Patrick Simuyove v Zimbabwe Electricity and Distribution Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/337/2016
HARARE, 25 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/337/2016

HARARE, 25 FEBRUARY 2016				   CASE NO. LC/H/980/15

AND 27 MAY 2016

In the matter between:-

PATRICK SIMUYOVE		 				Appellant

And

ZIMBABWE ELECTRICITY AND				Respondent

DISTRIBUTION COMPANY

Before Honourable B.S. Chidziva, Judge

For Appellant		Mrs C. Mapanda (Legal Officer)

For Respondent		Mr M. Baera (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the determination of the Appeals Committee which upheld the decision of the Disciplinary Hearing Committee to dismiss him from employment.

The back ground facts of the matter are that,

The Appellant was charged for contravening Section 7 (1) (j) (v) of the NEC for the Zimbabwe Energy Industry Code of Conduct and Grievance Handling Procedure 2011.  It is alleged that he acted in a dishonesty manner by falsifying an official document or electronic record of a company or Organization or willfully recorded or causing to be recorded false information or misleading information.  It is alleged that he fraudulently altered electronic records of ten customers to staff tariffs with the intention of taking and converting 15 960KWH with a total value of $1 698.12 to his own private use and in the process deprived the organisation of its revenue.  The customers were not deserving this benefit as they are not employees of ZETDC or any ZESA Group of Companies.

The Appellant’s grounds of appeal as shown by the notice of appeal are as follows;

The Appeals Committee failed to address the glaring irregularity whereby the Appellant was not properly represented in that the legal practitioner was denied sufficient time to prepare and appear on his behalf due to short notice.

The Appeals Committee erred in relying upon the Appellant’s so called admission which was obtained under duress and should have been inadmissible evidence.

The Appeals Committee failed to take note of the parity principle and inconsistent application of the Code of Conduct which amounts to Selective imposition of a penalty.

The Appeals Committee erred in imposing a penalty of dismissal on a first offender.

The first and second grounds of appeal that have been raised by the Appellant are procedural issues against the procedural impropriety of the proceedings of the Disciplinary Hearing Committee.

It is a trite principle of law enshrined in Section 69 (4) of the Zimbabwe Constitution Amendment (N0. 20) 2013 that every person has the lawful right to be represented.  It states as follows:

“(4)	Every person has the right at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

In the case of Rwodzi vs Chegutu Municipality 2003 (1) 601 it was also held that

“.. there is no fixed period of notice.  All that is required is that a person must be given reasonable notice of an impending hearing.  The reasonableness of the amount of notice given in any particular case will depend upon factors such as the seriousness and complexity of the case.”

In this case two days could not have been sufficient for the lawyer to prepare a defence.  However the issue of being denied time to prepare his defence should have been raised on review.

Appellant has also told the court that admission to the offence was obtained by duress.  This claim has not been substantiated.  Furthermore being an issue of procedural impropriety it should have been raised on review and not appeal.  Evidence on record shows that he was tried at the Criminal Court and he was sentenced to 36 months imprisonment on the strength of the admission he had made through an e-mail.  In view of this therefore this ground of appeal cannot stand.

The Appellant has also stated that the Appeals Committee failed to take note of the parity principle in that other employees who had committed the same offence had not been disciplined.

The parity principle as stated in the case of Jial & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 is as follows;

“Like cases should be treated alike in that employees who behave in a similar position should have meted out to them much the same punishment.”

However in the case of Telone Pvt Ltd v Communications and Allied Services Workers Union SC 26/06 it was held that there is nothing in the Labour Act that limits the employer to taking disciplinary action against employees in situations where there is Specific prescription of misconduct in the Code of Conduct.

The Appellant was charged under a specific Section in the NEC for the Zimbabwe Energy Industry Code of Conduct and Grievances Handling Procedure 2011.  It is a charge of dishonesty which the Appellant committed on his own.  He also admitted to the offence through an e-mail and he was duly convicted.  The charge has a specific penalty which had to be imposed upon conviction.

The appeal committee also found that appellant paid restitution of $1 700,00 to ZETDC and thus it would be difficult to absolve him from the crime.

In view of the foregoing this court therefore finds that the appeal lacks merit.

Accordingly it is ordered that

The appeal be and is hereby dismissed with costs.

Baera & Company, respondent’s legal practitioners