Zimbabwe Consolidated Diamond Company (Pvt) Ltd v [Appellant Employee]

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/22/2024
HARARE, 16 OCTOBER 2024 & 30
JANUARY 2024
CASE NO LC/H/842/22
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ZIMBABWE CONSOLIDATED DIAMOND COMPANY (PVT) LTD

FBoerfothree tAheppHeollnaonut rable KudyaMJ . Karimanzira (Legal Practitioner) For the Respondent	J.R. Tsivama	(Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent employer’s internal appeals committee which upheld the appellant employee’s guilty verdict and dismissal penalty following charges of conduct inconsistent with his employment.

Brief facts of the matters are that appellant who was in the respondent’s employment as a security officer was charged with engaging in conduct inconsistent with his job in that he failed in his security duties by not detecting that there were intruders in Chikwarukwaru side of the diamond mine, also in that after being alerted of the security risk he did not report to his supervisors about the security risk. He was also alleged to have erred by allowing deployment of staff to an area that needed less security than Chikwarukwaru. In the main he was found to have acted below the expectation of a security officer placed in his stead. After being found guilty by the disciplinary committee he appealed internally without success. He has therefore now appealed to this court against the internal appeals officer’s decision and seeking that he be

reinstated to his employment without loss of salary or benefits or that he be paid damages in place of reinstatement.  He advanced the following appeal grounds :-

No evidence was advanced to prove that he had acted inconsistently with his duties if regard is had to the fact that (i) evidence spoke to fact that he made that search of illegal parties and implemented strategic man hunt (ii) he took lead in the search in the point instructed driver Mahachi and 2 canine details who reacted and covered the rear of the pit whilst he, Ushe and Madoro checked inside the pit (iii) appellant did not deem it necessary to interrogate the excavator operator since he was already in the pit and he did not see any illegal panners (iv) Appellant did not report any intrusion at Chikwarukwaru 14 because he did investigate and had not seen any disturbances hence there was nothing to report (v) the CCTV footage which was relied on by the committee was not juxtaposed against the appellant making it probable that he may not have seen the intruders at all.

Appeals Committee erred to rely and convict based on hearsay evidence. First hand key witnesses were not called.

Appeals Committee erred to find appellant guilty in circumstances which he was deemed to be vicariously liable for the tasks that were given by the supervisor yet there was no causal nexus between appellant’s actions and those of the Supervisor.

Appeals Committee erred to uphold a decision based on a CCTV footage which was not discovered by the appellant hence took appellant by surprise and also erred to rely on the evidence of an investigation officer and complainant who conducted an inspection in loco in the absence of the appellant.

In the result the appellant prayed that the appeal succeeds and that he be reinstated to his job without loss of salary or benefits or that he be paid damages in place of reinstatement.

In response to the appeal the respondent maintained that

Incriminating evidence against the appellant was placed before the disciplinary committee to the effect that (1) appellant reassigned or approved the reassigning of one of the security guards from Chikwarukwaru North pit which is a critical loading section of diamond ferrous material for a far less significant escort duties and that left Chikwarukwaru North pit uncovered and made it easier for illegal miners to gain access and avoid getting apprehended. (ii) no explanation for the redeployment was offered by appellant either to the hearing or to his subordinate supervisor who had initially

deployed the guards. (iii) the disciplinary hearing had the benefit of watching CCTV video footage which showed 2 illegal miners walking on the inside of the pit (iv) Appellant was advised over the radio of the presence of illegal miners in the same pit where he was but surprisingly he failed to detect or apprehend them even though one of them was reportedly injured by an excavator. (v) appellant did not record the intrusion by the illegal miners which he had been notified about in the occurrence book as per usual practice and (vi) there was no evidence that the appellant as the security officer had carried out a thorough check of the pit given the code message alerting him of the presence of illegal miners at the very time he was also in the pit, an omission which was confirmed by the video footage.

As an experienced security officer appellant’s attitude was lackadaisical and inconsistent with what is expected of an alert security officer with interest of his duties at heart. Appellant does not suggest that his omission were of no consequence and such were proved on a balance of probability.

Appellant does not show which part of law was misinterpreted. He only talks of the cumulative effect of factual findings which he claims renders the appeals officer’s decision erroneous. All he gave was a bare denial of the factual findings. He does not explain why he did not see intruders in the pit yet they were captured by CCTV, he does not say why he did not interrogate the excavator operator who had hit one of the illegal miners or why he had not reported the intrusion of illegal miners in the occurrence book.

Appellant failed to demonstrate how the disciplinary committee misdirected itself in accepting the complainants version to be more probable than his hence could not show why the appeals committee should have set aside the disciplinary committee’s decision. Appeal is not against the reasoning but the finding giving rise to the decision appealed against. Such has not been done on the case at hand.

Appellant does not mention which hearsay evidence he claims the disciplinary committee to have relied on. In any event such is not outlawed as it may only be to confirm what was said.

Sufficient evidence the bulk of which was not disputed was given to justify the conviction on a balance of probabilities. It is common cause that the illegal miners were spotted on CCTV and that appellant was alerted about their presence almost immediately through a radio message but surprisingly he did not see them.

Vis vicarious liability it is noteworthy that the employer blames appellant for his own omissions and no one else’s. The appeals authority did not make a finding of vicarious liability. It is thus a figment of appellant’s imagination.

Vis video footage not discovered hence taking appellant by surprise note that the minutes show that appellant did not object to the video use or request time to study it. Appeal authority can not be blamed for what was not put before it. Appellant also does not question the authority of the video footage hence there is no basis for the court to disregard it. Appellant also did not object to the reliance on the evidence of the investigating officer on the conduct of an inspection in loco in his absence. Such objections were not placed before the disciplinary committee so the appeals committee could not be blamed for placing reliance on such evidence.

In the result the respondent prayed that the appeal be dismissed with costs for lack of merit.

It is settled that an appeal authority is not invited to substitute its discretion for the trier of fact See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S). Each of the appeal grounds is addressed below

Ground 1

In this ground the appellant quizzes the sufficiency of the evidence tendered to support his guilt. It is settled that the standard of proof labour matters is proof on a balance of probabilities See ZESA vs Dera SC-79-98. Applying the test cited in the above case to the facts of the case at hand what sticks out clearly is the fact that appellant was alerted of the intrusion but he did little to address it. In any event the video footage showed clearly that there was indeed an intrusion. It would thus be baseless to fault the conclusion arrived at by the employer that appellant acted below the expectation of a security officer of his position. If indeed he was alerted of the intrusion it was imperative for him to interrogate the excavator driver who had been in contact with the injured illegal miner. In sum total the conclusions arrived at based on the facts of the case by the employer cannot be faulted at all. The ground being without merit should fail.

Ground 2

The issue of hearsay evidence does not take the appeal further in the court’s view. As stated above the actions by appellant fell short of what was expected of a security officer in his position and was confirmed by the CCTV evidence showing indeed that there were intrusions in the mine. Calling for direct evidence from the excavator driver in the court’s view would

ot have added or distracted from the finding of guilt that was arrived at on the matter. The ground also being without merit should fail.

Ground 3

As regards the issue of vicarious liability the record is replete with evidence that appellant’s guilt was based on his own omissions and not on the basis of vicarious liability. The ground is equally without foundation and should fail.

Ground 4

Appellant says he should have been given a chance to discover the CCTV footage and to comment on the propriety of relying on the investigation report on the in loco evidence yet the record is silent on where he quizzed all that. It is settled that a tribunal cannot be faulted for not dealing with what was not placed before it See Chikanda v United Touring Company SC- 7-99. It is clear that issues of discovery appropriateness of the investigation report evidence were clearly after thoughts by the appellant. They thus cannot sustain the appellant. The ground thus lacking in merit should also fail.

In the ultimate it is clear that all appeal grounds are without merit. The appeal should therefore be dismissed in its entirety.

IT IS ORDERED THAT