Newman Nyaumwe v Metallon Gold Zimbabwe (Pvt) Ltd t/a Redwing Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/560/16
HELD AT HARARE 4 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/560/16

HELD AT HARARE 4 JULY 2016				CASE NO LC/H/REV/54/13

& 9 SEPTEMBER 2016

In the matter between:

NEWMAN NYAUMWE				Applicant

And

METALLON GOLD ZIMBABWE (PVT) LTD		Respondent

t/a REDWING MINE

Before The Honourable Maxwell, J

For Applicant 			Mr T Nyakunika (Legal Practitioner)

For Respondent		Mr Z Makorie (Legal Practitioner)

MAXWELL J:

This is an application for review of and appeal against the decision of the Designated Authority dated 17 July 2013.  Applicant who had been employed by respondent was charged with theft.  He appeared before a disciplinary authority and was found guilty.  A penalty of dismissal was meted on him.  Applicant then appealed to the Designated Authority who dismissed his appeal.  Aggrieved, applicant then made the present application on 20 June 2013.  The following are the grounds for review;

The Designated Authority erred on points of law when he allowed the appeal to be heard despite protest by the appellant that the minutes were not a true reflection of the disciplinary hearing.  The minutes were not signed by the chairman and other parties involved in the disciplinary hearing.

The Designated Authority erred by failing to decided (sic) that the chairman of the Disciplinary Authority was biased as he descended into the arena by cross examining the applicant and overprotecting witnesses by asking them to repeat answers stating that the witnesses had not understood the question thereby distorting the witnesses’ evidence.

The Designated Authority erred on point of law by disallowing evidence of the same witnesses which the witnesses had testified in the criminal trial which was opposite to their version at the disciplinary hearing.

The Designated Authority was biased in such that during the appeal hearing, he produced further evidence on behalf of the employer in form of records.

The Designated Authority erred by failing to decide that the matter was not properly investigated as the employee was not represented during the investigations.

The Designated Authority failed to realise that the employer had failed to produce any evidence which indicate that the company had such type of machines as the ones recovered at court.

The Designated Authority erred on points of law by proceeding to give further verdict that the employee has to vacate the premises despite that the appellant is entitled to stay in the premises until the appeal is finalised.

The Designated Authority erred by failing to decide that the employee was performing duties of a Rockdrill supervisor grade 9 whilst he was an assistant sharpening grade 4.

Applicant also appealed against the decision of the Designated Authority on the

following grounds;

The Designated Authority erred on points of law when he allowed the appeal to be heard despite protest by the appellant that the minutes were not a true reflection of the disciplinary hearing.  The minutes were not signed by the chairman and other parties involved in the disciplinary hearing.

The Designated Authority erred on points of law by disallowing evidence of the same witnesses which the witnesses had testified in the criminal trial which was opposite to their version at the disciplinary hearing.

Applicant prayed for the setting aside of the decision of the Designated Authority

and for his reinstatement with full benefits.

In response respondent raised two preliminary issues.  The first was that the relief sought in the application for review is incompetent.  It further stated that the relief available on review is that the proceedings or the decision may be “set aside or corrected.”  Further that one cannot seek reinstatement through a review as applicant has done hence the relief sought is incompetent and applicant cannot succeed.

The second preliminary issue is that a perusal of the grounds of appeal shows that they are a regurgitation of the grounds of review.  In light of that, respondent submitted, there is no appeal to talk about and there is only an application for review before this court.  On that basis respondent prayed for the dismissed of the appeal.

On the merits of the matter, respondent disputed that the minutes were not a true reflection of the disciplinary hearing.  It stated that applicant had confirmed their correctness at the appeal hearing.  Respondent disputed that the Designated Authority was biased as the chairman had a duty to direct the hearing to ensure that the correct facts were presented.  Respondent pointed out that applicant did not seek to produce evidence of witnesses from the criminal case before the Designated Authority.  Respondent further pointed out that there was no bar on the part of the Designated Authority from accepting further evidence on the case at the appeal hearing.  Respondent disputed that lack of legal representation for applicant during the investigation was an irregularity.  Respondent averred that the misconduct committed by applicant was proved on a balance of probabilities as it was proved that the applicant was the sole custodian of the missing property.  Respondent also averred that the order for applicant to vacate company premises was valid as at the time the order was given applicant’s employment had been terminated and no appeal was pending.  Concerning the duties which were being performed by applicant, respondent stated that the allegation that he was performing duties of a Rockdrill supervisor grade 9 whilst he was an assistant sharpening grade 4 was raised for the first time on appeal.  Respondent further asserted that the issue of applicant’s position has no bearing on whether or not he is guilty of stealing the missing machines.  Respondent prayed for the dismissal of the application for review with costs.

At the hearing of the matter counsel for applicant conceded that the grounds of appeal were improper as they do not raise points of law and do not attack the merits of the decision.  He also conceded that grounds of review 3, 5, 6, 7 and 8 are improper as they are not dealing with procedural issues.  This judgment therefore is on the application for review, grounds 1, 2 and 4.

Ground for review One

Applicant criticises the Designated Authority for proceeding with the hearing in light of the fact that the minutes of the hearing a quo were not a true reflection of the proceedings therein.  He bases the criticism on the fact that the minutes were not signed by the participants in the disciplinary hearing.  Counsel for applicant submitted that there were issues which were not captured in the minutes.  Applicant’s criticism is not borne out by the record of proceedings.  Page 12 of the record contains minutes of the appeal hearing held on 17 June 2013.  The Designated Authority asked whether applicant had had an opportunity to go through the minutes of the initial hearing.  Applicant confirmed that he had.  He was asked to confirm their correctness.  Applicant objected to a point on page 10 bullet 5.  After an explanation from the Human Resources Official it is stated “Thereafter the appellant stated that the minutes were therefore a correct record.”  It therefore appears that the criticism is an afterthought.  As stated for respondent, there is no basis for this ground of review.  It therefore cannot succeed.

Ground for review 2

Applicant alleges bias on the chairman of the Disciplinary Authority and criticises the Designated Authority for not finding so.  Applicant bases his allegations on two issues.  Firstly, he alleges that evidence obtained from the criminal trial was directly contrary to the evidence at the disciplinary hearing.  It was submitted for applicant that the Designated Authority went to the extent of producing evidence on behalf of complainant and that would in the eyes of a reasonable litigant substantiate bias.  Counsel for applicant made reference to the case of Mupandasekwa v Green Motors Services (Pvt) Ltd SC 30/15 where it was stated that the allegation of bias must be raised before or during the disciplinary hearing and a request for recusal must be made.

Counsel for respondent disputed that evidence led at the criminal trial was opposite that led at the disciplinary hearing.  He referred to a discrepancy where Mr Chitambo stated that he found 19 machines during the criminal trial whereas at the disciplinary hearing the figure had changed to 17.  The bottom line is that there were machines which were missing even though the number is not certain.  As stated by counsel for respondent the witness was cross examined and the Disciplinary Committee was satisfied with his evidence.  It has not been demonstrated that the finding of the disciplinary committee was grossly unreasonable.  There is therefore no basis for this allegation.

Secondly applicant alleges that the Designated Authority descended into the arena by cross-examining him and overprotecting witnesses.  Respondent contends that the Designated Authority was not biased but was well within the confines of his mandate as an adjudicator.  Respondent stated that the Designated Authority questioned the applicant so that he could ventilate the evidence and be in a position to reach a just decision.  In heads of argument for applicant, reference is made to an extract from page 13 of the record in which applicant was questioned about a statement made by one Chikazingeni Denny (who is stated as Chakwengeni in heads of argument). Counsel for applicant commented that the Designated Authority was no longer relying on evidence on record but on other evidence from statements which they had obtained.  An examination of the record of proceedings that was placed before the Designated Authority shows that the criticism is not warranted.  Chikazingeni’s statement is part of the record.  It appears on page 48 of the record the Designated Authority was not wrong to make reference to it.  The allegation of overprotecting witnesses was not elaborated.  If therefore find no merit in it.  The allegation of bias is therefore without basis.

Ground for review four

Applicant alleges that the Designated Authority produced further evidence on behalf of the employer in the form of records.  Counsel for applicant submitted that the issue of the bias of the Designated Authority is addressed in heads of argument.  Apart from just stating that

“The matter in which the Designated Authority conducted himself during the proceedings, to the extent of producing evidence on behalf of the complainant would in the eyes of a reasonable litigant substantiate bias.”

Nothing further was submitted on this issue.  The heads of argument did not

take the matter any further.  The evidence produced for the complainant was not enumerated.  Counsel for respondent cannot be blamed for submitting that the heads of argument filed and the submissions made show that the point is not argued seriously.  I agree.  I therefore find no merit in this ground for review.

Consequently the application for review cannot succeed.  Counsel for applicant conceded that the appeal is improperly before the court.

Counsel for respondent urged the court to order costs on a legal practitioner and client scale. I am not persuaded that that is warranted in this case.  The following order is therefore appropriate.

The appeal be and is hereby struck off the roll for being improperly before the court as it is raising procedural issues.

The application for review be and is hereby dismissed for lack of merit.

Applicant is to pay costs of suit.

Mvere Chikamhi Mareanadzo, applicant’ legal practitioners

Coglan, Welsh & Guest, respondent’s legal practitioners