Mudyahoto v TelOne (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/235/13
HARARE ON 13TH SEPTEMBER, 2012
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/235/13

HARARE ON 13TH SEPTEMBER, 2012	               CASE NO. LC/H/568/11

AND 27TH SEPTEMBER, 2013

In the matter between

MUDYAHOTO				-		Appellant

And

TELONE (PVT) LTD.			-		Respondent

Before The Honourable B.T. Chivizhe, President

For Appellant		-	Mr J. Mutonono (Legal Practitioner)

For Respondent		-	Mr J. Dondo (Legal Practitioner)

CHIVIZHE, B.T.:

The appeal was noted against the decision of the Respondent National Hearing Committee which on the 28th February 2011 upheld the decision of the Regional Hearing Committee and confirmed the termination of Appellant’s contract of employment with effect from 11th November, 2010.

The background facts are as follows;

The Appellant was employed by the Respondent as a Technician Assistant in its Operations and Engineering Report – based at Chatsworth Exchange. Appellant was suspended without pay on the 26th October 2010 on allegations that he and two others had removed an air conditioner (serial number provided) from Chatsworth Exchange to a private residence in Harare instead of delivering same to Tel-One Stores. The Appellant was consequently charged with two acts of misconduct viz;

breach of Category 4:12 i.e. theft, fraud including attempted theft/fraud and

Category 4.23 i.e. gross disregard of standing procedures/rules including regarding standing rules/procedures resulting in potential financial loss/prejudice

The Appellant appeared before the Regional Hearing Committee on 11th November 2010 facing the same charges. He was found guilty and consequently a penalty of dismissal was imposed. He appealed to the National Hearing Committee which on the 28th February 2011 upheld the earlier decision by the Regional Hearing Committee and re-imposed the dismissal penalty. Aggrieved by this decision the Appellant noted the present appeal.

The Appeal has been noted on nine grounds of appeal. These are;

The disciplinary authority erred in preferring charges against the Appellant without either explaining the charges and or making averments of what Appellant was alleged to have done.

The disciplinary authority erred in charging Appellant under category 4.23 and finding him guilty of same and yet the record of proceedings does not show the standing procedures and or rules which Appellant is alleged to have breached.

The disciplinary authority erred in that it never called in witnesses to afford Appellant a chance to cross-examine them.

The disciplinary authority further erred in using a report authored by Appellant when he had indicated to them that such a report was authored under duress.

The disciplinary authority erred in convicting Appellant of theft when no evidence was sown that he indeed stole the air conditioner in question.

The disciplinary authority erred in concluding that the Appellant admitted to loading the air conditioner from the Exchanging Engine room yet no such evidence is on record.

The disciplinary authority further erred in finding Appellant guilty of contravening category 4.23 offence without producing any proof of the existence of any standing orders/rules and or procedures.

The disciplinary authority further erred in concluding that Appellant admitted that Respondent was the owner of the air conditioner in question.

The decision to dismiss Appellant is so harsh that it negates the provisions of the labour laws.

Although Appellant has raised nine grounds some of the grounds are repetitive and can be conflated. There are in my view four issues raised in this appeal.

The Respondent having in its response taken a point in limine, I shall initially address the point in limine.  The Respondent has raised the point that the appeal as noted does not raise questions of law as required by Section 98(10) of the Labour Act [Chapter 28:].  The point is opposed by the Appellant. The point in limine clearly stands to be dismissed on the basis that it is only an appeal against the Arbitrator in terms of Section 98(10) of the Labour Act [Chapter 28:01] that has to be on points on law.  Any other appeal filed in terms of the Labour Act can be based on both facts and law. The present appeal being an appeal against an internal appeal body under Respondent’s Code falls into the latter category.

On the merits the first issue raised is whether it was proper for the Regional Hearing Committee to have relied on the written confession by the Appellant to found conviction on the charges where the Appellant indicated that the confession had been obtained through duress. The Respondent’s submission is that it was proper in the circumstances for the Regional Hearing Committee to have so relied on the confession.

The record shows that when the Appellant was asked initially to respond to the allegations he wrote a statement on 22nd October 2010 to the effect that sometime in 2008 he and two others had loaded an Air Conditioner from the Exchange Room and it had been taken to Harare and kept at someone’s home whilst awaiting a purchaser. Before the Regional Hearing Committee however he now alleged that he had been induced to write the statement in order to save Faith his relative, who was pregnant and had been detained in police cells in connection with the same matter. There was however no further evidence placed before the Committee to establish force or coercion.  In the absence of such evidence it was proper in my view for Regional Hearing Committee to have dismissed Appellant’s submissions and placed reliance on his confession to found conviction on the charges.

The second issue raised by the Appellant is that the Regional Hearing Authority erred in finding him guilty of contravening category 4.23 of the Code where no proof had been tendered by the Respondent of the existence of any standing orders/rules or procedures. The Respondent’s submission amounted to an admission that it may have failed to prove the existence of the standing procedure/rules on receiving of gifts from customers. The Respondent’s further submission is that it did however clearly establish theft and that charge warranted a penalty of dismissal.

It is clear from a perusal of the record that before the Regional Hearing the Appellant was questioned regarding the issue of standing rules/procedure on declaration of gifts received from customers.  The Appellant response was that he did not know of the standing rules/procedure. Thereafter there was no comment by the Committee; no further reference was made to the actual standing rules/procedure in the committee’s findings. The standing rules/procedure were not produced for the Appellant’s benefit. In the circumstances the Regional hearing Authority clearly erred in finding the Appellant guilty of contravening category 4.23 of the Code.  That conviction clearly cannot stand.

The third issue raised by the Appellant is whether the Respondent properly convicted him of the charge of theft. The Appellant position is that he was not properly convicted as it had not been established by the Respondent that he stole the air conditioner. Before the Regional Hearing Committee his defense to the charge of theft of air conditioner was that it had been donated to the three of them in 2007 by Mr Markingtosh, a white farmer as a gift. They intended to sell it and share the proceeds. The Appellant further submitted that the Air conditioner had been taken to Harare in December 2008.

The Respondent position is that the Appellant has fabricated a new line of defense. In his written submission in response to the initial charges by Respondent then admitted to the theft of the air conditioner. The Court was therefore urged to disregard the Appellant’s submissions.

The Appellant’s second version of events placed before the Regional Hearing Committee and also now before the Labour Court is totally unacceptable; the Appellant claims that the air-conditioner was donated by a white farmer Mr Makingtosh.  As submitted before the Regional Hearing Committee the donation was made to his two colleagues and not to him.  When pressed whether he had enough evidence to show that the air conditioner had come from Makingtosh Appellant then deviated and indicated he trusted the words of his colleagues.  The Appellant also at some point during the hearing submitted that he did not know where the Air Conditioner came from.  He then apologized to the Committee when the chairman suggested that the air conditioner in fact belonged to Tel-One.  I am satisfied  based on the facts and evidence in the record the Regional Hearing Committee correctly found the Appellant guilty on the charge of breach of category 4:12 that is theft, fraud including attempted theft or fraud.

The issue raised by Appellant that he in fact was acquitted in criminal matter is irrelevant the burden of proof in civil matters is after all on a balance of a probabilities and not beyond reasonable doubt.  See ZESA vs Dera 1998 (1) ZLR 500.  There must in a civil matter be a reasonable degree of probability but not so high as is required in a criminal case.  Based on evidence in the record it is more probable that the air conditioner was stolen from Respondent than not.  The Appellant was properly convicted of the charge of theft.

The last issue raised in this appeal is that of the penalty. It was submitted by the Appellant that the penalty of dismissal was too harsh.

The offence of theft is a very serious offence warranting a penalty of dismissal. The principle is established where the Disciplinary Authority has returned a penalty of dismissal the Court should not lightly interfere with the discretion of the Disciplinary Authority.  The Court was aptly referred to NEI Zimbabwe vs. Makuzva 2006 (1) ZLR 462 by Respondent.  I am satisfied given the circumstances of this case; that the Appellant was employed in a very senior position as the Acting T.T. in charge of Chatsworth Exchange; that he committed a very serious act of dishonesty enough to undermine the employer’s trust and confidence, the penalty of dismissal was clearly warranted. The appeal clearly cannot succeed.

In the circumstances it is hereby ordered as follows:

The Appellant’s conviction on the charge of contravening category 4.2.3 of the Code is hereby quashed.

The appeal is hereby dismissed with no order as to costs.

Chadyiwa & Associates – Appellant’s Legal Practitioners

Dondo & Partners – Respondent’s Legal Practitioners