Tichapera Makuwe v Zimbabwe Passengers Company

### Preamble
JUDGMENT NO LC/MC/01/14
IN THE LABOUR COURT OF ZIMBABWE
HELD AT MUTARE 28TH JUNE 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT MUTARE28TH JUNE 2013			CASE NO LC/MC/40/12

And 17 JANUARY, 2014

In the matter between:-

TICHAPERA MAKUWE					Appellant

And

ZIMBABWE PASSENGERS COMPANY			Respondent

Before The Honourable L.F. Kudya, Judge

For Appellant		Mr V.M. Gwande (Trade Unionist)

For Respondent		Mukwindidza Tinahse G (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the Respondent’s Appeals Committee which upheld the Disciplinary Committee’s decision to dismiss the Appellant following allegations of contravening the Respondent’s Code of Conduct.

Facts of the case are that on 6th April and 8th April 2012 the Appellant who was in the Respondent’s employ as a bus conductor was found with passengers aboard the bus who had not been issued with tickets.  On the 2nd occasion he is said to have left the bus unmanned for 2 hours contrary to what was expected of him as a conductor.  He was charged with contravening Section 4.11 (d) Appendix 2 (1) and Section 4.7 (c) Appendix 1 (2) that is failing to issue bus tickets and leaving the bus unattended.  He was brought before a disciplinary hearing committee which found him guilty of the conduct co ……………………. about and dismissed him from employment.  Aggrieved by his dismissal, the Appellant appealed to the internal Appeals Committee.  The Appeals Committee dismissed his appeal and confirmed his dismissal.  It is against the Appeals Committee’s decision that he has now appealed to this court.

The Appellant’s grounds of appeal are as follows:-

Guilty verdict was passed where there was no reasoned explanation or argument.  The Appeals Committee just rubber stamped the Disciplinary Committee’s decision that any evidential backing

Appellant was denied the chance to mitigate hence his guilt verdict and dismissal penalty were both based on proceedings which had violated his right to be heard as well as the right to mitigate afforded him by Section 12 B (4) of the Act.

The penalty meted and did not match the infraction complained about.  Had the Appellant been invited to mitigate his penalty could have consequently been reduced.  In the result the Appellant prayed that his appeal be upheld and that he be reinstated to his original position without loss of pay or benefits.  If reinstatement is no longer  an option he prayed that the he paid damages in place of reinstatement.

In response to the appeal, the Respondent maintains that;

Proof of a balance of probability was tendered to found the Appellant’s guilty.  That in the Respondent’s view, was sufficient to found the Appellant’s guilty.

Even though Appellant was not invited to mitigate that did not mean that he was denied the right to be heard.  In its view that also did not sta…….. that it was biased or had a predetermined agenda to dismiss him.

The Respondent therefore prayed that the appeal be dismissed as in its view it has not merit.

When the matter was heard at Mutare Circuit Court on 24th May 2013

the Respondent’s counsel indicated that he had just assumed agency hence he was not prepared to make submissions then.  It was therefore agreed upon by the parties that judgment be reserved on the terms that both parties would file with the court then Heads of Argument by 28th June 2013.   The Heads in question were not forth coming until they were filed finally on 19th September2013 hence the delay on the handing down of this judgment.

Being that as it may the crux of the matter is whether or not it can be said that the Appellant has made out a good case for an appeal.  It is also pertinent to observe at the outset that, what the Appellant set out as his grounds of appeal are all essentially review grounds as they all have to do with the process heading to his dismissal than the content of same.

The court is however prepared to excuse the Appellant in his failure to bring out the issues using the correct procedure provided by the rules given the union representation which detailed in his case.  The law relating to the upsetting of factual findings of a ………….. tribunal is set out in the case of AGV Hammon (Insert) and Hokonya (case) (Insert).  It is apparent from these copies that an appellate court will only interfere  where it is clear that the la……. Tribunal’s discretion was not exercised properly.

Turning to the facts of the instant case, each ground of appeal will be addressed in turn

Ground One

A reading of the record of the proceedings of the Disciplinary Committee shows that indeed the Appellant was found with the passengers without tickets and that he left the bus on meeting the Supervisor in respect of the 2nd count.  The only issue with that evidence is that it has 2 reasons to it and it is those 2 ……………….  Which the Appellant would have the court conclude that it meant that his guilt was not proven properly.

Appellant argues that there was need to call the affected passengers give evidence of how and why they were found by the Supervisor without tickets.  He also argues that the charge refers to some stage being reached …………………….. the offense can be said to have commenced.  He say that since the witness who gave evidence said that they had not gotten to any stage when they discovered the passengers without tickets, then he should not have been charged with the offense.  The question to be answered at this stage is whether the absence of passengers to testify detracted in any way from the charges which were faced by the Appellant.  It is noteworthy that indeed the passengers were found without the tickets and that the Appellant went away for more than 2 hours upon interfacing with the Supervisor.

Those facts on a balance of probability show that the Appellant had a case to answer.  The court is therefore satisfied that on view of the probability test applicable in labour matters the Respondent’s tribunal’s cannot be faulted for lo……. Held that the Appellant’s guilt was proven on a balance of probabilities.  As the Respondent firstly observed the Code does not oblige the Appeals Committee to call for further evidence when it is happy with the evidence on record before the Disciplinary Committee.  The court therefore finds no fault with the Appeals Committee’s decision to upheld the Appellant’s guilt and consequent dismissed.

Ground Two

The two grounds have been joined for convenience sake since they both speak to the issue of mitigation and the penalty which constructs are intricately intertwined.  A reading of the record indeed shows that the mitigation has to be  indicated before the penalty and if that is not done to the prejudice of the employee that anomaly should be put right.

The major test for correction in such matters is whether the party who was supposed to benefit from the mitigation exercise was prejudiced by the …………………………

In the ……………………….. case, the Appellant contends that had mitigation been relicited from the Appellant it is his considered new that he could have been penalised differently.  The law is clear that where there is procedural irregularity that should not automatically translate the reinstatement of the employee but to having the procedural irregularity being put right.  See Ticharera Nyahuma v Barlcays Bank (Insert)

Further to that the case of Air ………………….     ……………….. states clearly that one should not escape the consequences of his misconduct based on a procedural irregularity but only if that person is innocent. Applying that principle to the facts of the …………………….. case, it is imperative that the irregularities complained of by the Appellant should be put right so that it can be clear that justice was not only done but was also seen to be done in the case at hand.  The court is in the ultimate satisfied that the ……………… case is one ………………………… of the Respondent’s Disciplinary Committee …………………………  to hear the Appellant’s mitigation and to proceed to consider meting out the appropriate penalty on the Appellant.

IT IS ORDERED THAT

The appeal being with merit it be and is hereby upheld.

The Appeals Committee decision is set aside and on its place the following order is made:-

The Respondent’s Disciplinary Committee is to re-convene and hear the Appellant in mitigation and then proceed to mete out an appropriate penalty in the case.  This has to be done within 30 days of the receipt of this judgment failing which the Appellant shall be deemed to be reinstated without  loss of salary or benefits or alternatively an order of damages in place of reinstatement No quantum is to agreed upon by the parties failing which other party can approach this court for quantification.

Each party to bear its own costs.

L KUDYA

JUDGE – LABOUR COURT