Kingstons Limited v Shepherd Mudzingwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/624/16
HELD AT HARARE 27 MAY 2016
CASE NO
JUDGMENT NO LC/H/624/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/624/16

HELD AT HARARE 27 MAY 2016				CASE NO LC/H/684/13

&  7 OCTOBER 2016

KINGSTONS LIMITED				Appellant

SHEPHERD MUDZINGWA				Respondent

Before The honourable G Musariri, Judge

For Appellant			K Musoni, Attorney

For Respondent			T Goro, Attorney

MUSARIRI J:

On 20 August 2013 Arbitrator T R Madzimure issued an arbitration award.  He inter alia ordered appellant to reinstate respondent in its employ.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.

Appellant’s case is set out in its grounds of appeal as follows,

“2.1 This appeal is on a question of law.  The court has to decide whether the instruction issued to respondent is lawful or not.

2.2 it is submitted that the instruction to reveal the name(s) of people allegedly involved in criminal activities at Masvingo branch was lawful.

2.3 the misconduct of wilful disobedience to lawful instructions arose after respondent received written instructions to address information deficiencies which were in his report.

2.4 it is claimant’s contention that the concealment of name(s) and refusal to mention anyone by name constituted serious misconduct on the part of the employee, the respondent.

He had no lawful reason to hide the information.”

Respondent’s heads of argument addressed the issue thus,

“4. On 21 September 2012 the respondent compiled an interim report addressed to Keys Accountant Manager Mr Chigombe highlighting  his genera findings pending reports from the Key Accounts Manager, Finance Manager and General Manager whose reports would assist him in substantiating anomalies he had unearthed in the administration of work at the Masvingo branch.

5. In the respondent’s report, he mentioned that he could not name the perpetrators of the irregular activities at the Masvingo branch.

6. In a Memorandum dated 5 October 2012 from Mr Chigombe, the respondent was compelled to submit all his findings and all the criminal activities that he had unearthed.

7. On 20 September 2012 another follow up was done by Mr Chigombe to which the respondent responded highlighting that if his findings from the Masvingo report were viewed as serious criminal activities to the company, corrective measures had to be carried out on the culprits involved.”

Respondent’s report dated 21 September 2012 is filed of report.  It sets out in detail the anomalies he noted at appellant’s Masvingo branch.  It does so over four (4) pages.  It is the concluding paragraph, which gave rise to this case.  It read

“I am sorry I should have submitted a comprehensive report but as the company has rejected the Security Policy then i am not in a good position to divulge sensitive criminal activities.  The reporting structure does not give me the mandate to go beyond this.”

This led to the charge that respondent refused to disclose names of the persons engaged in the “criminal activities” despite instructions to do so.  A reading of the report shows that respondent did set out in detail the anomalies he noted.  It mentions the people involved by their titles and names.  In that context it becomes unclear as to what further names appellant expected.  The reference to “criminal activities” in the last paragraph of the report is rather vague.  It is unclear whether it meant acts not dealt with in the report.  Neither is it clear whether it was reference to criminal activity in general or in the abstract.  One cannot say the employee concealed vital information in this case.  In these circumstances I am persuaded to agree with the arbitrator that the alleged misconduct was not proved.

Wherefore it is ordered that,

The appeal be and is hereby dismissed, and

Each party shall bear its own costs.

G MUSARIRI

JUDGE