N.S.S.A v Munyaradzi Mashavira

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/MC/07/2013
HELD AT MUTARE ON 06 FEBRUARY , 2013               CASE NO. LC/ MC/28/2011
In the matter between



N.S.S.A                                              –            Appellant
And

MUNYARADZI MASHAVIRA                                 –            Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant       - Mr S. Bhebhe(Legal Practitioner)
For Respondent      - Mr M. Maveyanadzo (Legal Practitioner)


MATANDA-MOYO, L.


      Respondent filed its heads of argument on 23January 2013, two years

after being served with Appellant’s heads. In terms of rule19 (2)(a) of this court’s

rules, Respondent was enjoined to file his heads of argument within 14days of

receipt of Appellant’s heads.    The Respondent is barred and the appeal is

rendered unopposed in terms of rule19(3)(a) of the Labour Court Rules (SIJ9/06).

In terms of the Labour Court rules I am proceeding to deal with the matter on

the merits as unopposed.



             The brief facts of the case are that the Respondent was employed

by the Appellant as the compliance Officer for the Rusape Branch. The Branch

had three individuals including the Respondent.
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      On 30June 2010 Respondent was recharged with fraud in contravention

of Section14.2.(4) of Respondent’s Code. He was also charged with stealing or

theft and gross negligence. Respondent appeared before a disciplinary hearing

on 7,14 and 28 July 2010 and for some reasons the hearings were postponed on

all three occasions. The Respondent referred the matter for conciliation. A

certificate of settlement was issued as follows;



      “Both parties agreed to return to their organization and have a hearing on19 August 2010.”


      On 19 August 2010 a disciplinary hearing was duly conducted and

Respondent was found guilty and dismissed from employment. Such letter of

dismissal was written on 24August 2010. It is important to note at this stage

that the 19th of August 2010 fell on a Thursday and the 24th on a Monday.



      Respondent appealed to the appeals committee which failed to reach a

consensus on penalty. The matter was subsequently refereed for conciliation.

Conciliation failed and the matter was referred for arbitration. The Arbitrator

found that
             “1)the hearing before the disciplinary committee was procedurally substantively
             unfair;
             2)complainant committed an unfair labour practice;
             3)the appeals panel committed an unfair labour practice by failing to determine the
             appeal within 20days.
             4)the Respondent did not commit the offences he was charged with;
             5)the penalty of dismissal imposed against the Respondent by the disciplinary
             committee was unfair.
             6)the Respondent be reinstated on his job without loss of salary or benefits and if
             reinstatement is no longer tenable, he be paid damages the quantum of which shall be



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            agreed by the parties failure of which the same shall be referred to the arbitrators for
            quantification.”



Aggrieved by the arbitrator’s ruling, Appellant appealed to this Court on the

following grounds;



      1) That the arbitrator erred in failing to appreciate that the initial hearing

         had been set aside. The Arbitrator set aside the rehearing based on

         the procedural irregularities of the initial hearing.

      2) That the Arbitrator erred in law in failing to give due weight and

         regard to the fact that the delay of over 30days in reaching a decision

         by the Disciplinary Committee had been remedied by a Certificate of

         Settlement.

      3) That the Arbitrator erred in concluding that such delay entitled

         Respondent to the remedy of reinstatement.

      4) That the Arbitrator erred in failing to find the Respondent guilty of the

         charges in the face of clear evidence that was before him.

      5) That the Arbitrator erred in finding that the use of documentary

         evidence at the hearing, without affording the Respondent an

         opportunity to cross examine the authors of such documents,

         infringed on the Respondent’s natural rights.



      Appellant prayed that the Arbitrator’s decision be set aside and that the

decision of the Disciplinary Committee be upheld.



      Appellant submitted that the Arbitrator erred in finding that the hearing

of the 19th August 2010 was a continuation of the hearings of 7,4 and 28 July

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2010 which had been held previously. The hearing of the 19August 2010 was

agreed during conciliation. Besides before then the matter had not been heard.



      On page23 of the record are minutes of the disciplinary hearing. On such

page it is clear that a D. Chipfunde was a member of the committee. From a

reading of such minutes the matter was heard that day and deferred to 16:00

pm before a verdict was reached. At the bottom of such minutes the name of

D.Chipfunde is not appearing and is replaced by D.Dzimunya who signed the

minutes on 15 September 2010. The Arbitrator found that such replacement

was prejudicial to the Respondent as D.Dzimunya had not heard the matter.

Such finding cannot be said to be grossly unreasonable.



      On the merits the Arbitrator based his finding on an affidavit by Gama

which absolved Respondent of any liability. Gama in his affidavit admitted to

stealing the monies without the involvement of the Respondent. The Arbitrator

reasoned as follows on page19 of the record;


            “if Gama admitted in his affidavit that he stole the money, then one wonders where
            Respondent comes in, in the case in casu. Aside from the affidavit Mr Gama also
            admitted in his warned and cautioned statement to the police that he stole $14 858.
            This crumbles Applicant’s case”



      Appellant submitted that the Arbitrator erred in basing his findings on the

affidavit by Gama whilst disregarding all other evidence available. I agree. The

Arbitrator was to look at the documentary evidence tendered and the evidence

of other witnesses and then decide whether, on a balance of probabilities the

Respondent was guilty of the charges preferred. From the evidence on file it is


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clear that the Respondent while receipting on receipts numbers 013055 and

013056 removed the carbon paper and failed to stamp the office copy. It is

common cause that the monies relating to such receipts went missing.



Gross negligence is defined in the code as;


              “An employee is grossly negligent if he fails to exercise proper care in the discharge
              of his duties amounting to loss of life or money.”


      It is common cause that in relation to the above receipt numbers

Respondent was grossly negligent and his negligence caused the loss of money.

I am satisfied that the charge of gross negligence was proved against the

Respondent.

      It is not in dispute that the Respondent was the supervisor of the Rusape

Branch. As a supervisor he had an obligation to ensure that his subordinates

performed     their duties well.          He was to ensure that the business of the

Appellant at Rusape Branch was conducted properly and efficiently. He became

accountable for the thefts and frauds that happened at the Branch.                            It is

unfortunate that he also failed to perform his duties well in receipting the

money. With such evidence the findings that he was part of the fraud is not

unreasonable. See Vincent Matienga Chiwaridzo vs Zimbabwe Traffic Safety

Board S/C 56/04; TM Supermarket vs Mangwiro SC 57-03.



      This takes me to the next issue of whether dismissal was the appropriate

remedy in the circumstances. Gross negligence and fraud are offences which

go to the root of the employment contract and dismissal is appropriate even for




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first offenders. See Mashonaland Turf Club vs George Mutandwa SC5/12 and

Innscor Africa (Pvt) Ltd vs Chimoto SC 6/12.



      I am thus satisfied that the procedural irregularities relied upon by the

Arbitrator are not such as to have the effect of vitiating the proceedings. The

evidence available proves the guilt of the Respondent on a balance of

probabilities.



In the result the appeal succeeds and it is ordered that;



      1) The Arbitrator’s decision is set aside.

      2) Respondent is guilty of gross negligence and fraud as charged and the

          decision to dismiss him from employment is upheld.

      3) There be no order as to costs.




Kantor and Immerman– Appellant’s Legal Practitioners

Chibaya and Partners- Respondents legal Practitioners




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