Locardia Chikwanha v The Wattle Company

IN THE LABOUR COURT OF ZIMBABWE          JUDGMENT NO LC/MC/24/2013

MUTARE, MAY 24 & AUGUST 30, 2013                  CASE NO LC/MC/43/12


LOCARDIA CHIKWANHA                       Appellant

Versus

THE WATTLE COMPANY                       Respondent


Before The Honourable L F Kudya :                 President

For Appellant :Mr B. Tanaya( Legal Practitioner)

For Respondent:Mr T.Mukwindidza (Legal Practitioner)


KUDYA L:

     This is an appeal against the decision of the
Disciplinary Committee which dismissed the Appellant
on grounds of contravening the Respondent’s Code of
Conduct.     In     particular,     it     was    alleged       that    the
Appellant stole timber from her workplace.
     Facts     of   the   case    are    that     the    Appellant      was
employed by the Respondent Company as a sales person.
She is said to have in the first count failed to
notify   her      superiors      timeously       of     the    fact    that
customers’     timber     which    had     been       bought    from   the
Respondent        had   gone     missing     in       transit    to    the
customer. In respect of the second count she was said
to have connived with Nigel Mutara and another to
steal timber from her workplace.


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          She was found not guilty of the first count of
acting inconsistent with her duty by the late report.
She was however found guilty of the theft of the
timber in question. She was consequently discharged
from her employment. Aggrieved by that dismissal she
has     now     appealed       to    this     court     to     set   aside    the
verdict and dismissal penalty. She prays that in its
place the court orders that she be reinstated to her
original position without loss of salary and benefits
or     alternatively          to    be    paid       damages    in   place      of
reinstatement.
        The grounds of the appeal are as follows:


     1. The Disciplinary Committee was improperly constituted hence the
        decision it made was fatal to that extent.
     2. The Appellant was denied her constitutional right of legal representation
        by the Respondent Code of Conduct hence anything which fell from that
        Code could not be sustained at law.
     3.No credible evidence was led to show that there was connivance between
        the Appellant, Nigel and others to steal from the Respondent. In
        particular, it was argued that the Respondent failed to caution itself when
        it accepted Nigel and others’ evidence to found the Appellant’s guilt
        when it was clear that Nigel and colleagues had their interests to protect
        as accomplice witnesses. They thus could falsely accuse the Appellant as
        a way of getting favourable treatment on the theft charges which they also
        stood to be convicted of.


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      In response, the Respondent maintained that the
Committee was properly constituted as the risk and
compliance        manager       did    not      compromise       it     in    any
manner due to the reporting structures therein. It
also maintained          that the             Appellant was       not denied
legal    representation             because      the     Code    in    question
expressly        excluded          such       representation          but     the
Appellant was free to be represented by the other
people stated in the Code, which right she chose not
to exercise.
      To that extent, there was no irregularity which
vitiated        the    proceedings.            Finally,    the    Respondent
argued that, there was enough evidence to found the
Appellant’s guilt taking into account the fact that
she was not only found guilty on account of Nigel’s
evidence        but      also       taking        into     account          other
independent evidence. Given the fact that this was a
theft allegation in a civil context the standard of
proof was on a balance of probability. This was met
when evidence was led on this matter.
      On the date of the hearing of the appeal both
parties agreed that the matter could be decided on
the   papers      filed       of    record.      To    that     extent,      this
judgment    is        based    on    the      submissions       made    in    the
parties’ papers as they appear on record.
      A reading of the Appellant’s heads of argument
indicated       that     after      further       consideration         of    the
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reporting structure within the Respondent Company the
Appellant       was     now    satisfied         that    the   Disciplinary
Committee was well constituted. She thus abandoned
the first ground of appeal on that basis.
      This therefore meant that the only two grounds
which the court had to determine were whether the
Appellant was denied legal representation and whether
the     cumulative       evidence          led    at     the   disciplinary
hearing was sufficient to find the Appellant guilty
of theft and consequent dismissal.
      As regards the ground on legal representation the
law is clear that where a Code of Conduct explicitly
ousts the same denial of such representation shall
not be calculated to be a misdirection on the part of
the Disciplinary Committee entitling the Appellant to
relief or to the setting aside of the verdict and
penalty meted out in a particular case. The case of
Terry      Musarira      vs.    Anglo       American       Corporation         SC
53/05 is instructive on this point.
      Applying the principles in the above quoted case,
it    is   clear      that    the    Appellant’s          rights      were   not
breached        vis    legal    representation            since    the       Code
which bound           her specifically           ousted the        same. The
contractual nature of the relationship between her
and the Respondent                  meant that their relationship
had to be regulated by the four corners of the Code
of Conduct.           The court      is therefore           satisfied that
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there    is     no    merit    in    this       ground    and    it    should
accordingly fail.
       As regards the ground on sufficiency of evidence,
the Appellant went to length arguing that evidential
principles like the treatment of accomplice evidence
with caution etc. were not observed hence her guilt
was not well founded. It is however worth noting that
the law is settled that the strict evidential and
criminal law principles have no place in disciplinary
hearings. See Zimbabwe Financial Holdings vs. Mafunga
2005(2) ZLR 289(SC)


       Further to that, the case of ZESA v Dera SC 79/98
states clearly that the standard of proof required in
a   workplace        hearing    is    no    more     than      proof     on   a
balance       of     probabilities.        It    need     be    noted    that
whilst Nigel and his colleague had an interest in the
case    by      virtue    of   their        accomplice         status,    the
Appellant could not explain how of all the employees
at Respondent’s workplace she could be singled out as
the person who connived with Nigel and Fidelis to
steal the timber.
       It is clear that Nigel and Fidelis did not work
for the Respondent and access to the timber could
only    have       been   through         someone    from       within    the
system. They said it was the Appellant. Further to
that,     evidence        about      the        liaison        between    the
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Appellant and the trucker gave credence to the fact
that     the     Appellant     was       indeed     involved       in    the
disappearance of the timber.
       The argument that, if she had stolen the timber
she would not have told management that timber got
missing on the way is without foundation. In fact
that notification           creates in      the court’s          mind the
impression that it was made to deflect the employer’s
attention from the fact that it was the Appellant who
had     caused     the    disappearance        of     the       timber   in
question.
       The court is therefore satisfied that there was
no     fault     in   the    reasoning       of     the     Disciplinary
Committee that, on a balance of probabilities, the
Appellant’s       guilt     had   been     proven.        The    court    is
therefore satisfied that this ground of appeal also
lacks merit and it should fail.
       In the result, based on the above reasoning the
court is satisfied that the Appellant failed to make
out a good case for her appeal and it has to be
dismissed on all grounds.


IT IS THEREFORE ORDERED THAT:
The appeal being without merit in its entirety be and
is hereby dismissed with costs.


L.KUDYA
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PRESIDENT- LABOUR COURT


Mugadza, Chinzamba & Partners- Appellant’s Legal Practitioners
Bere Brothers-Respondent’s Legal Practitioners




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