A. Sosa v ZESA Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/418/2013
HELD AT HARARE ON 31 JULY, 2012
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	         	      JUDGMENT NO. LC/H/418/2013

HELD AT HARARE ON 31 JULY, 2012		                  CASE NO. LC/H/374A/09

AND 13 SEPTEMBER 2013

In the matter between

A. SOSA					–		Appellant

And

ZESA HOLDINGS (PVT) LTD		–		Respondent

Before The Honourable B.T. Chivizhe, President

For Appellant 	-	Mr. J. Dondo (Legal Practitioner)

For Respondent  	-	Mr. G.M. Churu  (Group Legal Practitioner)

CHIVIZHE, B.T.

The appeal has been lodged against the determination by Respondent’s Appeals Committee handed down on 20 October, 2009 wherein the Appeals Committee confirmed the findings and penalty of dismissal imposed by the Disciplinary Committee.

The background facts to the matter are as follows; The Appellant is a former employee of Respondent.  He was arraigned before the Respondent’s Disciplinary Committee on 4 July 2007 facing firstly a charge of contravening Section 7 (1)(j)(i) of the ZESA Code of Conduct – Dishonesty that is taking and converting or attempting to take and convert to one’s own private use property and moneys belonging to the Authority or in  its lawful possession The allegations were that on 28 March 2007 the Appellant stole a 35 meter 4 Core Cable belonging to ZEDC from Number 19. Gwavava Road, Mufakose which he intended to use on a private job at Number 26 Maarsdorp Road, Alexander Park.

The second charge leveled was contravention of Section 7(1)(g)(vii) of the ZESA Code of Conduct – Disorderly or Objectionable behaviour that is conducting oneself or behaving  in a manner which brings or is likely to bring the name of the authority into disrepute  or to tarnish the image of the Authority.  The allegations were that he had allegedly removed the cable and other accessories at Number 19 Gwavava Road, Mufakose and paid the customer $500 000  (Zim).  This made customers view ZEDC employees as thieves who steal from employer’s infrastructure thus tarnishing the image of the authority.

The third charge involved contravention of Section 7 (1)(h)(ii)  of the ZESA Code of Conduct a loss, damage or misuse of authority property that is to say misusing or making unauthorized use of property belonging to the Authority or in its lawful possession.  The allegations were that the Appellant had used a ZEDC truck fleet Number 5074 to carry 35 meters of 4 Core Cable stolen from No. 19 Gwavava Road, Mufakose to Number 26 Maarsdorp Road Alexandra Park without permission from his supervisor.

The fourth and final charge involved contravention of Section 7(1)(f)(ii) of the ZESA Code of Conduct - Breach of contract of employment that is to say engaging in any occupation or undertaking any work outside the scope of the interests of the Authority (including appointment as a director of any company, manager of any firm, partnership in company and member of a local authority) without the permission of the Chief Executive or the Board.  The allegations under this charge where that Appellant had entered into a fix and supply contract to upgrade electricity supplies from a single phase to a 3 phase at Number 26 Maarsdorp Road Alexandra Park without permission form the Chief Executive or the Board.

The Appellant pleaded guilty to the third charge and not guilty to the rest of the charges.  The Disciplinary Hearing Committee found Appellant guilty on the third charge (through his own admission) and on the fourth charge.  The Disciplinary Hearing Committee thereafter imposed a dismissal penalty with effect from 27 April 2007.  The Appellant was aggrieved by the determination and appealed to the Appeals Committee. The appeal was lodged against both penalty and conviction in respect of the fourth charge only.  The Appeals  Committee dismissed his appeal and confirmed the dismissal penalty imposed by the Disciplinary Committee.  Still aggrieved the Appellant then lodged his appeal with the Labour Court. The appeal has been noted on the following grounds of appeal;

The Respondent’s Appeals Committee erred and misdirected itself at law in making a finding that Appellant had engaged in an occupation or undertaking to do work outside the scope of and interests of the Authority.

More particularly the Respondent’s appeals committee ignored the fact that Appellant was not party to the contract between FLAMMABLE CONSTRUCTION  and 	SHELTON MUZONDIWA and that no credible evidence was adduced to demonstrate Appellant’s involvement in the transaction.

Respondent’s Appeals Committee erred and misdirected itself in arriving at a decision to dismiss the Appellant from employment.  In particular the decision to dismiss Appellant from employment was unfair and unduly harsh taking into account factors to be considered before dismissal can be imposed as a penalty and taking into account Appellant’s employment history and his personal circumstances.

It is important to underline that the present appeal has been noted principally against conviction and penalty in respect of the fourth charge.  The Appellant having pleaded guilty to the third charge has not appealed against his conviction on that charge.

The Appellant submission in the first ground of appeal is that he was wrongly convicted of the fourth charge of breach of contract of employment by the Appeals Committee on the basis that;

The Appeals Committee failed to appreciate that he was not party to the contract entered into between Flammable Construction and Shelton Muzondiwa.

that no credible evidence had been adduced to show his involvement in the contractual arrangement with Flammable – his only role was to transport the cables for which pleaded he guilty.

the evidence of the witness Magaronga did not implicate him directly in the  arrangement.

It is clear in casu that in order for the Appeals Committee to justify the conviction on the fourth charge Respondent needed to prove on a balance of probabilities that Appellant had engaged in an occupation or undertaking to do work outside the scope of interest of the Respondent.  Clearly the Appeals Committee could not rely on the contract which was between Flammable Construction, the hiring company and Shelton Muzondiwa (Appellant’s accomplice).  The Appeals Committee relied heavily on the evidence of the witness Magoronga.

It was Magoronga’s evidence in his initial statement that he had met Shelton Muzondiwa at his house attending to disconnection of lights; they had discussed his application to convert power supply from single phase to 3 phase at his work place; Shelton offered to take up the contract and indicated he and his colleagues would do the job on a part time basis; Shelton had verbally indicated that the supply and fix contract plus labour would cost $20 000 000,00 and a deposit of $1500,00 would be required; the contract was thereafter offered to the three colleagues; the agreement was subsequently reduced to writing and the deposit was paid in cash;  the contractors had then moved on to the premises and supplied the equipment; trenching was commenced, but after that the equipment was found to be inadequate.  The contractors undertook to supply other suitable equipment.

Mr. Magoronga also gave similar evidence before the initial disciplinary hearing.  Under cross examination he indicated that Shelton signed the contract but gave the ZESA application to Appellant to drop off at ZESA.  He also indicated that whilst Shelton was the go between he had however indicated he would do the job with his two colleagues.  Mr Magoronga also submitted that he had met the two colleagues at Magistrates Court whilst they were in a ZESA truck.  They had driven to his work place thereafter.

It is clear from the witness’s evidence that the Appellant’s conduct went beyond transporting the cables from Mufakose to Alexandra Park.  There was enough evidence in my view to suggest that the three were actually working in collusion.

From Magoronga’s evidence it is clear that although Appellant was not party to the actual contract with Flammable the Appellant clearly associated himself with the deeds of the other two principal offenders.  He facilitated the transportation of what he clearly knew to be stolen cables from one point to the other.  Given his position as supervisor and his experience he could not claim ignorance as to what the cables were going to be used for.  Indeed the Appeals Committee rejected that claim.  He was also supposed to facilitate the processing of the application at ZESA.  He also according to Magoronga attended at the site when the work was being carried out although the three did not at the time use the ZESA car.  It is important to note that Magoronga was not known to Shelton, Tom and the Appellant before the commencement of the case.  He would have no reason to therefore fabricate against all three Appellant included.

I am satisfied that on the basis of facts and evidence before it the Appeals Committee was correct in finding Appellant guilty on the charge.

The submission was also made by Appellant that a penalty less than dismissal ought to have been imposed especially considering the mitigatory factors in this case.  The charge leveled against the Appellant is a very serious charge involving a breach of trust going to the root of the contract.  The Appellant was employed in a very senior position –that of Senior Meter Reader.  The aggravating features of the case clearly outweighed the mitigatory factors that the Appellant had fourteen years of experience and had a sick wife and three children.

In the circumstances it is my finding that the appeal is devoid of merit.  It is therefore dismissed with no order as to costs.

Chinamasa, Mudimu & Dondo  - Appellant’s Legal Practitioners

Garikai M. Churu- Group     - Respondent’s Legal Practitioners