Tobias Mhondiwa v ZETDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/122/16
HELD AT HARARE 2 NOVEMBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/122/16

HELD AT HARARE 2 NOVEMBER 2015			CASE NO LC/H/20/15

& 18 MARCH 2016

In the matter between:

TOBIAS MHONDIWA					Appellant

And

ZETDC							Respondent

Before the Honourable R F Manyangadze, Judge

For Appellant			P Ngulube (Trade Unionist)

For Respondent		M Baera (Legal Practitioner)

MANYANGADZE, J:

This is an appeal from a decision of the respondent’s Appeals Committee, which upheld the dismissal of the appellant from the respondent’s employment.

The basic facts of this matter are that the respondent was employed by the appellant as Banking Hall Supervisor.  He was charged with misconduct in terms of the National Employment Council for the Zimbabwe Energy Industry Code of Conduct and Grievance Handling Procedures (NEC Code).  The charge, framed from section 7 (1) (i) (v) of the NEC Code, was Dishonesty, that is to say; falsifying an official document or electronic record of a Company/Organisation or wilfully recording or causing to be recorded therein false or misleading information or data

The factual particulars of the misconduct charge were that during the period extending from May 2013 to October 2013, the appellant recorded different amounts from those that were receipted from various customers.  He then recorded the differences created in accounts other than those of customers from whom the amounts were initially receipted.  For instance, on 16 May 2013, he recorded that Mr R Webb paid $6081.00 when Mr Webb had infact paid $6481.00.  He then recorded the difference of $400.00 as having been paid by Mr C Gwaruka.

The respondent’s Disciplinary Committee found him guilty as charged.  He appealed to the Appeals Committee, which, in a determination dated 12 December 2014, upheld his conviction and dismissal.

Aggrieved by the Appeals Committee’s determination, he noted an appeal with this court.  The grounds of appeal are stated as;

“1.   Ground of Appeal 1

Appeals Committee aquo erred at law is (sic) finding the appellant guilty whereas the same was not proven.

2.    Ground of Appeal 2

Penalty meted out by the Appeals Committee is so severe and grossly disproportionate to the charge so as to induce a sense of shock.”

The facts, as alleged by the respondent, are not in dispute.  All the appellant stated , as an explanation for his actions, was that the incorrect recordings were done erroneously.  They were mispostings which he described as genuine mistakes on his part.

At the hearing of the matter, Mr Ngulube, the trade which official who represented the appellant, seemed to be at pains to explain the conduct of the appellant.  He appeared to focus more on the aspect of the penalty than the conviction.  This prompted the court to seek clarification as his submissions were silent on conviction.  This is the exchange that took place:

“Q	You have addressed the court on penalty.  What is the appellant’s stance on the conviction

A	I would say he was wrongly convicted.  His conduct, it appears borders on criminal conduct.  This was a proper case were the rule in Mugabe & Mutezo v Zimbabwe Law Society applies, that where matters are of a civil matter, but bordering on criminal issues, threshold should be beyond reasonable doubt.  Appellant was wrongly convicted because the threshold used was on a preponderance of probabilities, conviction becomes unfair and unjust”

Apart from that, the appellant had no other submissions relating to his conviction.  It

seems he had no meaningful averments in this regard.  His representative in fact made the concession that if the test on a balance of probabilities is applied, the appellant would be guilty of misconduct as alleged.  The following exchange is instructive:

“Q	Are you implying that if the test on a balance of probabilities is used, appellant would be held liable

A	If that test is used, yes, he would be found liable – but the circumstances are such that it should have been proof beyond a reasonable doubt”

The law on the degree or standard of proof required in civil matters, disciplinary matters included, is well settled.  It is proof on a balance of probabilities.  Celebrated Authors Hoffman and Zeppert, in South African Law of Evidence at p 577, wrote:

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

The approach is the same in Zimbabwe.  The Supreme Court, in  ZESA v Dera 1998 (1) ZLR 500, stated, at p 503 that:

“It is startling and in my view an entirely novel proposition, that in civil cases, the standard of proof should be anything other than proof on a balance of probabilities.  The reasons, I have always understood, why in a criminal case proof beyond reasonable doubt is required, it is that the loss of a criminal case can result in death by hanging, incarceration or at least; the branding of a person as a criminal convict.  A civil case on the other hand, is merely a dispute between individuals.  The loss of such a case, however in terms of money or property, loss of employment or loss of face is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.”

As already indicated, it has been accepted, on behalf of the appellant, that if this test is applied, he cannot escape liability for the misconduct with which he has been charged.  The undisputed facts of the matter are indeed such that the only reasonable inference is one of guilt.  The facts are well summarised in the Appeals Committee’s determination as follows:

“  a)	On 16 May 2013, you recorded that Mr R Webb paid $6 081.00 instead of $6481.00 shown on receipt number 100918 under  the following accounts:

-	2256159		$4 453.00

-	2258472		$1 064.00

-	2258473		$   564.00

You went on to record the difference of $400.00 as having been paid by Mr Chamunorwa Gwaruka whose Account is 2298666.

On 27 May 2013, you recorded that Mr R Webb paid $8 775.00 instead of $9 175.00 as shown on bank statement and receipt number 1000875 under the following accounts:

2256159		$3 175.00

2258472		$2 600.00

2256473		$3 000.00

You went on to record the difference of $400.00 as having been paid by Mr Chamunorwa Gwaruka whose account number is 2298666.

On 3 October 2013, you recorded that Mr R Webb paid $9 242.00 instead of $9 572.00 shown on the bank statement and receipt number 1005429 under the following accounts:

2256159		$2 706.00

2258472		$3 036.00

2258473		$3 500.00

You went on to record the difference of $330.00 as having been paid by Mr Nhamo Burasho whose account number is 2290261.

On 31 August 2012 an amount of $562.00 was received from Tel-One meant for monthly rentals as reflected on Form A55 dated 3 September 2012 and supported by a letter from Tel-One dated July 2014.

Instead you posted this amount to account number 2290261 belonging to Mr Nhamo Burasho.”

One, or perhaps even two, instances of misposting by an inexperienced junior employee, may pass as a genuine mistake.  Several instances, by an experienced senior employee with supervisory responsibilities, stake the probabilities heavily against the appellant.  In this regard, it was submitted in respondent’s heads of argument;

“In the premises, reference is made to the case of Simudzirayi v CFX Bureau de Change (Pvt) Ltd SC 71/04 where the appellant had made errors in crediting accounts and had raised a plea of a mistake in his defence it was held by the court that the use of the wrong exchange rates which the appellant had said was a genuine human error in the execution of duty and not to be ascribed as outright dishonesty had been properly been rejected by the Tribunal.  The court held that the appellant had no less than four years experience in performing exchange related duties.  He had worked for a commercial bank for two years and spent two years working for the respondent.  He had received proper discharge of his duties so much that the use of wrong exchange rates would have been too obvious a mistake to be  committed by an employee of his experience and skill.  The appeal was therefore dismissed for lack of merit.”

In the circumstances, the appeal against conviction cannot be upheld.

The same applies to penalty.  The conduct by the appellant cannot be regarded as of a de minimis nature, as argued on behalf of the appellant at the hearing.  The conduct went to the root of the employment relationships.   Substantial amounts were being under recorded, and the differences credited to the wrong accounts.  This was repeatedly done by an officer senior enough to be entrusted with supervisory responsibilities.

There is, in my view, no basis on which to interfere with the penalty of dismissal.  In Standard Chartered Bank Ltd v Chapuka S 125/04 the Supreme Court stated, inter alia, that:

“The relationship between Standard Chartered and Chapuka was based upon trust and confidence.  It is sufficient that in dismissing Chapuka from employment Standard Chartered felt that as a result of his own acts of misconduct it could not continue in future to repose in him the trust and confidence that he would perform his duties as a senior member of staff with a high degree of honesty.  It was also sufficient that any reasonable employer in the position of Standard Chartered could on the facts have dismissed Chapuka for what he did.”

Similarly, any reasonable employer in the position of the respondent in casu would have been compelled to dismiss the appellant, having regard to the misconduct whose factual particulars have been looked at.

In the result, it is ordered that;

The appeal be and is hereby dismissed in its entirety.

The appellant shall bear the respondent’s costs.

Baera & Company, respondent’s legal practitioners