Betty Sibanda v Mineral Development Corporation (Pvt) Ltd t/a Elvington Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/18/2022
HARARE, 18 JANUARY, 2022
AND
JUDGMENT NO. LC/H/18/2022
CASE NO. LC/H/45/20A
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO.LC/H/18/2022

HARARE, 18 JANUARY, 2022	 AND

28 JANUARY,   2022                                          CASE NO. LC/H/45/2OA

BETTY SIBANDA						                         Appellant

MINERAL DEVELOPMENT CORPORATION (PVT) LTD

T/A ELVINGTON GOLD MINE          		                                    Respondent

Before the Honourable G. Musariri, Judge;

For Applicant		Mr I. Mabulala, Attorney

For Respondent		Mr W. Musengwa, Attorney

MUSARIRI, J:

Appellant worked for Respondent as a Security Guard.  She was charged with misconduct (gross incompetence or inefficiency).  A hearing was held.  The disciplinary authority found her guilty and recommended her dismissal.  Appellant appealed.  The Mine Manager dismissed the appeal.  Appellant then appealed to this Court in terms of Section 92 D of the Labour Act Chapter 28:01.  Respondent opposed the appeal.  The grounds of appeal were two-fold as follows,

“1.	The presiding official erred and misdirected himself in upholding the decision of the disciplinary committee in circumstances where there was no evidence at all that the Appellant committed an act of misconduct.

In particular, the presiding official misdirected himself in upholding the finding of guilty where the compliant (sic) himself had exonerated the Appellant.

The presiding official erred in ignoring the fact that the Appellant had been assigned to guard the generator area where there was a generator and cables, and not the old stockpile area where the theft occurred.

2.  The learned presiding official erred and misdirected himself in finding the Appellant in breach of the code of conduct for accepting a bribe, a misconduct for which she was never charged and was never raised in the disciplinary hearing.”

Minutes of the initial disciplinary hearing are filed of record.  The complainant was the only witness called on behalf of the employer.  The following extract from the minutes is relevant.

“14.	Rep Shumba – from your side do you think the accused has a case to answer

15.	No answered the complainant.

16.	Rep Shumba – Ok Lets say that if you were not forced to write the complain form, were you going to raise the complain form.

17.	The complainant answered that I was not going to raise the form because the accused did not do anything wrong.  I only wrote the form because I was instructed to do so.”

The minutes conclude by stating that the Presiding Official “ found the accused in breach and recommended for dismissal.”  It is not clear how the Official found Appellant guilty.  The contents of the minutes of the hearing do not show how he found guilt.  The minutes show that the complainant disowned the charges of misconduct where he stated that the “accused did not do anything wrong.”

The minutes of the appeal hearing are also filed of record.  No new witnesses were called.  The minutes conclude thus,

“28 Presiding Official – Appeal denied.  Accepting bribe is not accepted.  She       was supposed to supervise activities at the generator including the collapsed area.  The collapsed area is not far from the generator area.”

The official introduced a new charge of bribery which was not canvassed at the initial hearing.  In addition he spoke about the “collapsed area” which again was not mentioned in the first hearing.  He boldly stated that the “area is not far from the

generator area.”  No witness spoke to the collapsed area.  So effectively the official introduced his own evidence in determining the matter.  I consider that the official went on a frolic of his own.  He improperly ignored the minutes of the first hearing.  If he had properly considered the minutes he ought to have found that the charge of misconduct was not proved.   The charge was in fact disowned by the complainant.   In the circumstances the decision by the Mine Manager to dismiss Appellant’s appeal was irrational.

Irrationality is a ground warranting interference by an appellate court.  Authority for this principle is the matter of Hama v NRZ 1996 (1) ZLR 664 at p 670C  Korsah JA described irrationality as

“ the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

I therefore conclude that the dismissal of Appellant by Respondent ought to be set aside.  Respondent argued that the relief sought by Appellant was incompetent.  This was on the basis that Appellant prayed for her reinstatement without the option of payment of damages in lieu of reinstatement.  Appellant did file a Notice to amend his prayer at the hearing to include the option of damages.  Respondent was forewarned of the amendment.  Respondent did not show any prejudice it would suffer as a result of the amendment.  If anything it would gain the option of paying damages instead of reinstating Appellant.  On that basis I dismiss the quibble about Appellant’s prayer.

Wherefore it is ordered that:

1.	 The appeal be and is hereby allowed;

2.	The dismissal from employment of Appellant by Respondent is set

aside; and

3(a)	Respondent shall reinstate Appellant without loss of salary and

benefits,

(b)	Alternatively Respondent shall pay Appellant damages in lieu of

of reinstatement in a sum either agreed by the parties or assessed by                        this Court.

G. MUSARIRI

J-U-D-G-E