the respondent.

As was stated on the case of Circle Cement v Nyawasha SC-60-03 where employer takes a serious view of the misconduct and decides to dismiss the employee, such dismissal shall not be faulted.  The principle applies with equal force to the facts of the case at hand.  There is no serious misdirection which can be said to have occurred when the lower tribunals exercised their discretion.  The appeal ground being without merit should therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed.

Each party to bear own costs