Nomatter Ngirazi v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/16/2020
HARARE, 27 NOVEMBER 2019
CASE NO. LC/H/89/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/16/2020

HARARE, 27 NOVEMBER 2019		     	     CASE NO. LC/H/89/19

AND 24 JANUARY, 2020

In the matter between:-

NOMATTER NGIRAZI						Appellant

AND

OK ZIMBABWE LIMITED					Respondent

Before The Honorable L. Hove, Judge:

For Appellant				In Person

For Respondent			Mrs R.T.L Matsika (Legal Practitioner)

HOVE J:

The appellant was employed as a teller by the Respondent. She faced allegations of misconduct and was found guilty and dismissed. She appealed to the Local Joint Committee against the employer’s decision and the appeal was unsuccessful. She unsuccessfully appealed again to the negotiating committee. She has now noted this appeal against the decision of the negotiating committee.

The facts of the matter are that the appellant was alleged to have processed a total of 31 cash back transactions to realize a total of $611,00. This was between 1 January 2018 and 30 April 2018. The total cash backs per day were above the Reserve Bank of Zimbabwe regulated amounts.

During the hearing before the Designated agent it was found that the appellant admitted that the cards used to unlawfully transact the cash backs were hers and she wanted the money for personal use. She also submitted that most of the transactions were done by her boyfriend with her consent. The appellant apologized for the offence and asked to be given a second chance.

The employer on pages 22 and 23 of the record considered the facts of the matter, and found her guilty as per her admission. She was dismissed from employment.

On appeal to the negotiating committee, after her initial appeal to the local joint committee, the decision to find her guilty and dismiss her was upheld. She appealed to this court and her grounds for appeal are briefly that:

1. 	The employer failed to conclude the disciplinary proceedings within the

stipulated time frames in the code ie the disciplinary proceedings were

concluded in 20 days as opposed to 14 days.

2.	The charges profferred against the applicant were inconsistent with or to

the actual violations as was required of the instruction given, upon its institution.

3.	The penalty was too harsh in view of the fact that the appellant had

pleaded guilty.

4.	The negotiating committee failed to take into account the circumstances

and procedural breaches, and

5.	The negotiating committee failed to Act equitably.

The grounds of appeal will be considered one after the other here under;

Ground of appeal number 1

The employer does not deny that it failed to conclude the proceedings within the stipulated 14 days. They explained that the matter was complex as they had to involve the audit team. Further it was submitted that the delay, in and of itself, is not sufficient to nullify the entire proceedings the hearing officer still had jurisdiction to proceed and finalize the proceedings even outside the 14 days.

That this is the correct position of law, is beyond dispute. The courts have repeatedly found that it is not all procedural irregularities which vitiate proceedings. The party alleging procedural irregularity must also show how he has been prejudiced by the alleged irregularity before proceedings can be vitiated.

See the case of Nyahuna v Barclays Bank SC 67/05 where the Learned Judge stated that;

“In order to succeed in having the proceedings set aside on the basis of procedural irregularity, it must be shown that the party concerned was prejudiced by the irregularity”.

In casu, no prejudice has been shown to have been suffered.

The court in the case of Air Zimbabwe P/L v Mnesa SC 89/04 also made the point that it is undesirable that Labour disputes should be decided on the basis of legal technicalities which do not cause prejudice but Labour disputes must be resolved on the basis of the merits of the matter. In casu, the appellant has not demonstrated why the matter should not be decided on the merits she must, as the court stated in the Air Zimbabwe case supra, escape the quencequences of her actions on the basis that she is innocent of the charges proferred against her and not on the basis of legal technicalities.

Ground of appeal number 2

This ground of appeal is not clear. It is not clear what aggrieves the appellant. The courts have also stated that grounds of appeal must clearly set out the basis of the complaint. If they are general, it is not a valid ground of appeal. In Fredrick Chimaiwache v The State SC 18/2013, the Learned Judge of appeal stated that;

“a notice of appeal must contain grounds that are clear and specific, if a ground of appeal is general, then it cannot be a valid ground of appeal…”

See also the case of Jensen v Acavalos 1993 (1) ZLR 216.

The appellant’s second ground of appeal is not clear. It is not specific. It does not inform the other party and the court what exactly it is that the appellant is complaining of.

This ground of appeal must thus be  struck off, it is not a valid ground of appeal.

Ground of appeal number 3

The appellant seems to suggest in this appeal that because she pleaded guilty, she acted in good faith and was undeserving of the penalty imposed on her. She believes that the penalty was punitive.

Firstly, a formal admission settles the question of liability. The appellant was guilty as per her plea of guilty. In the case of Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC the learned Judge of appeal stated as follows;

“A formal admission made in pleadings cannot be ignored. It prevents the leading of any further evidence to prove or disprove the admitted facts”.

The appellant in casu admits that she pleaded guilty, so she was accordingly found guilty.

Was the penalty harsh?

In deciding an appropriate penalty, the disciplinary authority took into account several factors which included that the appellant had asked for forgiveness and requested for a second chance, the mitigatory factors and the aggravating factors, and exercised its discretion on the appropriate penalty to impose. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss, an appeal court will generally not interfere with the employers decision to dismiss an employee found guilty of an act of misconduct which goes to the root of the contract of employment. See Mashonaland Turf Club v Mutangadura SC 5/2012.

In casu the employer took a serious view of the fact that the appellant breached the company procedures and instructions including the memo from the operations Executive and the Reserve Bank of Zimbabwe guidelines on cash backs. This court, siting as an appeal court cannot interfere with the penalty meted out. I am also of the view that the appellant took too casual an approach to her responsibilities in using the privileges availed to her. She let her boyfriend run lose with her cards thereby breaching the trust that her employer had in her that she would be responsible and cognizant of all the governing instructions and guidelines in managing her back backs.

She irresponsibly let a third party abuse her cards. The employer cannot be compelled to have her back in his employ after her irresponsible breach of the trust her employer had in her. There is therefore no reason to hold that there was any misdirection or unreasonableness. The ground of appeal is without merit.

Grounds of appeal number 4

Again, this ground of appeal is not clear and specific. The inconsistencies complained of are not specified. It is an invalid ground of appeal. In the Jensen case (supra) the court stated at page 220 that;

“a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity. It is not only bad but incurably bad….. It must be struck off……..”.

It is not the duty of the court to attempt to decipher a litigant’s intention where the litigant has not been clear.

The 4th ground being unclear and also not precise, must be struck off.

Ground of appeal number 5

Again it is not clear what principles of equity were contravened. The ground of appeal is unclear and it is not specific. One is left wandering what it is that has grieved the appellant. It must also be struck off.

The appeal is without merit and the following order is made.

Order:

The appeal be and is hereby dismissed with each party bearing its own costs.