Stewart Mukahanana v Parks and Wildlife Management Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/175/2014
HARARE, 13 FEBRUARY 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/175/2014

HARARE, 13 FEBRUARY 2014 &			 CASE NO LC/H/348/2009

28 MARCH 2014

In the matter between:

STEWART MUKAHANANA						APPELLANT

Versus

PARKS AND WILDLIFE MANAGEMENT				RESPONDENT

AUTHORITY

Before the Honourable D L Hove	:	Judge

The Appellant in Person

For the Respondent		K Binton (Human Resources Officer)

HOVE, J:

The facts of this matter are not really in dispute. They are that the appellant was accused of stealing certain items at the work place by a colleague.

The two met at the gate at lunch time and the appellant grabbed his colleague’s work suit and according to a witness asked him why he hated him. The witnesses said that the appellant dragged the colleague. Mr Munyawiri the colleague claimed that he had been kicked and had his work suit torn when the appellant dragged him.

The appellant denied that he had assaulted the colleague. When he was asked why he had paid a deposit fine at the police station, he alleged that he had been arrested before and spent several days at the police station. This experience traumatized him. He was innocent then. He did not want to spend another needless period in the cells and therefore decided to pay the deposit fine so that he could be released to go home.

The investigation committee at the work place investigated the events of the fateful day. The findings by the investigating team were:

“1.	The way Mr Munyawiri approached Mr Mukahanana was provoking and offending as he was accusing him of stealing bearings.

2.	Mr Mukahanana (“the appellant”) paid admission of guilt fine because he was once detained in cells for three days being accused of stealing bearings which he was later proved innocent.

3.	Most witnesses were saying that the relationship at VMU was not good because of the previous issues between Mr Mukahanana and the bosses.

4.	Of all the witnesses no one mentioned that Mr Munyawiri was attacked.

5.	Gravity of the case should have been handled at station level by the workshop foreman.”

The team then recommended that:

“1.	The case is not strong one to warrant a disciplinary hearing.

2.	Mr Mukahanana should be transferred to another station with immediate effect since there is no sound working relations between him and his bosses.”

The investigating team had taken into account that there had been extreme provocation and this had resulted in the appellant demanding from Mr Munyawiri why he hated him? There had been nothing stolen but Mr Munyawiri had insinuated that the appellant had stolen because the tool box was open.

One of the witnesses said:

“… after opening (the door) other workers came in together with Mr Mukahanana. When Mr Munyawiri saw that Mukahanana was also in the room, he came in and asked who had opened the box of the bearings but the way he asked everyone knew that he was talking to Mr Mukahanana. He was accusing Mr Mukahanana of being a thief and they started shouting at each other.”

The disciplinary committee looked at the events at the gate but ignored the provocation that induced the appellant’s reaction when held Mr Munyawiri and asked how he had wronged him since he kept accusing him of stealing.

The disciplinary committee fell into error when they failed to consider that the appellant had reacted to extreme provocation and even then did not actually assault his colleague.

The conduct of the appellant’s bosses in rejecting the recommendations of an independent investigating team seems to bear out the finding by the investigating team that there was bad blood between the appellant and his bosses hence the recommendation that he be transferred.

There was no evidence from the witnesses that the appellant had actually assaulted Mr Munyawiri. The probabilities are that the appellant may really have paid the admission of guilt to save himself from a needless stay in police cells as he had done previously.

In the case of CohCoh Enterprises (Pvt) Ltd  v T Mativenga&Anor SC-30-2001 the court said:

“I incline to the view that where a code states that certain conduct “warrants” dismissal, it does not mean that where conduct is proved (like in this case) dismissal must inevitably follow.”

In this case, the appellant’s conduct was as a result of provocation. This ought to have been taken into account. The fact that no one else actually saw Mr Munyawiri being assaulted also ought to have been considered.  It was only Mr Munyawiri who said he was kicked and punched. Surely if this had happened the witnesses would not have failed to mention it. The fact also that the matter was trivial also ought to have dissuaded the appellant’s bosses from persisting with the disciplinary proceedings inspite of the recommendations from the investigation team.

Mr Munyawiri had a motive to lie about the ‘the assault’ since there appears to have been bad blood between him and the appellant. His evidence ought not to have prevailed over that of three other witnesses.

It is for the above reason that I am unable to confirm the decision to find the appellant guilty of assault.

In the result, I make the following order:

The employer’s decision to dismiss the appellant is set aside.

The appellant is to be re-instated into his position.

Should re-instatement no longer be an option, the appellant is to be paid damages for the premature loss of his job.

Should parties fail to agree on the quantum of damages pursuant to paragraph 3 above, either party can approach the court for quantification.

Each party bears its own costs.

D L HOVE

JUDGE – LABOUR COURT