L. Sigauke N.O. v Kundai Gova & Zimbabwe Broadcasting Corporation (Pvt) Ltd

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/139/24
HELD AT HARARE 19 JANUARY 2024
CASE NO. LC/H/283/21
AND 27 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE
LC/H/139/24

HELD AT HARARE 19 JANUARY 2024
LC/H/283/21

AND 27 MARCH 2024

IN THE MATTER BETWEEN:-

L. SIGAUKE N.O.
AND
KUNDAI GOVA
ZIMBABWE BROADCASTING CORPORATION
(PVT) LTD

APPLICANT

FIRST RESPONDENT

SECOND RESPONDENT

Before Honorable Mr. Justice L.M. Murasi

For Applicant    Mr. J.T. Gundumura
For First Respondent Mr. C. Mateza
For Second Respondent Ms. T. Kachara

MURASI J.,

This is an application for confirmation of two draft rulings in terms of section 93 (5a) of the Labour Act, (Chapter 28:01). Applicant was represented by Mr. Gundumura.

Mr. Gundumura, in motivating the confirmation of the application, stated that he abided by the documents filed of record and urged the Court to confirm the draft rulings.

Mr. Mateza, for First Respondent, stated that he also abided by the documents filed of record on behalf of First Respondent. He further stated that the two draft rulings by the Applicant were sound and beyond reproach. In respect of the first draft ruling, he submitted that it had been alleged by Second Respondent that First Respondent had not brought the document in question to the attention of her superior. He further submitted that the document was found locked in the superior’s safe. He further submitted that Second Respondent had sought to argue that the document had not been marked “F” which meant that First Respondent had been instructed to file the document. *Mr. Mateza* pointed out that the said document had not been produced before the tribunal a quo. It was further pointed out that there was no investigation conducted by the Second Respondent as prescribed in the Second Respondent’s Code of Conduct as this could have assisted its case. *Mr. Mateza* submitted that Second Respondent relied on the evidence of Mrs. Muchengwa who was First Respondent’s superior but said that her evidence was supposed to be treated with caution as she had every reason to falsify evidence. He said this was because Mrs. Muchengwa had an interest in the matter and could not give independent testimony.

In respect of the second draft ruling, *Mr. Mateza* stated that the quantification was above board. He submitted that First Respondent was able to demonstrate that she had attempted to mitigate her damages upon being dismissed. He also stated that First Respondent had given cogent evidence in respect of her entitlement to back-pay and leave days that had accrued to her. He also stated that the 18 months granted as damages in lieu of reinstatement were not irrational in the circumstances.

Ms. Kachara, for the Second Respondent, submitted that she would abide by the documents filed of record. She stated the procedure which was supposed to be followed on receipt of documents by the First Respondent. She stated that First Respondent’s duty to file any document arose only after being given instructions by Mrs. Muchengwa. She argued that as the document was found in the safe, the only conclusion was that it was the First Respondent who had filed the document in question. Asked by the Court as to who had access to the key to the safe, her response was that both Mrs. Muchengwa and the First Respondent had access to the key to the safe though it was kept in Mrs. Muchengwa’s office.

As far as the second draft ruling was concerned, *Ms. Kachara* stated that an employee had the duty to mitigate her/his damages upon dismissal. She argued that no evidence was adduced to show that First Respondent had attempted to mitigate her damages. She stated that she was aware of Supreme Court judgments which referred to the economic meltdown. She argued that the figure arrived at by the Applicant was not correct in the circumstances. She urged the Court grant the figures as given in Second Respondent’s Opposing Affidavit. She stated that First Respondent earned a monthly salary of US$851-69 at the time of her dismissal. She argued that the damages should be payable in Zimbabwean Dollars.

**ANALYSIS**

**FIRST DRAFT RULING**

Most of the facts in the matter are common cause. It is known that a document was delivered at Second Respondent’s offices which were in connection with Second Respondent’s employee by the name of Tazzen Mandizvidza. These documents were indeed court documents requiring the attention of the Second Respondent. A decision was made by the Court as Second Respondent had failed ti file any response as required. In the process of applying for rescission of the judgment issued in default, it was discovered that the documents were indeed served on Second Respondent. The documents were found in Mrs. Muchengwa’s safe. They bore First Respondent’s initials and they were date-stamped by the First Respondent. Second Respondent was of the view that First Respondent was culpable and proceeded to prefer charges of misconduct against her. The matter ended up with the Applicant.

I am of the view that it is pertinent to reproduce Applicant’s findings in this regard. They are as follows:

“The parties both testified that the receiving executive assistant receives the copy and appends a signature on the copies. The respondent’s testimony is that she would place copies on the Corporate Secretary’s desk for her instruction. The complainant’s position is that the employee had to make copies of the received documents for further action. There is no document or policy that defines how the executive secretary is supposed to handle her work or that stipulates the standards of procedure to be adopted by the employee in the execution of her duties. It is not disputed by the parties that the Corporate_Secretary would mark “F” for filing on documents that needed filing. The respondent argues that the urgent chamber application in issue was indeed marked “F” and she did file it away. The said document was not availed to the tribunal by the alleging party probably because it is in the custody of the employer. The claimant in the matter_challenges the respondent to produce the evidence. It is not in dispute that there is no suspicion that the employee could have smuggled the document into the safe as no allegation to that effect has been raised. In the absence of clear implied as well as expressly laid down procedure on handling of pleadings, the employee cannot be found to have acted in a manner that is inconsistent to the terms of her contract of employment neither can she be found to have neglected her duties.”

Precedent has shown that an appellate court or one imbued with the jurisdiction to review proceedings of a lower tribunal, can only interfere with the factual findings of that tribunal where there is evidence of a misdirection or that the decision was so irrational that a reasonable tribunal would not have arrived at such a decision on the same facts. In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) it was stated as follows:

“It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution..”

It appears to me that the tribunal a quo exercised its discretion judicially which does not warrant any interference by this Court. The fact is that the Second Respondent was enjoined to prove its case on a balance of probabilities. The Applicant made the observation that the document in question was not produced before the Tribunal. Further, the policy procedures guiding the First Respondent in the normal course of her duties were not produced. As observed by the Applicant, these would have clearly shown that First Respondent had not complied with the standard operating procedures required of her.

This brings me to the issue of whether Second Respondent adduced enough evidence to prove the case on a balance of probabilities. As noted by the Applicant, what Second Respondent provided were mere allegations of First Respondent’s alleged wrong-doing. First Respondent was asked to write a report on the matter. Her report to the Corporate Secretary is dated 30 January 2019. She indicates in that report that she received the document on 12 December 2018 and placed it on the Corporate Secretary’s desk. The following day she was away. On the 14th December 2018 when she was back at work she was asked to prepare the boardroom for the hearing of Mr. T. Mandvizdza, the person who was the subject of the urgent chamber application received on 12 December 2018. She averred that she thereafter was given instructions to file the documents INCLUDING the document in question. This was not controverted at any stage by the Second Respondent. Lord Denning had this to say in Miller v Minister of Pensions [1947] 2 All ER 372:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not.”

Courts have often pointed out that what is weighed in the ‘balance’ is not quantities of evidence but the probabilities arising from the evidence and all the circumstances. The First Respondent’s story is more probable than that of the Second Respondent having regard to the fact that the document was found in the safe. It was not disputed that the document was amongst others when Mandvizdza’s matter was deliberated upon in the boardroom on 14 December 2018. The draft ruling ought to be confirmed.

**SECOND DRAFT RULING**

This draft ruling should not detain the Court. Both parties are agreed upon the principles that have to be taken into account in quantification proceedings. However, it is Second Respondent’s argument that there was no evidence that First Respondent attempted to mitigate her loss after her dismissal from employment. Applicant made the following observations:

“The claimant’s ground is that she has tried to mitigate the loss of employment but has been unsuccessful. Evidence has been tendered to the extent that she has applied for employment but was not successful. Claimant shows that she has indeed attempted to mitigate her loss of employment.”

Indeed this observation is supported by documentary evidence from pages 137 to 144. Both parties drew the attention of the Applicant to the principles which should guide a tribunal in assessing damages in lieu of reinstatement by citing case law. Second Respondent proposed that First Respondent be granted back-pay for six months, damages in lieu of reinstatement for 3 months and cash in lieu of leave for 3 months. The only difference is the period accorded for damages in lieu of reinstatement. It is my view that the period offered by the Second Respondent as one in which First Respondent would have been expected to find alternative employment was on the low side. This is so given the concession made by Second Respondent’s Counsel of the existence of an economic meltdown. I find the period of 18 months arrived at by the Applicant to be reasonable. The second draft ruling also ought to be confirmed.

In the result, the following Order is appropriate.

1. The application for confirmation of the draft rulings is hereby granted.
2. The draft rulings of L. Sigauke N.O. dated 1st August 2019 and 11th March 2021 are hereby confirmed.
3. Second Respondent is ordered to pay to First Respondent the following amounts:
   a. Back-pay for six months- USD$ 4 664-20.
   b. 18 months for damages in lieu of reinstatement -USD$ 14 592-60.
   c. Cash in lieu of leave- USD$ 2 432-10.
4. The said sums of money shall be paid within 30 days of the date of this Order at the prescribed interbank rate on the date of payment.
5. There is no order as to costs.

Chimwamurombe Legal Practice- First Respondent’s legal practitioners

Scanlen & Holdeness- Second Respondent’s legal practitioners.


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