Tatenda Chinoda v Traffic Safety Council of Zimbabwe

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HARARE, 19 JUNE,
JUDGMENT NO. LC/H/188/23
CASE NO. LC/H/658/22
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 19TH JUNE,
2023 AND 4TH, JULY, 2023

TATENDA CHINODA
Appellant

And
TRAFFIC SAFETY COUNCIL OF
ZIMBABWE

Respondent
t

Before the Honourable Kachambwa, Judge;

For Appellant: R. Matsikidze (Legal Practitioner)

For Respondent: J. Mapuranga Ndoro (Legal Practitioner)

KACHAMBWA, J:

The Appeal

1. This is an appeal against the decision of the judgment of the Appeal Committee at the workplace. The appellant was charged of 4 and convicted of 2 charges of acts of misconduct in terms of the employment code. A penalty of dismissal was imposed. The appeal is against both conviction and penalty.

The Facts of the Case


2. This is a case which could have been heard as a stated case because the facts are largely not in dispute. What is in dispute is their interpretation. The facts are that there was a vacancy at the workplace which was advertised.

The appellant did not qualify and had previously been excluded. He was not happy with his exclusion from the list of candidates. He wrote a large dossier seeking to be included. He gave this dossier to a bishop of a church whose church the chairperson of the board attended. The dossier was to be given to the chairman. The appellant sought to be included as a candidate. In the dossier he enclosed his party card.

The Charges

3. The appellant faced four charges as follows;

3.1. "Fraud/corruption Section D of the Code

In that, you attempted to induce the Chairman of the Board to include you in a recruitment process that you did not qualify for. Your dossier delivered to the Chairman by a third party was designed to: a) Invite untoward surveillance upon the Chairman by the delivering 3rd party and corruptly influence the Chairman to act according to your will.

b) Induce the Chairman to consider your suitability for the position outside of the settled recruitment process.

c) Intimidate the Chairman, as the dossier included past approaches by yourself to the Ministry, the Office of the President and Cabinet as well as the Ministry of Labour.

3.1.2. Theft of Confidential Company Information:-


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 You included in your dossier, correspondence between the erstwhile Minister of Transport and Infrastructural Development Honourable J. B. Matiza and the erstwhile Board Chairperson Mr A. Mugabe.

i) The letter was not addressed to you and you did not acquire it through the set down procedures of obtaining sensitive organisational correspondence.

ii) Suffice to state that you have been conducting unauthorised surveillance on the Organisation with the intention to intimidate / blackmail the Organisation and corruptly advance your career.

3.2. Behaviour likely to harm the reputation of the council Section D (5) of the Code:-

It is part of your contract of employment to act in a manner that promotes the interests of the council and to safeguard the council’s reputation. Contrary to the council expectations of your performance and inconsistent to the fulfilment of your express and implied conditions of your employment, you have disparaged the reputation of your employer by; a) Failing to prosecute within a reasonable time your complaint to the Ministry of Labour of an unfair labour practice.

b) Approaching 3rd parties to intervene in your dispute with the employer which third parties are external to the employment relationship, but are stakeholders to your employer.

3.3. Failure to comply with the express terms of your employment contract:-

In that, you failed to follow the laid down grievance procedure. In terms of your employment contract, you are required to abide by the Code of Conduct and grievance procedure.

a) You ignored the set criteria for resolving grievances and instead adopted a criteria that is against the spirit of the agreement between the employer and all other employees within the organisation.


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In particular, you abused your political influence by leap frogging the organisational decision making structures”.

4. The appellant was convicted of the first and third charges and a penalty of dismissal was effected for the conviction of fraud/corruption. A penalty of a final written warning was imposed for conduct likely to harm the reputation of the council.

The Grounds of Appeal

5. The appellant raised four grounds of appeal as follows:-

“1. The Appeals Committee grossly misdirected itself factually and at law by upholding the findings of the Disciplinary Committee in finding the appellant guilty of fraud or corruption when the evidence led did not prove corruption or fraud. The appellant only raised a grievance which the employer ought to have addressed and not to punish him.

2. The Appeals Committee grossly misdirected itself factually and at law by upholding the findings of the Disciplinary Committee in finding the appellant guilty of behaviour likely to harm the reputation of the council when it was established on a balance of probabilities that the appellant’s actions were meant to protect the reputation of the council and not to harm it.

3. The Appeals Committee grossly misdirected itself in fact and in law by failing to make a finding that the Disciplinary Committee erred in not holding that the failure by the Respondent to address the grievance raised was an act of unfair labour practice in terms of section 6(1)(e) of the Labour Act [Chapter 28:01].

4. The Appeals Committee grossly misdirected itself factually and at law in upholding the dismissal of the Appellant from employment despite lack of
 4 evidence in both allegations and the existence of extenuating circumstances.

He prayed for a setting aside of his conviction and the penalty of dismissal. He did not address the penalty of the written warning. He asked for reinstatement or payment of damages.

Arguments

6. The appellant’s argument was simply that his intention was to have his grievance resolved. He did not intend to corruptly influence the chairman and he did not intend to cause disrepute to the board. On the penalty of dismissal the argument was that it was excessive in the circumstances.

7. On the other hand the respondent insisted that the charges that the appellant was convicted of were found. The penalty of dismissal was said to fit the misconduct.

Analysis

8. As pointed out at the beginning this is a case that could have placed before the tribunal as a stated case. It’s purely a question of how one interprets the facts. Looking at the dossier and the history of the case one is forgiven to conclude that the appellant was seeking to take his fight to a new level where he wanted to use political clout and his high offices connections to influence the chairperson of the board. That is the corruption of it. That process was also conduct that could cause disrepute to the respondent. The conviction on these two charges appears proper on a balance of probabilities.
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9. On the penalty of dismissal, firstly it is discretional and secondly the misconduct appears serious. This is more so taking into account the threat to the independence of the board. Once outside forces that are not part of the dispute resolution set by the system are allowed to influence decisions the end of it

10. could be anything one can imagine. Therefore a penalty of dismissal is not out of place.

Disposition

From the foregoing the appeal cannot stand. It must be dismissed. Normally costs follow the results. No case was put up neither is it apparent on the face of it for the costs not to follow the results. Accordingly it is ordered as follows;

1. The appeal be and is hereby dismissed with costs.


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