Mutirikwi Sub-Catchment v Confidence Musara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/09/2016
MASVINGO, 18 MARCH 2016 &
CASE NO LC/MS/30/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MS/09/2016

MASVINGO, 18 MARCH 2016 &				        CASE NO LC/MS/30/2015

13 MAY 2016

In the matter between:

MUTIRIKWI SUB-CATCHMENT					 APPELLANT

Versus

CONFIDENCE MUSARA							 RESPONDENT

Before the Honourable D L Hove J

For the Appellant     Ms G Bwanya  (Legal Practitioner)

For the Respondent   C Sithole (Trade Unionist)

HOVE J:

The appellant was employed by the respondent initially as a book-keeper. He was dismissed from employment on 25 July 2014.

The facts of the matter are common cause or beyond dispute. These are that the appellant advertised for the post of book-keeper. The respondent applied and in his CV, he indicated that he was the holder of a Higher National Diploma in accounting. He alleged that the Diploma had been obtained from Hexco College in 2007. The respondent was as a result engaged to the post of a book keeper. He was later promoted to the post of an accountant on 15 April 2013. The appellant argues that the elevation was based on the consideration that the respondent was the holder of a Higher National Diploma in accounting as this was the minimum qualification for the job. It was however revealed by an internal audit that the respondent was not a holder of a Higher National Diploma in accounting.

He was charged with an act of misconduct , it being alleged that he had indicated that he was a holder of a Higher national Diploma in Accounting in his Curriculum Vitae (CV) when, he applied for the Bookkeeper’s post when he was not a holder of such a qualification.

He stated in his initial response that:

“My Higher National Diploma in Accounting is still pending.”

He was dismissed after being convicted of the offence of “lack of skill which you expressly or implied to possess.

During the disciplinary proceedings, the appellant pleaded guilty and admitted that he did not have the qualification although he had sat for the examination.

The employer considered that the employee had misrepresented his qualifications to the employer and as such he had gained an unfair advantage over other applicants. They also considered that the employee was not trustworthy as he failed to give accurate qualifications. The employee ought to have advised the then executive that he did not possess the required qualifications. Further the employer made the following observation:

“Considering the department (accounts), the employee had not been truthful and this may cascade to the finances that he oversees.”

He was dismissed and given his terminal benefits which he accepted.

The arbitrator found on the basis of these facts that the employee had been unfairly dismissed and ordered that he be reinstated with no loss of salary or benefits. If reinstatement was not possible, he was to be paid damages in lieu of reinstatement.

During the hearing, the point was taken that the appeal was improperly before the court and ought to be dismissed for failing to raise any points of law.

The employer referred the court to the cases of Sable Chemicals Industries Limited v Davit Peter Easter Brook SC 18-2010, Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 and Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34-2001.

These cases make the point that the position is now settled that a serious misdirection on the facts amounts to a misdirection in law, as the giving of reasons that are bad in law constitute failure, to hear and determine according to law. Also that a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.

I could not agree more with the sentiments of the learned judge in the case of National Foods Limited v Mugadza SC 105-95 when he made the following observations:

“It is true that this court has jurisdiction to hear an appeal from the tribunal on a point of law. But clearly if there is a serious misdirection on the fact it amounts to a misdirection in law.”

In casu the allegation has been made in the grounds of appeal that the arbitrator had so grossly misdirected himself on the facts that the misdirection amounted to a misdirection in law. The arbitrator came to a conclusion on the facts which conclusion cannot be supported on the basics of the evidence that was placed before him. I find that the matter is properly before the court.

The allegation was that the employee had misrepresented that he had a higher national diploma in accounting when he did not have one. He himself had accepted and pleaded guilty to the act of misconduct. He had been given his terminal benefits and accepted them. How then could the arbitrator faced with those facts have found that the dismissal was unfair?

In the case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 the court stated 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.”

I do not believe, in casu, that the arbitrator properly considered the facts before him. He allowed irrelevant issues to influence his mind and came up with a finding that is outrageous in its defiance of logic that this court is well within its rights to interfere with.

Whether or not the position of bookkeeper required a minimum qualification of a national diploma or not was immaterial to the issues the arbitrator had to decide. The allegation was that the respondent had been untruthful when he misrepresented and stated in his CV that he held a higher national diploma in accounting. Whether or not he had later been elevated was also immaterial.

A court or arbitrator is not to be concerned with the form of a transaction but with its substance. The debate of whether or not he had lacked skill in the performance of his duties was not the issue between the parties. The real issue was did he or did he not misrepresent that he had a higher national diploma in accounting.

The answer to the question is in the positive. The employer was correct in finding him guilty of the offence which he himself had pleaded guilty to.

In view of the above I make the following findings:

That the appeal is properly before the court as it raises points of law.

That the arbitrator seriously misdirected himself in his conclusions of facts and his award cannot be allowed to stand.

I therefore make the following order:

The appeal is allowed.

The decision of the arbitrator is set aside.

The employer’s decision to dismiss is upheld.

There is no order as to costs.

Chihambakwe, Makonese  Ncube, appellant’s legal practitioners