Lenon Bhutayi v Upper Manyame Sub-Catchment Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/101/23
HARARE, 14 JULY, 2022 AND 11 May 2023
CASE NO. LC/H/120/22
LENON BHUTAYI
APPELLANT
And
UPPER MANYAME SUB-CATCHMENT COUNCIL
RESPONDENT
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==============================IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/101/23
HARARE, 14 JULY, 2022 AND 11 May 2023
CASE NO. LC/H/120/22

LENON BHUTAYI
APPELLANT

And

UPPER MANYAME SUB-CATCHMENT COUNCIL
RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant : Ms V.C. Chidzanga, Legal Practitioner
For the Respondent : Mr K. Mabaudi, Legal Practitioner

CHIVIZHE, J:

This is an appeal against a determination made by the respondent’s Disciplinary Authority which resulted in his dismissal from employment. The determination was handed down on an unspecified date in 2021. The appeal is opposed.

FACTUAL BACKGROUND

The material background facts to the matter is as follows. The appellant was employed by the respondent for a cumulative 6 and half years in the position of Co-ordinator in the Water Resources & Compliance Department. In December 2020 appellant was suspended on allegations of insulting and threatenin respondent’s Finance Manager. The appellant was arraigned for a disciplinary hearing on 25th March 2021. A charge of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 i.e. any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract was levelled against him. The appellant pleaded not guilty. Following a fully-fledged hearing the
 Disciplinary Authority found appellant guilty of the charge. A penalty of dismissal from employment was subsequently imposed on him, after due consideration was taken of mitigation and aggravation factors of the case. The appellant was aggrieved and noted the present appeal to this court in view of the absence of appeal structure at the workplace.

**THE APPEAL**

The appeal has been noted on the basis of the following grounds of appeal;

1. The Disciplinary Authority made a grossly unreasonable misdirection of fact which amounted to a serious misdirection of facts which amounted to a serious misdirection in law by concluding that the appellant had committed an offence in terms of Section 4(a) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 when there was no evidence before it to prove that the offence was committed.

2. The Disciplinary Authority erred and misdirected itself on a point of law in failing to recognise that disciplinary action ought to be educational and corrective and that punitive action should be taken when the educational and corrective steps have proven to be ineffective.

3. The Disciplinary Authority erred and misdirected itself at law in concluding that appellant was not a first offender.”

The respondent through its opposing papers is opposed to the appeal being allowed. The respondent contends that the appellant was properly found guilty of the charge in view of the evidence led at the hearing which pointed positively to appellant having verbally abused him an ‘idiot’ during the Chairman’s Christmas Party on the 18th of December 2020. The respondent further contends that the penalty of dismissal was appropriate in view of the circumstances of the case and the Disciplinary Authority correctly exercised its discretion in so dismissing appellant from employment. The respondent also insists that appellant was already getting on a Final Written warning at the material time the Disciplinary Authority reached its verdict.

There are in my considered view three issues for determination before this court.

**(a) WHETHER OR NOT APPELLANT WAS PROPERLY CONVICTED OF THE CHARGES**

The charge levelled against the appellant was that of breach of Section 4(a) of the National Code of Conduct. During the disciplinary hearing the respondent led evidence from Mr
 Simbarashe Runhare, the Finance Manager and Ms Constance Matsaira the Water Resources and Compliance Manager. The effect of the evidence of both witnesses was that the appellant had called Mr Runhare an ‘idiot’ for having presided over a previous disciplinary hearing convened against appellant the insult was made in the presence of the witness wife and Mrs Matsaira. Mrs Matsaira confirmed hearing the appellant hurling the insult at Mr Runhare in his wife presence in a queue where people were being served food. She testified that she heard appellant calling Mr Runhare a sell-out. It was her evidence she had interviewed and told appellant to stop raising such issues at a public gathering.

Appellant presented his own testimony. He testified that he had only greeted Mr Runhare and his wife. He denied having insulted, intimidated or threatened Mr Runhare. He completely denied calling him an ‘idiot’. He informed the Disciplinary committee that there was collusion on the part of the two witnesses to fix him. Evidence was also led from a witness Tafadzwa Jonhera, a non-employee of who testified that he had been in the vicinity of the victim and the appellant. He described the environment between them as being cordial. He however could not confirm that the alleged conversation with insults had taken place.

Before this court appellant submits that the Disciplinary Authority grossly erred and misdirected itself on the facts in finding him guilty based on the insufficient evidence as led by the respondent. He contends that the conversation he had with the purported victim was manipulated by the respondent in order to dismiss him from employment. Appellant also contends the Disciplinary Authority failed to apply the proper standard of proof in determining his conviction on the charge. The standard of proof in labour matters as outlined in ZESA v Dera 1998 (1) ZLR 300 is on a balance of probabilities and it had not been met in this case. The appellant has also placed reliance on ZUPCO v Packhorse Services (Pvt) Ltd SC 13-2017. Specifically in relation to the charge, appellant contends that respondent failed to establish that he had in any way intimidated or threatened the Finance Manager as suggested. Further the witness Mrs Matsaira did not corroborate the evidence of Mr Runhare. He was referred specifically to page 46 of the record. The appellant also submits the Disciplinary Authority also failed to make a specific finding as to what specific words was used ‘idiot’ or ‘sell-out’. On this basis appellant claims that the Disciplinary Authority erred in returning a verdict of guilty under such circumstances. The
 Disciplinary Authority failed to reasonably test as enunciated in ZUPCO v Packhorse Services (Pvt) Ltd referred to supra.

The respondent’s position is that the appellant was properly convicted on the charge. The evidence led clearly established that the appellant had called Mr Runhare an ‘idiot’. The evidence was also supported by Mr Runhare’s Memo authored soon after the incident whilst events were fresh in his memory. The respondent contends that both the written evidence of Mr Runhare and Mrs Matsaira is corroborative and complementary. Respondent disputes any contradiction as suggested by appellant. Respondent has also castigated the evidence of Tafadzwa Jonhera as not being corroborative of appellant’s evidence. The respondent also disputes that it was for it to call other witnesses as suggested by the appellant. The respondent finding has dismissed the conspiracy that peddled by the appellant in these proceedings. The respondent urged the court to find that appellant had been properly convicted of the charge on the basis of sufficient evidence a led by the witnesses.

It is trite position at law that the standard of proof in labour matters being in the nature of civil matters is on a balance of probabilities. See Zimbabwe Mining Development Corporation v Edward Hambakachare SC 2/20 where GUVAVA J. stated as follows;

“It is imperative to note that when it comes to the issue of burden of proof in disciplinary hearings, it is not necessary to prove that one has committed the offence beyond reasonable doubt. The test is that the employer must prove his case on a balance of probabilities see ZESA v Dera 1995 (1) ZLR (S) at p 504 (A)”

The appellant is alleging that he was improperly convicted on the basis of insufficient evidence. The charge levelled against him was of any act of conduct inconsistent with fulfilment of the express or implied conditions of his contract. The respondent succinctly led oral evidence from two witnesses that confirmed the allegations that appellant at the very least verbally abused Mr Runhare. The fact that there may have been contrasting evidence given by the witnesses as to the exact words or statement he made is clearly neither here nor there. The bottom line is there was consistency in the witnesses’ evidence that he verbally abused Mr Runhare. Even if it is indeed correct that he only said “sell-out” that on its own is an extraneous rude remark to make to your senior. Appellant was clearly disrespectful to Mr Runhare. That conduct would clearly be inconsistent with his contractual relationship with the respondent. As the record shows it is actually the evidence of his own witness that was insufficient to dislodge the evidence of the respondent witnesses. The witness Tafadzwa Jonhera in his testimony indicated that he had not heard appellant hurling insults at his senior but then ventured to state that appellant could have spoken to Mr Runhare in his absence. That on its own destroyed the relevance of his testimony to appellant case. The Disciplinary Authority was correct when it reached a verdict of guilt.

(b) WHETHER OR NOT DISMISSAL WAS APPROPRIATE IN THE CIRCUMSTANCES

The second issue that the court needs to address is whether dismissal penalty was appropriate in the circumstances. The appellant has submitted that the Disciplinary Authority ought to have considered a more lenient sentence in view of the objectives of the National Code of Conduct Regulations under which he was disciplined. The Code recognises that disciplinary action ought to be educational and corrective first before punitive action is taken. The appellant also submits he had no previous record of a similar offence.

The respondent’s submission is that the penalty of dismissal was properly imposed in the circumstances. At common law an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the express or implied terms of his contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion see Zimbabwe Platinum Mines (Pvt) Ltd v Ronald Godide SC 2/16. The offence that appellant was convicted of is a very grave offence. He was found guilty of hurling an insult, rudeness towards a Senior Manager in public place where the employer was hosting a Christmas party. That conduct would ordinary go to the root of employment contract. It clearly warranted a dismissal penalty.

(c) WHETHER THE APPEANT WAS A FIRST OFFENDER

The appellant has also submitted that in any event the respondent Disciplinary Authority improperly placed reliance on a Final Written Warning which was later overturned by the Labour Officer in a ruling handed down after his conviction. The respondent argues that the ruling by Labour Officer Madziya was handed down after appellant conviction and penalty. At the material time the Disciplinary Authority issued its determination the appellant how the Final Written Warning hanging over his head. He was therefore not a first offender.

The court once again agrees entirely with respondent on this point. It is indeed the correct position at law that an employer can take into account a Final Written Warning in imposing a dismissal penalty. See **Zimbabwe Platinum Mine (Pvt) Ltd. v Ronald Godide** referred to *supra*. In his particular case the Final Written Warning was in existence at the material time the Disciplinary Authority considered an appropriate penalty. It was within its right and entitlement to take the same into account. That ought to be the end of the matter.

In the result the following order is issued;

The appeal be and is hereby dismissed with costs.

*Moyo and Jera*, applicant’s legal practitioners

*Hove and Associates*, respondent’s legal practitioners
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