Rushmore Chikosi v Marange Resources (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/636/2013
HARARE ON 11th NOVEMBER, 2013
CASE NO. LC/H/05/2013
AND 22 NOVEMBER, 2013
JUDGMENT NO. LC/H/636/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/636/2013

HARARE ON 11th NOVEMBER, 2013			CASE NO. LC/H/05/2013

AND 22 NOVEMBER, 2013

In the matter between

RUSHMORE CHIKOSI	     			–	Appellant

And

MARANGE RESOURCES (PVT) LTD			–	Respondent

Before The Honourable Manyangadze, J.

The Honourable Murasi, J.

For the Appellant: 		In Person

For the Respondent: 	S. Zvinavakobvu (Legal Practitioner)

MANYANGADZE, J.

This is an appeal against the decision of the Respondent’s Appeals Committee, which upheld the decision of the Disciplinary Committee, in terms of which Appellant was found guilty of misconduct and dismissed from employment.

The charge against the Appellant was contravention of clause 4 of Statutory Instrument 165 of 1992.

It is alleged that he incited his subordinates to engage in an unlawful job action.  In particular, it is alleged he instructed his subordinates to embark on a go slow on 22 November 2012.

Appellant was tried by a Disciplinary Committee which convicted him of the misconduct as charged and recommended his dismissal on 28 November 2012.

The Appeals Committee upheld the dismissal on 13 December 2012.  Having exhausted the available domestic remedies, Appellant then lodged his appeal with the Labour Court.

In his grounds of appeal, Appellant avers that “there was no enough evidence that I was guilty.” He then refers the court to the report of the disciplinary hearing.  The Appellant, it appears, just made a broad general allegation that there was insufficient evidence to find him guilty, as a basis for his appeal.  He did not itemize specific averments against the findings of the Disciplinary Committee.

In his oral submissions, Appellant tried to elaborate on his grounds of appeal.  His main point was that there was no independent witness that he instructed workers to underperform.  The sole witness on that important aspect was one Makanyire.  Appellant argued that there was no reason why the Disciplinary Committee was convinced by Makanyire’s evidence.

Appellant also asserted that the reason why production was low on that day was that they experienced some machine breakdowns which adversely affected operations.  Any underperformance noticed was not due to an instruction to deliberately reduce output.

Appellant tended to focus on the Disciplinary Committee hearing and not the Appeals Committee, which was the last disciplinary tribunal before he came to this court.  In his submissions to the Appeals Committee, Appellant was much more detailed than in his grounds of appeal to this court.  The Appeals Committee dealt with all his reasons for appeal, and upheld the decision of the Disciplinary Committee.  The reasons for appeal are contained in Appellant’s letter to the Appeals Committee dated 29 November 2012.  There are a whole lot of issues in that letter one has to glean the reasons for appeal therefrom.  These include the single testimony of Obert Makanyire, why other workers were not forthcoming with statements and divisions within the shift Appellant was working in.

In my view, the Appeals Committee did not misdirect itself in its assessment of the evidence the Disciplinary Committee relied on.  The Appeals Committee noted that Mr Obert Makanyire, the key witness was the only person who had the courage to testify before the Disciplinary Committee.  Other workers who were potential witnesses refused to come and give evidence.  In the circumstances the Disciplinary Committee had to rely on the evidence that came from Mr Makanyire.

It was the Appeals Committee’s finding that there was no motive to lie on the part of Mr Makanyire.  The divisions and power struggles alluded to by the Appellant were none of the witness’s business.  In other words, the witness was not aligned to the power games and jealousies allegedly prevailing within the shift Appellant was working in.  The Appellant himself did not align Makanyire to any of the factions.  It was therefore difficult for Appellant to provide the Appeals Committee with a basis on which to impugn the credibility of the key witness.

It is, I think, necessary to look at the evidence of Mr Obert Makanyire, at least some pertinent aspects thereof, to see if the verdict of the Disciplinary Committee is justified.

Respondent’s key witness, Mr Obert Makanyire, submitted a written statement, filed of record, which is in the form of a letter/report addressed to the Shift Boss (p.30 of the record).  The report, written in Shona, was to the effect that on 21 November 2012, around 9pm he asked his boss (the appellant) where he should work since his “Dozer” had now been repaired.  Appellant’s response was that he should work low low.  The actual words in the report are “akanditi iye shanda apo wongoitavo low low.”

Mr Makanyire said he was baffled by this response, as Appellant had never said such things ever since they started working together.  Mr Makanyire went on to state that after work he told one of the supervisors, Mr J. Mahembe what the Appellant had said to him.

The alleged utterances by the Appellant were repeated in the disciplinary hearing.

Counsel for the Respondent, in his oral submissions, pointed to some portions of the record of evidence that incriminate the Appellant.  On page 8 of the record (page 3 of the Disciplinary hearing minutes) is recorded this question and answer:

“LM:	When was Obert told to work low low?

MS:	Mahembe in his statement mentioned 21 November and he told Mukweya on 23rd of November.”

The Appellant made no response to these allegations, coming out in the course of the proceedings.  He had the right to question these witnesses on whatever averments they were making.  The gravamen of the charge was that he told workers who included Obert to “work low low.” Appellant was reasonably expected to vehemently challenge such information, whether uttered by Obert himself or persons to whom Obert allegedly made a report.

On page 13 (P.8 of the minutes) again there is this

exchange:

“OM:	My dozer had a breakdown, I moved from Charlie 10 and Chikosi approached me and instructed me to clear the area for parking because visitors were coming.  He then told me to work low low because Siziba was a problem.

RC:	Why didn’t you ask me.”

Appellant did not mount a serious challenge to this, yet it forms the core of the allegations he was facing.

On page 15 (p.10 of the minutes), Appellant was asked:

“LM:	Who commands the operators, do you agree that for 1 hour 30 minutes you never instructed anyone to go and attend Mahembe.?”

RC:	Yes

The Appellant was a supervisor.  It was unusual for him to spend 1 ½ hours without sending much needed trucks, or at least instructing someone to go and attend to whatever problem there was.  He did not challenge this allegation of inaction on his part, which tends to corroborate Makanyire’s evidence that he had received instructions to “work low low.”

It was the Appeals Committee’s finding that Mr Makanyire was a credible witness who was consistent and resolute in his evidence.

In the light of what appears on record, there seems to be no reasonable basis on which to interfere with the Appeals Committee’s decision both on the question of guilt and the penalty imposed.

The well recognized principle is that an appellate court generally refrains from interfering with the factual findings of a lower tribunal, unless the latter seriously misdirected itself in its findings.  In Innscor Africa (Pvt) Ltd v Letron Chimoto S.C.6/2012.  Malaba DCJ stated the principle as follows at p. 2-3 of the cyclostyled judgment:

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.  In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator.  The Labour Court merely substituted its own discretion for that of the arbitrator, without finding any recognizable misdirection on the part of the arbitrator.”

In casu, the Appellant has not shown “any recognizable misdirection” on the part of the Appeals Committee, on the basis of which he seeks this court’s interference.  In the circumstances, the court is unable to uphold his appeal, and it is accordingly ordered that:

The appeal be and is hereby dismissed with costs.

The decision of the Respondent’s Appeals Committee dated 13 December, 2012 be and is hereby upheld.

Manyangadze J.	………………………………………………………

Murasi J.		………………………………………………………