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Judgment record

M. Zodziwa v Redwing Mine

Labour Court of Zimbabwe28 May 2013
[2013] ZWLC 18LC/MC/18/20132013
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INTHE LABOUR COURT OF ZIMBABWE                                     JUDGEMENT NO. LC/MC/18/2013
HELD AT MUTARE ON 28 MAY 2013                                      CASE NO: LC/MC/37/11



In the matter between



M. ZODZIWA                                                         APPELLANT

And

REDWING MINE                                                       RESPONDENT



Before Honourable Kudya, L President



For Appellant              - In Person
For Respondent             - Mr M. Maunga (Legal Practitioner)



KUDYA, L

        This is an appeal against the decision of the Respondent to dismiss the

Appellant on allegations of contravening the Respondent Code of conduct SI 165 or

1995 Part B Section 4 (a) (iv) Misappropriation; applying or attempting to apply to a wrong use for
unauthorized purpose any funds, assets or property belonging to the company ;
and
4 (a) (i) bribery or corruption; giving or receiving or attempting to give or receive any bribe of inducing, or
attempting to induce any person to perform any corrupt act;
and
4 (a) (ii) false evidence, deliberately giving untrue, erroneous or misleading information or testimony
whether verbally or in writing.




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      The facts are that, Appellant who was in the employ of the Respondent was

arrested by one Sergeant Kisi at a mill sump which was said to be a restricted area.

This allegedly happened or a day when power had gone off and all the employees

had left


                                                     JUDGEMENT NO. LC/MC/18/2013

their workstations as was required by the Respondent’s orders that, upon power

failure employees had to leave their workstations for security reasons.



      It was further alleged that, at the time of arrest of the Appellant, he had been

seen with a bucket in the mill sump area and when the bucket was subsequently

retrieved after the mill had been started it was discovered that it contained ore in it.

Appellant’s explanation was that he had taken the bucket to the mill sump to fill in a

certain chemical for use at his workstation which was close to the mill sump.



      After the arrest, the Appellant is said to have attempted to bribe Kisi with cash

when he took out his wallet and phone during the arrest. Appellant agrees that he

took out the wallet but he states that it was not for bribing Kisi but only as a

measure to show that there was no such bribe money equivalent to what is claimed

that he wanted to use for the bribery.



       He was also said to have lied to the arresting detail that he was only sitting

trying to fix the bucket pending use yet in truth and in fact he wanted to use it to

access the ore in question from the mill sump.




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       He was brought before a Disciplinary Hearing Committee which found him

guilty and dismissed him from employment. Aggrieved by the decision he utilized

all the internal appeal structures. All the appeal structures were convinced that he

did not have a good case for appeal and they consequently threw it out. It is the

confirmation of his dismissal by the appeal bodies which he has appealed against in

this court.




                                                   JUDGEMENT NO. LC/MC/18/2013


The grounds of appeal are as follows:-



1. Appellant was not given adequate time to present his case as he was given short

notice to attend the hearing hence he attended the hearing ill prepared.

2. The alleged scene of the offence was not out of bounds for Appellant but one

within the precincts of where he was supposed to conduct his duty from.

3. Appellant was improperly accused of bribery and the hearing authorities relied on

biased evidence from the witnesses who were called to testify in his case.

4. The dismissal penalty was too harsh in the circumstances taking into account the

fact that he had been in Respondent’s employ for about 9 years at the time of the

allegations and the imposition of the penalty.



On the other hand, the Respondent maintained that the appeal had no merit for the

following reasons:-



                                                                                   3
      If the record of the proceedings or the Disciplinary Committee is anything to

go by, it is clear that Appellant’s guilt was proven by the evidence of the witnesses

who testified against him hence there was overwhelming evidence to find him

guilty. In particular the Respondent wanted the court to note that Appellant had

been at the restricted area contrary to the standing position that following a power

cut all employees have to leave their workstations for security reasons.



       He could not have been working at the mill sump since it had stopped

working then. Further to that he was seen with a bucket which was later thrown

into the sump and upon its retrieval it contained gold ore. Whilst Appellant claims

that he was forced by Kisi to throw the bucket into the sump he proffered no good

explanation why that would have been done yet it was clear that bucket could be

damaged upon the resumption of the mill sump.
                                                     JUDGEMENT NO. LC/MC/18/2013


       Appellant was aware of the standing instruction of vacating the mill upon a

power cut and even if he argues that he was doing his job how could he do that

without telling his supervisor. The bribery allegations were proven as evidence was

led directly from the person who he wanted to bribe. The dismissal penalty was

appropriate in the circumstances.The Respondent therefore prayed that the appeal

be dismissed with costs as it lacked merit.



     The law governing appeals of this nature is set out on the case of Nyahondo vs

Hokonya and others 1997(2) ZLR 475 (SC) It is clear from this case that the appeal

court can only interfere with the exercise of the discretion by the tribunal below it if

it shows that the exercise of such was unreasonable as to be construed to be

malicious or biased.

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        Further to that the test to be applied on the procedural irregularities raised by

the Appellant is whether they go to the root of the case and whether the Appellant

was indeed prejudiced by them. The cases of Tichawana Nyahuma vs Barclys

Bank Private Limited SC 67/05 is instructive in this respect.



        It is clear from a reading of the grounds of appeal that the Appellant has

mixed both review and appeal grounds in the same case even though the Labour

Court rules provide for the 2 as separate procedures.          No issue was taken by

Respondent on that and also given the fact that the Appellant is a self-actor who is

not well versed with legal niceties the court was prepared to condone the mix up.



        From the facts of the case already outlined it is clear that there are very few

facts on which both the Appellant and the Respondent are agreeing. In essence it is

those




                                                      JUDGEMENT NO. LC/MC/18/2013


parts of disagreement which the Appellant relies heavily on as making out the basis

of his appeal.



        Firstly there is the issue about the power cut. The Appellant maintained in his

oral submissions that the power cut was not within the area where the offence

allegedly took place. Respondent maintains that it was, and submits that, that is why

the mill sump was not working.        It is important to note on this point that the

Appellant concedes that the mill sump was not working hence the damage which

                                                                                        5
almost occurred to the bucket when the mill was started with the bucket in. This

piece of evidence makes the version of the Respondent more probable than that of

the Appellant hence the court finds as a fact that there was no power on the date

and time in question.



         The Appellant argues that he was within his area of operation whilst

Respondent says he was not.      He however does not dispute that it is a standing

instruction of Respondent that when power is off all employees have to vacate their

areas of operation. In view of the acceptance of the fact that there was no power it

is therefore clear that if Appellant remained within the area whether close to the mill

or his area of operation that does not absolve him from having failed to abide by the

instruction of vacating the workstation. That therefore makes his stay of working on

his own to fill chemicals without supervisor’s authority more improbable than the

version given by the Respondent’s witnesses. The court therefore also finds as a fact

that the version given by the Respondent on this fact seems to resonate with the

truth.



         On the bribery issue, Appellant says he took out the wallet to show the

arresting details that it was not possible that he could have wanted to bribe Kisi with

$20 as there was no such money in the wallet. Kisi on the other hand gave evidence

before the committee that Appellant wanted to bribe him. The decision as to who

between the 2 told the truth was made based on how the witnesses’ testimonies

persuaded the hearing
                                                    JUDGEMENT NO. LC/MC/18/2013


authority. It appears from the record that Kisi’s evidence was taken holistically with

the evidence of the other witnesses and statements which confirmed the Appellant’s

                                                                                      6
guilt. To that end the court has no legal basis to find fault with the Disciplinary

Committee’s finding on this fact.



      During the course of the oral submissions Appellant also took issue with the

fact that he was not given the record of proceedings of the Disciplinary Committee

when he requested the same. He maintained that, when he asked about it he was

denied the same and told that he would get it from the Labour offices. The court

notes that if that is what the Respondent did, it was irregular as the Appellant had a

right to see the record in question and also to sign the minutes of the hearing as an

affirmation of the fact that what was recorded is what had transpired during the

proceedings.



      He therefore cannot be faulted for having failed to challenge the minutes if he

genuinely laboured under the view that same would be with the labour offices as he

had been told. However, whilst the court accepts that the non-availability of the

minutes to the Appellant was irregular the question to be asked by the court is what

effect does that have on the totality of the issues at stake on the matter.



       As already pointed out it is not all irregularities which vitiate proceedings. In

the instant case it is clear that the minutes basically contained the testimonies of the

witnesses which are in sync with the statements of same filed of record. Appellant

himself confesses that his guilt was based on the witnesses’ statements hence the

court is not persuaded that Appellant suffered any prejudice by failing to access the

record timeously. This is so because, he is adamant that what all the witnesses told

the hearing panel were creations calculated to let him lose his job. It therefore

becomes a non-issue whether the minutes got to him early or not.


                                                                                       7
                                                    JUDGEMENT NO. LC/MC/18/2013


      The only critical question which has to be answered is why would all the

witnesses team up to create these allegations against him. It is clear that at the

outset, even during his oral submission Appellant never told the court why that

would be so. It is only when the court had allowed him a chance to delve further

and deal with his argument about the citation of the charges that he came up with

the story that he understood that the workers had been told that if they caused his

arrest whoever did that would be rewarded.



       He said the animosity was brewed by the fact that he owned a car and the

question was where he was getting his money from, to afford such a life style. The

court finds this as such a far-fetched excused as to be an incredible one. It therefore

stands to reason that, the Appellant has no good and cogent reason why all the

witnesses would team up to lie about what he did not do. The court is convinced

that Appellant is just clutching at straws when it is amply clear that he was found at

fault and resultantly dismissed from employment.



      Appellant also took issue with the citations of the charges and the dismissal

sections. It was however apparent that there was no anomaly in this respect as the

sections for the charges remained clearly distinct from the penal provisions. The

court was therefore satisfied that nothing turned on this aspect of bias and harsh

proceedings.



      Appellant maintained that, it took about a month for the Respondent to

gather evidence on the matter hence it’s clear that all that while Respondent was

                                                                                      8
busy creating evidence to dismiss him. As has already been pointed out above, the

reason proffered for the false incrimination is ridiculous hence the court does not

find the period of 1 month to be outrageous as to vitiate the proceedings.




                                                    JUDGEMENT NO. LC/MC/18/2013


       The court is not persuaded that it has any legal basis to upset the findings of

fact   of the tribunals below   as all the decisions made therein were based on

evidence which was tendered and accepted as the truth of what had transpired.

There is no evidence of unreasonableness or irrationality in the handling of the

evidence by the tribunals below. The court is therefore satisfied that there is no

merit in upholding the appeal on the merits or on all the grounds in relation to the

Appellant’s conviction.



       As regards the penalty, Respondent’s counsel correctly cited the cases of

James Kadoma vs Shades of Black Cosmetics SC 115/04 and that of Standard

Chartered Bank vs Chapuka 2005( 1) ZLR 52           These cases set out clearly that

where there fabric of trust between the worker and the employer has been broken it

would not be irregular for the employer to dismiss the employee.



       In the instant case it is clear that the charges which the Appellant was found

guilty of went to the root of the employment relationship. The court therefore finds

nothing amiss about the dismissal notwithstanding the period which the Appellant

had served the company. The court is satisfied that the appeal is not merited on this



                                                                                     9
ground as well. In view of the Appellant’s self-actor status no order of costs would

be granted.



It is therefore ordered as follows:



   1) That the appeal lacking in merit on all the grounds be and is hereby

      dismissed.



   2) No order as to costs.



L. KUDYA (MRS) -----------------------
PRESIDENT- LABOUR COURT

Maunga, Maanda and Associates-Respondent’s Legal Practitioners




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