Allied Timbers Zimbabwe (Private) Limited v Francis Makoko

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/395/25
HARARE 30 SEPTEMBER, 2025
CASE NO. LC/H/735/25
In the matter between: -
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE 30 SEPTEMBER, 2025

JUDGMENT NO. LC/H/395/25 CASE NO.	LC/H/735/25

In the matter between: -

ALLIED TIMBERS ZIMBABWE (PRIVATE) LIMITED	APPELLANT

and

FRANCIS MAKOKO	RESPONDENT

Before the Honourable Mzyece Judge

[1] This is an appeal against the arbitral award of the Honourable Arbitrator, Ms Masiline F Chawadya, dated 25 June 2025. The appeal is opposed.

BACKGROUND FACTS

[2] The Respondent was employed by the Appellant for 21 years as the Human Resources Officer at Stapleford Estate. On 22 January 2025, the Respondent was charged for violating the Appellant’s Code of Conduct and Grievance Procedure. The Respondent was charged with the following misconduct; Table 4: Dismissible offences- (xii) Gross incompetence/inefficiency in the performance of duties. The Appellant alleged the Respondent had re-employed one, Shannah Dzunzi, as an inventory clerk at Stapleford Estate from the 15th of October 2024 to the 12th of November 2024, whilst allegedly fully aware that she was involved in fraudulent activities under her first employment with Appellant  as  an  invoicing  clerk  at  one  of  the  Appellant’s  branches  in

Bulawayo. A disciplinary hearing was then conducted where the Respondent was found guilty and was dismissed from employment.

[3] Aggrieved by the disciplinary hearing’s decision, the Respondent appealed to the Internal Appeals Officer, being the Chief Executive Officer (CEO). The Internal Appeals Officer upheld the decision of the disciplinary committee and dismissed the appeal. Respondent then appealed against the decision of the Internal Appeals Officer to the Labour Officer in terms of the proviso to Section 101(5) of the Labour Act [Chapter 28:01]. The Labour Officer proceeded in terms of the provisions of Section 93 of the Labour Act [supra]. After the parties failed to resolve the dispute through conciliation, the Labour Officer issued a certificate of no settlement and the dispute was referred to compulsory arbitration.

[4] The Arbitrator made a determination on papers as agreed by the parties. She upheld the appeal by the Respondent. She ordered that the determination of the Internal Appeals Officer be set aside. She further ordered that the Appellant should reinstate the Respondent without loss of salary and benefits. Alternatively, the Arbitrator ordered that if reinstatement was no longer tenable, the Appellant should pay Respondent damages in the sum that the parties would agree. If they failed to agree, then the amount of damages would be assessed by that tribunal aquo.

[5] The Appellant was aggrieved by the determination of the Arbitrator and thus appealed to the Labour Court.

GROUNDS OF APPEAL

[6] The Appellant raised the following grounds of appeal;

6.1.“The Arbitrator a quo erred and grossly misdirected herself at law when she arrived at the decision that Appellant failed to discharge the burden of proving the guilt of the Respondent during its disciplinary hearing notwithstanding that evidence on the record shows the Appellant’s disciplinary committee properly arrived at a verdict of guilty based on the

evidence presented by the Complainant, witnesses, and the Respondent himself.”

6.2.“Further, the Arbitrator a quo erred and misdirected herself in law by applying an incorrect standard of proof, holding that the Appellant had to “satisfactorily” prove its case, instead of assessing whether the evidence established the Respondent’s guilt on a balance of probabilities.”

6.3.“The Arbitrator a quo erred in upholding the Respondent’s appeal placing undue reliance on the absence of documentary evidence thereby disregarding credible and corroborated viva voce and circumstantial evidence that, on a balance of probabilities, established the Respondent’s misconduct.”

RELIEF SOUGHT

[7]  the Appellant prayed for the following relief:

.“The arbitral award of the arbitrator dated 25 June 2025 be and is hereby set aside.”

.“The award of the Arbitrator a quo is substituted with the following:

“Appellant’s appeal be and is hereby dismissed.”

SUBMISSIONS MADE BY THE PARTIES

[8] The Respondent submitted that he had abandoned the point in limine as such, the parties proceeded to make submissions on the merits.

[9] Counsel for the Appellant submitted that in motivating the appeal, he proposed to address the issues arising in the three grounds of appeal as one. The Appellant’s counsel averred that the Arbitrator misdirected herself and erred at law when she effectively held that the Appellant had failed to prove on a balance of probabilities that the Respondent was guilty of gross incompetence or inefficiency in the performance of duties. The Appellant further argued that in as much as the Respondent persisted during the disciplinary hearing with the position that he was unaware of the fact that Shannah Dzunzi was being

investigated by the police for fraudulent activities and the findings of the Arbitrator that the Appellant had failed to prove that Respondent was aware of the fraudulent history of Shannah when he re-employed her, those facts should not withstand scrutiny of the Labour Court when regard is had to the following factors:

9.1.That the Respondent was the human resources manager in charge of the Bulawayo depot where the ex-employee who was re-employed was working before she voluntarily resigned. That the Respondent did not conduct an exit interview as required by the Appellant’s human resources policy. Further, he said Respondent had utilised targeted recruitment when the Appellant required services of a new person. When Respondent utilised targeted recruitment, he was supposed to get approval from the Chief Executive Officer, but did not get that approval as per requirement of the Appellant’s Human Resources recruitment policy. The Appellant further submitted that the Respondent admitted that he did not draft the acceptance of resignation letter relating to Shannah Dzunzi. Moreover, that the Respondent’s failure to have had prior knowledge of the fraudulent conduct of Shannah at the time of her recruitment demonstrated that he was grossly incompetent such that he was ignorant of what was happening at the two stations which he oversaw. Appellant contended that it was highly unconscionable and inconceivable that the Respondent could not have known that Shannah Dzunzi was facing criminal investigations from the State when he was the responsible person for the depot where Shannah was employed.

[10]Thus, Appellant contended that on consideration of the totality of the evidence adduced in the disciplinary hearing, the Arbitrator misdirected herself in overturning the verdict of the disciplinary authority. The fact that the alleged facts had not broadly captured the issues which came out in the evidence, did not mean that the charge was defective or that the Respondent had been convicted based on facts not alleged.

[11]Appellant submitted that it was settled law that where an issue had not been raised in pleadings, but gets fully canvassed in a trial or hearing, the court will be entitled to adjudicate on it notwithstanding the absence of an amendment to the pleadings. Appellant referred the Court to the cases of Mtuda v Ndudzo 2000 (1) ZLR 710 (H) at 719 and Silonda v Nkomo SC 6/22. Appellant stated that the alleged facts as they had been drafted on the charge sheet might not have broadly captured the issues of gross incompetence alleged against the Respondent, that did not detract from the fact that the evidence adduced cured such defect in casu thus, the adduced evidence established the charge preferred against the Respondent.

[12]Furthermore, the Appellant averred that by allowing part of her decision to turn on procedural irregularities on the issue of facts not properly alleged against the Respondent, the Arbitrator went against the established principle that labour matters are informal proceedings that ought not to be decided based on technicalities. For that proposition the Appellant referred the court to the case of Zimplats (Pvt) Ltd v Godide SC 2/16 at p 5 of the cyclostyled judgment, where Gowora JA(as she then was) expressed the following sentiments;

“The court a quo appeared however, to have justified its interference with the penalty on the basis that the respondent had not been found guilty of gross incompetence or inefficiency but negligence. Clearly, the view it took was technical. The law is settled that labour disputes should not be delayed through the consideration of issues of a technical nature but should be resolved on substantive issues. In my view, it was immaterial whether the respondent had been found guilty of negligence as opposed to gross incompetence or inefficiency. The record shows that the evidence adduced established the charges of misconduct preferred against him.”

[13]Counsel for the Appellant stated that if one is to place emphasis on the lack of precision on the drafting of facts, it is akin to elevating procedural irregularities at the expense of substantive justice. He said the Respondent should escape his conduct because he is innocent not because of a technicality.

[14]As for the penalty of dismissal, Counsel for the Appellant submitted that the employer properly exercised its discretion when it took a serious view of the matter, leading to the conclusion that a verdict of guilty and a penalty of dismissal was warranted in the circumstances he referred to the following cases for that proposition; Toyota v Posi 2008 (1) ZLR 173 (S) at 179 and Circle Cement v Nyawasha S 60/03.

[15] Per contra, Counsel for the Respondent submitted that the law applicable to appeals against the arbitrator’s award is provided under section 98(10) of the Labour Act and is clear that, an appeal against the arbitrator’s determination must be on a question of law. He said it was apparent that the Appellant was appealing against factual findings. Also, that there was no question of law that was arising from the appeal on the basis that the factual findings by the Arbitrator were unreasonable or that the Arbitrator had taken leave of her senses.

[16] He further submitted that the Court could not interfere with factual findings which were not grossly unreasonable. He stated that in both the written submissions and oral submissions, the Appellant did not specifically address any of the grounds of appeal separately, but resorted to what Counsel for the Respondent termed: ‘carpet bombing’. He said that was a strategy to try and run away from the fact that the grounds of appeal as they were could not be sustained. He submitted that there was no fault with the award.

[17] Counsel for the Respondent further averred that the ratio decidendi of the Arbitrator’s finding was that the disciplinary hearing committee and the internal appeals officer erred in finding and confirming the finding that the Respondent was guilty of an offence which the Respondent was not charged of. The Respondent was not charged of failure to follow the recruitment policy. He said, that was what the Respondent was found guilty of. He stated that the offence that Respondent was charged of, was gross incompetence and inefficiency in the performance of duties. The dispute was over the facts that found that particular offence. The facts which found the charge were that the

Respondent had re-employed Shannah Dzunzi- that part is not disputed. The facts continued that, “whilst you were fully aware that she was involved in fraudulent activities while she was employed as an invoicing clerk at Bulawayo branch.” Counsel for the Respondent contended that the totality of the offence hinged on the full knowledge of the fraudulent activities that Shannah Dzunzi was involved in. He said the disciplinary committee was supposed to prove two issues, (i) that the Respondent had re-employed Shannah Dzunzi. (ii) that he was fully aware that she was involved in fraudulent activities and that she had resigned when investigations were instituted against her. It was Counsel for the Respondent’s view that the evidence adduced during the hearing did not show that the Respondent was aware of Shannah Dzunzi’s fraudulent activities. The Respondent’s Counsel referred the Court to the findings of the disciplinary committee on page 24 of the consolidated record. He said none of the findings showed that the evidence presented confirmed that the Respondent knew of Shannah Dzunzi’s fraudulent activities.

[18] Counsel for the Respondent submitted that Appellant did not dispute that no such evidence was laid bare during the disciplinary hearing. He said the disciplinary hearing and the Internal Appeals Officer went on a frolic of their own and veered off the essence of the charge and found the Respondent guilty of failing to adhere to procedures which he said was not part of the charge. Counsel for the Respondent pointed out that on page 6 of the consolidated record, the Respondent’s defence was that he was not aware of the fraudulent activities of Shannah Dzunzi. He said that was what Respondent’s mind and energy was directed to by the facts on the charge sheet. That he was fully aware. Nothing else about not following procedures was said.

[19]Counsel for the Respondent then directed the Court to page 8 up to page 10 of the consolidated record where there was an exchange of words that starts from page 14 of the minutes of the disciplinary hearing. He said the complainant stated his case. A defence was given on page 24. Counsel for the Respondent opinioned that it showed that the parties knew what the Respondent was facing and was supposed to answer to. There was no issue about failure to follow procedures. He stated  that  once the Committee found that  there was no

evidence that the Respondent was aware of Shannah Dzunzi’s fraudulent activities, they should have acquitted him of the charges. Counsel for the Respondent averred that the law is settled that a disciplinary committee cannot substitute its own charge. He said the Arbitrator was aware of that fact. Moreso, the Arbitrator was aware of the case of Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR at 314 in this case the Supreme Court was clear that a charge cannot be substituted.

[20] It was further submitted by Counsel for the Respondent that the code of conduct had two separate charges and the Respondent was charged of gross incompetence or inefficiency in the performance of duties under subsection

(xii) of the code. He added that the offence was clearly distinct and separate from a charge on failure to follow standard operating procedures which is classified under subsection (ii) of the code under which Appellant attempted to apply to find the Respondent guilty.

LEGAL ISSUE FOR DETERMINATION

[21]While there are three grounds of appeal, on the notice of appeal, the Court took note of both the Appellant’s and Respondent’s submissions and was of the view that there was only one issue in contention which was to be determined. The real issue was whether or not the Arbitrator erred in finding that the Appellant’s disciplinary committee and Internal Appeals Officer  erred in finding the Respondent guilty of the misconduct as charged, thereby necessitating this court's interference of that finding.

ANALYSIS OF THE LAW AND ITS APPLICATION TO THE FACTS

Relating to Superior Courts interfering with decisions of lower courts [22]The circumstances under  which an Appellate  Court can interfere with  the

decisions of a lower Court on facts have been articulated in a plethora of cases. The primary factor to consider is whether or not the determination made by the lower Court can be regarded as so unreasonable and outrageous that no other

tribunal,  confronted  with  the  same  facts,  would  have  reached  the  same conclusion.

In the case of ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S), the Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower Court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the Court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.”

Further, in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A, the Court provided further insight on this position and expressed the following points:

“It is not enough that the Appellate Court considers that if it had been in the position of the Primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary Court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

[23]The Court read the reasons for the determination by the Arbitrator as outlined in the arbitral award. On page 143 of the consolidated record, the Arbitrator stated that the bone of contention was whether the Respondent was aware of Shannah Dzunzi’s record of fraudulent activities when he employed her. The Arbitrator also pointed out that the arbitration tribunal was tasked to assess the facts used to reach a finding of guilty. She said that the proceedings on record showed that the information about Shannah Dzunzi’s fraudulent activities was not communicated to the Human Resources Office. Witnesses in the hearing (including loss control) pointed out that the said information was not communicated by the loss control department since it was the one handling the case in conjunction with the Zimbabwe Republic Police. The Arbitrator went on to find that none of the findings of the disciplinary committee spoke of the

Respondent being aware of the fraudulent activities of Dzunzi. In addition, the Arbitrator stated that equally the same, the Internal Appeals Officer did not answer the contentious question as to whether or not the Respondent was aware of Shannah Dzunzi’s fraudulent activities. That fact was the backbone of the charge the Respondent was facing. The Arbitrator then went on to cite the Supreme Court case of Zimasco (Pvt) Ltd v Jamenson Chizema (supra) where it was said that it was not the responsibility of the Labour Court to amend the charge sheet for the parties.

[24]The reasons and findings of the Arbitrator cannot to be said to be grossly unreasonable and so outrageous that they are in defiance of logic. The Court is satisfied that the Arbitrator succinctly pointed out the evidence which was adduced during the hearing and analysed the same in a logical manner to reach her final decision.

[25] The Court also analysed the issue that the Respondent was charged with ‘gross incompetence or inefficiency in the performance of duties’ which is an offence stated in part (xii) of the Appellant’s code of conduct. That offence was distinct and separate from a charge of ‘failure to follow standard operating procedures’ which is on part (ii) of the Code. The extract of the charges from the Appellant’s Code of Conduct appears on page 177 of the consolidated record. The Arbitrator made a factual finding to the effect that throughout the disciplinary hearing proceedings, Respondent was never asked to respond to a charge of not following standard operating procedures. She concluded that the tribunal should not have deviated from the initial terms of reference of the first hearing and base its finding on a different charge because it was unprocedural and improper to do so. She further concluded that it resulted in a miscarriage of justice.

[26] The Court was of the view that there was a reason why the Code of Conduct had the two offences separate. Further, the Court was also persuaded by what was stated in the case of ZIMASCO v J Chizema SC38-2007

“ . . . What the Labour Court was called upon to do, quite properly, was to determine whether, on the basis of such facts,

the offence with which the respondent was charged had been established on a balance of probabilities. The appellant’s contention, in fact, is that the Labour Court should have gone beyond this mandate to rewrite the “charge sheet” for the appellant, and then try the respondent on a charge not preferred against him on the papers. A charge, moreover, to which the respondent would not have had an opportunity to respond”.

[27] Further in the case of Nyarumbu v Sandvik Mining and Construction Zimbabwe (pvt) Ltd SC31/13 it was stated that;

“It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged. The reason for this is obvious, viz. The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of s 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice.”

[28] The Court considered the Supreme Court cases which discussed in depth the issue of finding a person guilty of an offence that was not preferred against him/her and the substitution of charges. Moreover, it is axiomatic that failure to prove the charge preferred against a person results in acquittal. This means that if the employer fails to meet the required standard of proof, the employee is entitled to a not guilty verdict. A conviction without evidence is legally invalid and cannot be sustained. In the present case, the Respondent was charged with a specific charge under the Code of Conduct and was informed of the facts why the employer- Appellant- was of the view that he had been grossly inefficient and incompetent in conducting his duties. The employer said it was because he had re-employed Shannah Dzunzi when he was fully aware

of Shannah Dzunzi’s fraudulent activities. (my own emphasis). However, when evidence was led in trying to prove that Respondent was fully aware of the said fraudulent activities, it proved to the contrary and the witnesses testified that he was not aware. The disciplinary hearing committee then based its findings on a conjecture that had he followed recruitment procedures; it could have been possible for him to come across that information. How it could have been possible: it was never said. Moreover, the Respondent had informed the disciplinary hearing that he had telephoned Shannah Dzunzi and asked her why she had resigned. He said she told him that she wanted to pursue further studies. That information was not controverted. It might also be classified as a form of interview. Having noticed that the facts of the offence under part (xii) of the Code of Conduct were not established, the disciplinary committee just made a sudden turn and accused the Respondent of failing to follow procedures; a different charge altogether under the Code of Conduct. The Court is of the view that this was akin to ‘clutching at straws’ and a ‘fishing expedition’ in order to find the Respondent guilty at all cost.

DISPOSITION

[29] In view of the aforementioned reasons, it is this Court’s view that this is not an appropriate case for a Superior Court to interfere with the factual findings of a lower Court / tribunal. It was not shown that the Arbitrator’s findings were so grossly irregular that they were in defiance of logic and that the tribunal had taken leave of its senses, for the Labour Court to interfere. Moreover, it is not enough that this Appellate Court to consider that if it had been in the position of the Arbitrator, it would have taken a different course. It was because of the above reasons that the Court found that this appeal lacked merits and should be dismissed. In addition, there was nothing to persuade the court from departing from the norm that costs follow the results.

In the result, the Court makes the following Order:

The appeal be and is hereby dismissed.

The Appellant to meet the Respondent’s costs.

MZYECE J …………………………

MAUNGA MAANDA AND ASSOCIATES; APPELLANT’SLEGAL PRACTITIONERS

MATIKA, GWISAI & PARTNERS;	RESPONDENT’S LEGAL PRACTITIONERS