Armison Veterai v ProChem (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/257/14
HARARE ON 19th FEBRUARY, 2014
CASE NO. LC/H/54/13
AND 9 MAY, 2014
JUDGMENT NO. LC/H/257/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/257/14

HARARE ON 19th FEBRUARY, 2014				             CASE NO. LC/H/54/13

AND 9th MAY, 2014

In the matter between

ARMISON VETERAI					–	APPELLANT

And

PROCHEM (PVT) LTD.					-	RESPONDENT

Before The Honourable B.S. Chidziva J.

For Appellant:	Ms P. Makurumure (Legal Practitioner)

For Respondents :	Mr I. Nyadenga  (Legal Practitioner)

CHIDZIVA  J,

This is an appeal against the decision of the Respondent to dismiss Appellant from employment.

The brief background of this matter is that Appellant was employed by the Respondent as a Manufacturer from 2004 to October 2012. The Appellant was suspended from employment on  the 15th of October 2012 on a charge of breaching of Confidence involving company secrets. It was alleged that the Appellant deliberately divulged secrets to someone who was under investigation. It was alleged that Appellant sent a text message to Barbra about Nhamo’s suspension. A hearing was conducted and Appellant was dismissed. He made an internal appeal to the General Manager who also dismissed the appeal. The Appellant has thus brought the appeal before this court.

The grounds of appeal are that;

In limine – the Respondent did not properly record the minutes of proceedings and thus had prejudiced the Appellant in formulating the appeal.

Respondent failed to substantiate the charge of breach of company secrets

Appellant never divulged any company secrets to Barbra as stressed in the hearing.

Barbra was never called to testify to prove  the said allegations.

The Appellant prayed that the Respondent’s decision to dismiss him from employment be reversed and that he be reinstated in his position without loss of pay and benefits.

The Respondent on the other hand prayed that the appeal be dismissed with costs on the following grounds.

Point in limine – the handwritten notes are eligible and they support what was discussed in the hearing.

Appellant was the Chairman of the Workers Committee and he used that position to divulge the confidential information.  He was signatory to the suspension letter

Appellant failed to explain the reason of telling the co-worker

The Respondent considered the mitigatory factors

To start with the minutes of Disciplinary proceedings are handwritten. Some of the words are in abbreviation. Some sentences are incomplete. From the manner the minutes are written it may be difficult to know who was present during the hearing, the person who compiled them and whether they had been authenticated. Whilst the other letters are typed the Respondent has refused to type minutes of proceedings.

The minutes of the proceedings do not show that Barbra who is said to be the recipient of confidential information was called to testify OMERJEE A.J.A. in the case of Astra Industries Ltd vs Peter Chamburuka SC27/12 has this to say on the burden of proof in civil matters;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

The position has been affirmed. In Book vs Davidson 1988 (1) ZLR 365 at page 384 B – F DUMBUTSHENA J. quoted with approval the words of POTGIETER AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E G:

“The general principle governing the determination of the incidence of the onus is the one stated in the  corpus luaris simper necessituprobandiicumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore.”

The Respondent has not produced clear evidence that the Appellant did send Barbra some information about Nhamo’s suspension.

The court is also going to decide on whether that information was confidential or not. In the case of Coco vs AN Clark (Engineers) Ltd 1969 RPC 41 MEGADRY J. explained confidential information as follows:-

“(i)	the information must be confidential in quality and nature.

(ii)	it must be imparted so as to import an obligation of confidence.

(iii)	and there must be an unauthorized use of this information resulting in the detriment of the party communicating it.”

This message was texted on the 10th of October 2012 but Appellant only signed the letter on the 11th of October 2012. This information was going to be known to the whole company when delivered to the owner. This therefore meant that no detriment was going to be suffered by the Respondent and the recipient.

Without the proof of confidentiality of the information and the person who did send the message to Barbra the Respondent’s decision to dismiss Appellant cannot stand.

The Appellant’s appeal therefore succeeds.

Accordingly this court orders as follows:

The appeal succeeds

The Respondent should reinstate the Appellant without loss of salary and benefits from the date of dismissal

If reinstatement is no longer tenable parties are to agree on damages in lieu of reinstatement

Failure to agree on the quantum of damages either party can approach this court for quantification.

Makuku Law Firm – Appellant’s legal practitioners