Remigio Makoni v Viking Security

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/195/2013
HELD AT HARARE ON 22 MARCH, 2012
CASE NO. LC/H/195/2013
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IN THE LABOUR COURT OF ZIMBABWE      	      JUDGMENT NO. LC/H/195/2013

HELD AT HARARE ON 22 MARCH, 2012	     	     	 CASE NO. LC/H/360/2010

In the matter between:-

REMIGIO MAKONI		-			Appellant

And

VIKING SECURITY		-			Respondent

Before The Honourable:	B.T. Chivizhe - President

Appellant 		-	Mr. Makoni (In Person)

For Respondent 	-	Mr. S. Noormohamed(Legal Practitioner)

CHIVIZHE B.T.:

The Appellant lodged his appeal against the determination by the Negotiating Committee of the Commercial Sector handed down on 13 June, 2011, reversing an earlier decision by the Mashonaland Local Committee and upholding the employer’s decision to dismiss him from employment.

The Appellant was employed by the Respondent as a Sergeant.  He was dismissed from employment following allegations of gross immoral, indecent and disgraceful conduct.  The Respondent’s case was that on the 12th of July, 2009 whilst he was on duty manning the main gate, one Shupikayi, a fellow employee, who was his girlfriend, visited him at Respondent’s premises.  The Appellant left his guard post and went to sit on a bench with Shupikayi.  A supervisor by the name Thomas arrived at the premises at about 1610 hours and knocked at the gate for ten minutes.  On receiving no response Thomas then opened the gate which Appellant had left unlocked and got into the premises.  Inside the premises he observed Appellant fondling Shupikayi whilst sitting on a bench.  The Appellant who had not detected Thomas’ presence then later went into a toilet with Shupikayi.  When Thomas followed into the toilet he found the two having sexual intercourse.

The appeal has been noted on two grounds.  These are;

The decision of the Negotiating Committee was biased and based on the company’s submission of which most were false.

In oral submissions before the court the Appellant introduced another ground which had not been included in his papers.  He submitted that there was the possibility of the Negotiating Committee having been corrupted or bribed by the Respondent.  As a result their judgment appeared biased in favour of the Respondent.

The Respondent objected to the ground of appeal which was being raised for the first time before the Labour Court.  The ground of appeal not having been included in Appellant’s papers clearly ought to be disallowed.  In the event that the court is wrong in taking this approach, the Appellant has, in any event, not placed before the court any evidence to prove that the Negotiating Committee received in the form of money or gifts bribes in order to rule in favour of Respondent.  That ground is consequently dismissed.

In respect of the bias allegation it is trite law that in order to establish bias, the onus rests on the person alleging bias to show that;

The bias was clearly actually displayed or;

That in the circumstances there was a real possibility of bias.

See A Guide to Administration and Local Government Law in Zimbabwe by Professor G. Feltoe 4th Edition, Legal Resources Foundation 2006 at pages 87-88.

The Appellant in casu has failed to substantiate the allegation of bias or show that there was a real likelihood of bias in the manner that the Negotiating Committee deliberated on the issues before it or in the decision reached.

The Appellant’s second line of defence is to deny that he had sexual intercourse with Shupikayi on the day in question.  He has submitted in support of his position the following;

That Shupikayi contrary to the Respondent’s assertions in the record was actually his wife or “second wife” and not his girlfriend.  She was in the habit of coming to his workplace to pick him up.  On this particular day she had come around 3:00pm

That some members of the Management were also after Shupikayi and were in the habit of dropping her at home using company motor vehicles as a way of finding favour with her.

That the main witness Simbisayi had been threatened or forced to testify against the Appellant after she had also been found watching Television during working hours.

The Respondent disputed all the submissions made by the Appellant.

I have had to dismiss all the points raised by the Appellant.  With regards the issue as to whether Shupikayi was Appellant’s girlfriend or “wife” or “second wife” for that matter it is not clear how this fact would assist the Appellant’s case.  In any event the record shows clearly during proceedings he was referring to her as his girlfriend (page 39).  For some unexplained reason the Appellant before the Labour Court is now referring to her as a “wife” in an apparent contradiction to his earlier submissions.  The point is that whether Shupikayi is his girlfriend or wife is immaterial.  The conduct proscribed by the Code is that of engaging in sexual intercourse at the workplace during working hours it doesn’t matter with who you engage in that act.  The charge leveled against Appellant therefore was of gross immoral, indecent and disgraceful conduct at the workplace in that he had sexual intercourse with Shupikayi in the toilet at the work place.  The Appellant needed in his defence to prove that he had not engaged in that conduct.  Appellant failed dismally to disprove the charge.

The Appellant also suggested that other members of Management were also interested in Shupikayi and therefore they fabricated charges against him.  On page 39 of the record the Appellant when asked to respond to the charges had indeed raised the point that the N.C.O (witness - Thomas) had also been pestering Shupikayi.  This issue although raised was not however canvassed in the hearings aquo before the Designated Agent, the Local Joint Committee or the Negotiating Committee.  The point is even if the witness Thomas or any other members of management were interested in Shupikayi why would they fabricate the case against the Appellant in order to do what? If the idea was to discharge Appellant from service in order to get access to Shupikayi, She according to submissions before the court, also left employment shortly before Appellant.  There was clearly no motive on Thomas’ part or for anyone in the management team to fabricate against the Appellant.

Even if it could be said that witness Thomas’ evidence was tainted as a result of his interest in Shupikayi, Thomas’ evidence was to a large extent corroborated by Simbisayi who was the controller in charge and was sitting at the material time in the caretakers’ room.  Simbisayi’s evidence was that upon Shupikayi’s arrival Appellant left the main gate and went and sat on a bench with Shupikayi; that she personally had gone into the caretakers’ room to watch a television coverage of a soccer match; that it was at this time, she saw Appellant and Shupikayi relocate to yet another bench “B” preceding to the kitchen entrance.  The court dismissed the Appellant’s submission that the witness Simbisayi evidence had been coerced and forced on the basis that she had also been found watching television during working hours.  It is clear from Simbisayi’s testimony on page 19/20 that she boldly and openly admitted that she was watching television at the material time when Appellant was sitting outside with Shupikayi.  Her testimony is not consistent with someone who had been coerced or forced to make a statement.

My finding is based on the evidence of the witnesses the Appellant was indeed found having sexual intercourse in the toilet with Shupikayi.  Taking into account the totality of that evidence, I am satisfied the Appellant was properly convicted on the charge.  The Negotiating Committee did not err in its conclusions.  The appeal clearly lacks merit.  It is accordingly dismissed with no order as to costs.