Mollen Chamisa v ANZ

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/236/16
HELD AT HARARE 11 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/236/16

HELD AT HARARE 11 MARCH 2016				CASE NO LC/H/117/15

& 13 MAY 2016

In the matter between:

MOLLEN CHAMISA					Appellant

And

ANZ							Respondent

Before The Honourable L Hove, Judge

For Appellant 			Mr T Marume (Legal Practitioner)

For Respondent		A Muchadehama (Legal Practitioner)

HOVE, J:

The appellant was employed by the respondent as a Graphic Designer(Layout Artist).

In November 2013, the appellant was suspended by the respondent.  He was brought before a disciplinary committee and was found guilty of the allegations levelled against him.  He was dismissed.

He appealed to this court.  In his appeal he raises 5 grounds.  Ground Number 2 is raising a procedural issue.  It is trite that when one raises issues that do not seek to challenge the correctness of the decision itself but with the decision making process, they ought to do so by way of review.  See in this regard the case of Muringi v Air Zimbabwe 1997 (2) ZLR 488.  The alleged serious procedural irregularity raised in ground of appeal number 2 is improperly raised and will be struck off.

The background of the dispute between the parties is this that;

The appellant was, as earlier stated, an employee of the respondent.

The appellant applied for a loan from the People’s Own Savings Bank (POSB) it was required of him by POSB to submit a document from his employer confirmed that the employer would make sure appellant’s salary would go through POSB for the period appellant was servicing his loan with the POSB.

A document was submitted in this regard purporting to have been authorised by the employer’s Human Resources Manager.

The employer’s Human Resources Manager had not authored this letter.  But unbeknown to the POSB, they proceeded and availed the appellant with the loan facility.

The appellant defaulted with his loan payments and also instructed his employer not to pay him through the POSB.

POSB queried with the employer and asked why after guaranteeing that the appellant’s salary would be paid through POSB during the period of servicing the loan, they had stopped paying the salary through POSB.

The employer investigated the issue and found that the letter guaranteeing that the salary would be paid through POSB for the given period had not infact been authored from their Human Resources Department.  The signature on the document was not of anyone they employed.  The letter of undertaking had been signed by a “Mandebvu”.  It was noted that the appellant’s wife’s maiden name was also “Mandebvu”.

The employer had never employed a Mandebvu as the Human Resources Manager although the Mandebvu who signed, signed as Human Resources Manager.  The stamp used to authenticate the document is different from ANZ’s official stamp.

The letter was on the employer’s letter head.

The appellant was questioned by POSB as to why he was defaulting and appellant advised POSB that he had been suspended from work by the employer without pay.  Appellant had however not been suspended.

Faced with these facts, the employer was of the view that there was a prima facie case of fraud.  It brought charges against the appellant and found that he, the appellant had forged and uttered the letter of undertaking.  The employer found that the letter must have come from the appellant who forged it to help himself access the loan.

One of the grounds that the appellant challenges the decision to find him guilty is canvassed in his heads of arguments in paragraph 10:13.  He argues that the employer must have proved the offence of fraud beyond a reasonable doubt reliance was placed on the case of Astra Industries Ltd v Peter Chamburuka SC 27/2012 where the court held that

“The position now appears settled in this jurisdiction that where a person is charged in a disciplinary hearing with an offence of a criminal nature, such an allegation should be proved beyond a reasonable doubt and that it would be unfair to condemn a man and punish him for an offence of a criminal nature on a balance of probabilities rather than evidence which established the commission of offence beyond a reasonable doubt.  In this connection see Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S) 364 G – 365 B”

It was argued that what the position of law provided was that the misconduct in casu and all its essential elements had to be proved beyond a reasonable doubt.

This being a civil matter, the standard of proof has been stated in a plethora of Supreme Court judgments to be one of a balance of probabilities in the case of Ebrahim v Pittman N O 1995 (1) ZLR H 184 – 185 the court stated that

It is trite law that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, although in so doing, it does not exclude every reasonable doubt.

In criminal cases, however, every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond reasonable doubt---

“In civil cases one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion amongst several conceivable ones even though that conclusion be not the only reasonable one.”

In the case of Zesa v Dera SC 79/98 the court held as follows;

“it is common cause that in labour cases, the burden of proof is on a balance of probabilities and not proof beyond a reasonable doubt.”

Again in Caps Holdings v Chikwavira SC 73/99 the court upheld this position that the standard of proof is much lower in ‘dismissal’ cases and stated that

“In a criminal case the court has to be fair on the accused only.  In a “dismissal” the court has to be fair on both accused and the accuser.”

The Astra Paints case (supra) is a 2012 case but the courts have re-established the correctness of the legal position that the standard of proof in civil matters remain one of a balance of probabilities.

The Labour Court, sitting as an appeal court has no power to disturb the findings of facts of lower tribunals.

See in this regard the case of Nyahondo v Hokonya & Others 1997 (2) ZLR 475 where the court held that

“an appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

In the case of Coh Coh Enterprises (Pvt) Ltd v Mativenga & Anor SC 30/01 it was again stated that an appeal court can only interfere with findings of facts only if the findings are grossly unreasonable, capricions  and mala fide.

See also the case of Tirivangana & Anor v University of Zimbabwe SC 21/13.

The grounds of appeal numbers 1, 3, 4 and 5 are all challenging factual conclusions made by the hearing officer.  I am not of the view that those factual findings are capricions, grossly unreasonable or mala fide.

It is most probable that the appellant who worked for the employer accessed the appellant’s letter head and forged the letter of guarantee which he then submitted to POSB. Who else could have an interest in whether or not he gets a loan?  Who else could forge the document to benefit the appellant? But appellant himself.

The appellant does not say he obtained the letter from any of the employers employees before submitting it.  The letter he submitted was forged.  Then why would he default on the loan repayments when he was never suspended without pay? Why would he then change the salary from being paid through POSB to NMB?

The most probable answers to all these questions is the appellant himself.  He was the only person who would benefit from all this.

The employer cannot be faulted for having found on a balance of probabilities that the appellant was guilty. I am not at all convinced that the employer was grossly irrational in coming to the conclusion it did based on the facts and the evidence before it.

Having found thus, I am unable to interfere with the findings of facts and conclusions reached in this matter.

The appeal is accordingly dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners