MDC-T v Wildrake Chihuri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/26/14
HELD AT HARARE ON 21ST OCTOBER, 2013 & 31ST JANUARY 2014
CASE NO. LC/H/604A/13
JUDGMENT NO. LC/H/26/14
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/26/14

HELD AT HARARE ON 21ST OCTOBER, 2013 &

31ST JANUARY 2014					CASE NO. LC/H/604A/13

In the matter between

MDC-T							–	Appellant

And

WILDRAKE CHIHURI			 		–	Respondent

Before The Honourables: KUDYA J & MANYANGADZE J

For Appellant:	Mr Peresu (Legal Practitioner)

For Respondent:	Mr Marimo (Legal Practitioner)

MANYANGADZE, J.

This is an appeal against an arbitral award in terms of which the Appellant was ordered to reinstate the Respondent without loss of salary and benefits, or pay him damages in lieu of such reinstatement. The arbitral award overturned a decision of the Appellant’s Disciplinary Committee which had found the Respondent guilty of misconduct and dismissed him from employment.

The brief background to the matter is that the Respondent was employed by the Appellant as a driver, responsible for Chitungwiza Province. On 24 August 2012 he drove some party members to a memorial service of the party’s Organising Secretary. Alomg the way, he stopped at a shop, and went out of the vehicle to buy some soft drinks. He left the truck’s engine running, as it had some braking and battery problems. Upon his return from the shop, he saw the vehicle being driven off by one Jabulani Mtunzi, the Youth Chairman.

Mtunzi was involved in an accident, which resulted in some damage to the vehicle and injury to some of the passengers. The incident led to the Respondent’s suspension from duty on 29 August 2012, and misconduct charges on 12 September 2012. The misconduct charges were in terms of section 4 of the Labour ( National Employment Code of Conduct) Regulations Statutory Instrument 15 of 2006, and were framed as follows:

“1) Any act of misconduct or omission

inconsistent with the fulfillment of the

express or implied conditions of his or her

contract” section 4(a) statutory instrument

15 of 2006.

2) Willful disobedience to lawful order section

4(b) statutory instrument 15 of 2006.

3) Willful and unlawful destruction of the

employer’s property section 4(c) statutory

instrument 15 of 2006”.

The basis of the charges, from a perusal of the letter bearing the misconduct charges, is that the Respondent handed over the Isuzu truck in question to an unauthorized person, Jabulani Mtunzi the Youth Vice Chairman.

The party’s Disciplinary Committee found the Respondent guilty of misconduct as charged, and imposed a penalty of dismissal on 20 September 2012.

The dispute subsequently found its way to arbitration, resulting in the arbitral award of 25 June 2013, which is the subject of this appeal.

The grounds of appeal, as summarized by the Appellant, are as follows:

“1.The Arbitrator erred in finding that all the

witnesses had corroborated the Respondent’s

“story”,

2. The Arbitrator erred in accepting an unsigned

and unauthenticated letter into evidence.

3. The Arbitrator erred in relying on other

parties’ guilt in absolving Respondent.

4. The Arbitrator erred in finding that the

Respondent was negligent and thereafter

holding that the charges against the

Respondent were far-fetched and not supported

by facts;

5. The Arbitrator erred in finding that a penalty

should have been imposed without relating that

penalty to a charge.

6. The Arbitrator erred in interfering with the

penalty against the Respondent when such a

penalty was not found to be unreasonable”.

Essentially, the appeal is challenging the Arbitrator’s findings of fact. The contention is that his findings were so grossly erroneous that they amount to an error in law on the basis of which this court should interfere and set aside his award.

On the other hand, Respondent contends that there was no misdirection at all in the Arbitrator’s factual findings. The evidence before him, as shown in the minutes of the disciplinary hearing, supported the Respondent’s case.

The position at law is quite clear as to what powers an appellate court exercises when assessing the factual findings of a lower court. The appellate court does not normally interfere with such findings, unless the lower court grossly misdirected itself in its analysis of the evidence.

In Innscor Africa (Pvt) Ltd vs Letron Chimoto, MALABA DCJ stated:

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator. The Labour court merely substituted its own discretion for that of the arbitrator, without finding any recognizable misdirection on the part of the arbitrator.”

In the instant case one must therefore look at the evidence the Disciplinary committee relied on to convict the Respondent of misconduct, and how the Arbitrator viewed such evidence.

In doing so, it is important to bear in mind what charges Appellant is facing, and the facts upon which the charges are based. As already indicated, the gravamen of the charges against the Appellant is that he handed over the vehicle to an unauthorized person. A reading of the charge sheet shows that the misconduct is focused on this issue.

The specified particulars of the charge repeatedly refer to handing over of the truck to an unauthorized person. In fact, all the three charges are predicated on these allegations, as clearly seen on the particulars itemized in bulletin form in the misconduct charge letter of 2012. In view of this, the Appellant’s Heads of Argument fundamentally miss the point. They focus mainly on the alleged unauthorized trip to the memorial service as the basis of the misconduct.

Be that as it may, it needs to be resolved whether the evidence led proves that the Respondent unlawfully handed over the vehicle to another person as particularized in the misconduct charge letter referred to. The pertinent portion thereof reads:

“You handed over the Chitungwiza Province truck (Isuzu) to an unauthorized person on the 24th of August 2012 without prior authorization in apparent disregard and violation of the provisions of the Party Vehicle Policy which amounts to willful disobedience to a lawful order.”

The Respondent’s assertion, throughout the proceedings, is that the vehicle was taken from him by Mr Jabulani Mtunzi, the Youth Vice Chairman, without his consent.

The evidence considered at the disciplinary hearing, it seems to me, tends to support this assertion.

The minutes of the disciplinary hearing filed of record contain a summary of the relevant witnesses’ evidence. In respect of the first witness, Kudakwashe the Provincial Organiser, it is recorded that:

“It was brought to the attention of the meeting that Mr Mtunzi left Makoni in the company of two females…..”

The Minutes also record:

“It was noted that Don Makuwaza and Jabulani Mtunzi drove the vehicle on numerous occasions without the knowledge of the Provincial Administrator Mr Chipiyo and Mr Chihuri the driver.”

The second witness, Mrs Mafawore, informed the hearing that she “boarded the lorry at Chikwanha around 1700 hrs and was among the company of Mr Mlambo and Mr Chihuri as they followed Mr Mtunzi on all the destinations that he had arranged to meet him for him to give Mr Chihuri back the truck.”

The third witness, Funwell Kamurendo, informed the hearing that

“he saw the car being driven in full speed as it passed Makoni where he was waiting for Mr Chihuri to pick him up. He then reported back to Mr chihuri that the vehicle they had been waiting for had just passed Makoni.”

In respect of the fourth witness, the minutes record that:

“he was surprised when he saw Mr Mtunzi drive off the service station unannounced…taking with him the vehicle he had brought fuel for.”

The fifth witness Talent Tanyanyiwa,

“made it known to the meeting that he saw Mr Mtunzi in the company of two females in the car and drive off (sic) the Kunaka Service Station during the time Mr Chihuri had gone to get some refreshment, getting ready to embark on ajourney to Hwedza…….The meeting was informed that Mr Chihuri did all he could do in his capacity to get the vehicle from Mr Mtunzi but failed to. He also emphasized that Mr Chihuri disputed the whole way to Hwedza about the (sic) being driven by Mr Mtunzi”.

Faced with this sort of evidence, the Arbitrator, at page 3 of his award, stated:

“A perusal of the minutes of the hearing shows that all the witnesses corroborated the Claimant’s story, how he was dispossessed of the motor vehicle and the frantic efforts he made in an effort to retrieve the motor vehicle from Jabulani Mtunzi. The Claimant only got to Mtunzi that same day when Mtunzi had been involved in an accident. One wonders what else he could have done in the circumstances.”

This statement reflects the Arbitrator’s factual findings. In the light of the evidence he was looking at, as seen in the excerpts from the minutes of the disciplinary hearing, his finding that the witnesses corroborated the Claimant’s story cannot be faulted. It is unassailable. In fact, it is mind boggling how the Disciplinary Committee reached its verdict of guilty in the face of such exculpatory evidence.

There is, in my view, no basis on which to interfere with the Arbitrator’s findings. Since the unauthorized handing over of the vehicle to Mtunzi  constituted the basis of the misconduct charges, the Arbitrator had no option but to absolve the Respondent from liability, nullify his dismissal and order his reinstatement. In the circumstances, the question of the fairness or otherwise of the penalty imposed by the Appellant’s disciplinary committee falls away.

It is accordingly ordered that;

The appeal be and is hereby dismissed with costs.

The arbitral award granted by Honourable J Mambara dated 25 June 2013 be and is hereby upheld.

MANYANGADZE J:…………………………………………………

KUDYA J: I agree………………………………………………