Webster Mbangami v OK Zimbabwe

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/131/2013
HARARE, 31 JULY, 2012
CASE NO. LC/H/166/2011
In the matter between
LC/H/131/2013
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IN THE LABOUR COURT 			JUDGMENT NO. LC/H/131/2013

HARARE, 31 JULY, 2012			CASE NO. LC/H/166/2011

In the matter between

WEBSTER MBANGAMI			-		Applicant

And

OK ZIMBABWE				-		Respondent

Before The Honourable B.T. Chivizhe: President

For Applicant 	-	Mr. W. Mbangani – In Person

For Respondent	-	Ms R.T.L Matsika – Legal Practitioner

Wintertons Legal Practitioners

CHIVIZHE, B.T.:

The above mentioned matter was set down for hearing before me on the 4th of April 2012.  During the course of hearing the Appellant then indicated his wish to produce certain documents as evidence before the court.

As these documents had not been produced in the proceedings a quo the Appellant was directed by the court to lodge a formal application for leave to introduce that evidence.  The Respondent was then granted leave to file its response to the application.  The Appellant having filed the application and the Respondent its response thereto the following is the court’s ruling on the application.

Before I address the merits of the application a brief summary of the facts is recessing.  The Appellant was employed by the Respondent as a Branch manager as the Respondent’s Machipisa Branch.  He was dismissed from employment on the 14th of October 2008 on charges of

Any act, conduct or omission inconsistence with the fulfillment of the express as implied conditions of employment as to constitute a breach of the contract going to its roof.

Wilful and serious breach of established, documented and published company rules, procedures, regulations and standing instructions including but not limited to fill procedures, safety rules, security measures, customer care rules and motor vehicle policies.

Habitual and substantial neglect of duty.

Misuse of authority.

The charges (b) and (d) arose from the fact that Appellant acting contrary to a standing instruction not to make bulk purchases had purchased 150 fancy loaves on the 11th of September, 2008 and another 180 loaves on the 12th of September, 2008.  Charges (a) and (d) arose from incidents where Appellant had encashed 50 personal cheques worth a total value of US$254 015.00.  Charge (c) and (a) were founded on alleged acts of negligence, non-involvement in planning for the Take-away and Butchery departments, post housekeeping, limited product failure to conduct a proper handover and takeover with the Buyer who had proceeded on leave, failure to order fish which other branches had in stock, etc.  The Appellant was found guilty on the charges by the Disciplinary Committee.  Appeals to the Appeals Committee and Final Appeals Committee were both unsuccessful.  His appeal to the Labour Court was heard on 12 October 2009 and the court directed a re-hearing of the appeal by the Appeals Committee and in turn the Final Appeals Committee.  This was done and when he was again found guilty on the charges Appellant appealed to the Labour Court for the second time.  It was during the hearing of that appeal the Appellant then made an application to introduce next evidence.

Section 89 (5) of the Labour Act as read with Section 90 (a) thereof given the Labour Court jurisdiction to hear and receive additional fresh evidence at appeal stage.  The Act however does not indicate how such discretion may be exercised.  In the Labour Court decision in Thomas Njerere N.O. vs Africa University LC/MC/17/2005 the Labour Court laid down the factors that may be considered by the Court.  Referring to a Supreme Court decision of warrant – Codington vs Jarstar Trust 2000 (2) ZLR 377 (s) were Marally JA (as he then was) stated the following as page 381 A-B.

Following the principles outlined in the Warrant – Coding ton judgment supra it would appear to the present application ought to fail on the basis that all the evidence Appellant wishes to lead was available to him before the matter was brought to the Labour Court.  Assuming that I am wrong in taking this approach I will proceed to demonstrate how each and every piece of evidence placed before the court does not meet my list of requirements outlined above.  I find it convenient to refer to the Annexures in the order in which they have been presented.

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In the circumstances it is the court’s finding that the evidence placed before the court does not have an important influence on the result of the case.  There has also been no cogent explanation tendered by the Appellant as to why the evidence was not placed before the Disciplinary Committee as well as the Appeals Committee.

Accordingly it is ordered that;

The application to lead additional evidence be and is hereby dismissed.

There will be no order as to cost.