Levias Jonga v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/434/13
HARARE ON 1ST AUGUST & 27TH SEPTEMBER,2013
CASE NO. LC/H/453/12
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO. LC/H/434/13

HARARE ON 1ST AUGUST & 27TH SEPTEMBER,2013  CASE NO. LC/H/453/12

In the matter between

LEVIAS JONGA						–	Appellant

And

CITY OF HARARE					-	Respondent

Before The Honourable B.S.Chidziva, President

For Applicant   : S. Katsuwa (Legal Practitioners)

For Respondent : Ms A. Zvoutete (Legal Practitioner)

CHIDZIVA, B.S.

The brief history of this matter is that the Appellant joined the Respondent in August 1994 as a general hand. He was charged with two (2) counts of fraud that is contravening Clause 11:5 (f) of SI 171 of 2010 Collective Bargaining Agreement. On the 19th of May 2011 the disciplinary committee found him guilty and imposed a penalty of dismissal. The Appellant took it up with the National Employment Council and eventually the arbitrator ruled in favour of the Respondent. The arbitrator ruled as follows:-

“In the circumstances the tribunal’s award is that;-

As there was no unfair dismissal as alleged by the Respondent the dismissal by the Disciplinary Committee is therefore upheld.

Parties shall pay the arbitration fees equally and

Each party shall meet its own Legal fees.”

The Appellant has thus appealed to this Court against the arbitrator’s ruling. The Appellant’s grounds of appeal are that:-

The Arbitration misdirected himself by not taking into consideration that witnesses called at the Disciplinary hearing clearly exonerated the Appellant.

The Appellant misdirected himself by not taking into consideration the gross procedural irregularities committed by the Respondent in the matter.

The Appellant therefore prayed for reinstatement to his former position with full pay and benefits.

The Respondents in response told the Court that the Appellant’s grounds of appeal had not raised any points of Law as required by section 98 (10) of the Labour Relations Act [Cap 28:01].

The Respondent therefore prayed for the dismissal of this appeal stating that the grounds of appeal;-

do not disclose points of Law and

do not disclose gross unreasonableness.

It is common cause that the Appellant was dismissed for allegedly defrauding the Respondent of $20,00. What is to be decided is whether the Appellant’s dismissal was fair or not.

In the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR at page 220 GUBBAY CJ on points of Law had this to say:-

“………..the term question of Law is used in three distinct though related senses. First it means a question which the Law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter. Second it means a question as to what the Law is. Thus an appeal on a question of Law means an appeal which the question for argument and determination is what the true rule of Law is on certain matter. And Third any question which is within the province of the Judge instead of the jury is called a question of Law. This division of judicial function arises in this country in a criminal trial presided over by a Judge and assessors.

None of the issues raised by the Appellant fall into three categories. The arbitrator made factual findings which are reasonable. Furthermore acquittal by a criminal Court does not exonerate an employee from disciplinary proceedings by the employer.

In view of this foregoing this Court finds that the appeal lacks merit and is hereby dismissed.

S. Katsuwa – Applicant’s Legal Practitioners

A. Zvoutete – Respondent’s Legal Practitioners