Betty Winji v Surface Wilmar (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/32/25
HARARE, 28 JANUARY, 2025
CASE NO. LC/H/1138/24
BETTY WINJI
APPLICANT
LC/H/2025
LC/H/1138/24
---------




IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/32/25

HARARE, 28 JANUARY, 2025                         		CASE NO. LC/H/1138/24

BETTY WINJI							APPLICANT

Versus

SURFACE WILMAR (PVT) LTD                  			RESPONDENT

Before the Honourable Kudya J;

For the Applicant           	- N. L. Vitorini, Legal Practitioner

For the Respondent         	- M. A. Ruwitah, Legal Practitioner

KUDYA J:

On 28 January 2025 this court handed down the order which read as follows “Application for review being without merit it be and is hereby dismissed with costs on the ordinary scale. The court indicated to the parties that reasons for the order could be availed to them on request. A request for the dame has been made by the applicant. Here are the reasons;-

Background to the matter is that the employee lost her job with the respondent employer following allegations of misconduct at her workplace. She is unhappy with the manner in which the proceedings leading to her dismissal were conducted. She thus filed with this court an application for review seeking to have the said proceedings upset. She prayed that her review application succeeds, that the proceedings leading to her dismissal be set aside and be substituted by an order finding her not guilty. Consequently she prayed that she be reinstated to her job without loss of salary or benefits or that she be paid damages in place of reinstatement if reinstatement is no longer an option. She finally prays that upon the success of her review application she be awarded costs on the higher scale. The respondent employer is opposed to the grant of review citing principally 2 factors that is firstly applicant has not exhausted domestic remedies and secondly that the  review is a disguised appeal which cannot be favored with the relief claimed by the applicant. It prayed in the ultimate that the review application be dismissed with costs on a higher scale.

For completeness of record the review grounds are summarized as follows:-

The guilty verdict was based on receipts which were not discovered or used in the hearing.

The guilty verdict was based on allegations that were never raised in the hearing or before that all purchases had to be declared.

The guilty verdict was based on disputed evidence that the maximum potato price was USD 20. There was no finding of which witness was believed and why.

The guilty verdict was based on allegations not raised vis the issue of stamping of receipts by loss control.

The verdict was based on allegations that were never raised vis the requirement for 3 quotations.

The disciplinary body ignored the unrebutted averment by appellant that she bought the veggies at the best price obtaining then.

The response can be summarized as follows:-

Review application is premature. Applicant has not exhausted domestic remedies.

There is a mix-up of appeal and review grounds. Applicant’s query is that there was no evidence to support the charge. Such is an appeal issue and not review.

Paragraph 4 of the founding affidavit states that reference to respondent refers to conduct by the respondent’s human resources office or the hearing office. Such is vague and embarrassing so should be struck out.

Paragraph 9 of the founding affidavit correctly states respondent discarded one witness statement and 2 receipts as documents to be used in the hearing but that was not a bar to other documents being later used if found to be relevant.

As per paragraph 10 of the founding affidavit indeed a hearing was conducted on 14 October 2024 as bome out by the minutes of the hearing.

Paragraph 11 is correct to state that hearing officer sent letter with further attachment to applicant lawyer after the hearing. This was so because it had been agreed that more receipts would be used to ascertain the trend and content as b… out by letter of 16 April 2024. Invoices produced showed that when applicant got high potato price she would not have the invoices stamped by the loss control officer when the figures were lower she would have those stamped. The inference was that she was hiding the inflated prices.

It is correct that a determination was made finding applicant guilty and dismissing her from employment. Indeed a determination was made after mitigation.

As regards paragraph 13 applicant should exhaust domestic remedies.

In terms of Statutory Instrument 15 of 2006 applicant should not come to labour court on review but use the appeal process.

Findings of fact are not reviewable.

Applicant was not convinced on the inflated price but on the charge.

There is no discovery in disciplinary proceedings.

Receipts co… if were produced.

The right to be heard was observed. Applicant was even represented by a legal practitioner.

In the ultimate both parties prayed as set out at the beginning of this judgment.

Exhaustion of domestic remedies.

It is settled that a party has to exhaust domestic remedies. See case of  (Insert). In the case at hand the respondent states that Statutory Instrument 15 of 2006 provides for the remedy of appeal if the party is unhappy with the outcome of his case. See Section (1) of Statutory Instrument 15 of 2006 whilst it is granted that appellant relief obiters on that section there is no provision which obstructs a party from approaching the court on review if he/it is of the view that there are

procedural irregularities that dogged the matter. The test for review is clear Section 92EE Labor Act. In the case at hand the applicant is of the view that the process that led to her job loss was flawed. It is the reason why she mounted a review application. The court does not find any fault with such approach. It is for the just stated reasons that the point in limine vis domestic remedies was misplaced so it had to fail.

Turning to the merits of the review the court noted the following:-

Discover of documents

It is settled that disciplinary proceedings are not bound by the strict rules of evidence (See Insert). It is equally settled that disciplinary proceedings are conducted by non-legal funds which are not expected to conduct such by adherence to the rigors of the law and proceed as in civil cases or criminal case (See Insert). The argument about non discovery is therefore without foundation it should thus fail.

Verdict based on allegations never raised in the hearing. This attack permeates grounds 2, 4 and 5 so all these shall be disposed of at once. A reading of the issues complained about speaks to the veracity and suffering of the evidence that led to the guilty verdict. These are patently appealable issues incapable of resolution in a review application. All the 3 grounds are without foundation and should fail.

Disputed evidence

This is equally in issue of fact. The parties examines and cross examination should have helped clear the alleged dispute in evidence. There is thus no merit in bringing this up in a review. The ground should also fail.

Unrebutted averment vis best price of veggies obtains.

The record is replete with evidence that the employer was not in agreement with the price which applicant claimed she bought the veggies at hence the charges. There is therefore no basis to upset the proceedings based on this statement. The ground is equally without merit and should fail.

In the ultimate all review grounds being without merit should fail as stated on the court’s order.

Costs

Both parties prayed for high costs but some of them satisfied the test set out on Matambo v Mahembe (Insert). It was clear that applicant genuinely believed it had a good case for review and the employer thought otherwise. That alone does not suffice to call for the punitive cost scale which is preserved for exception costs. The ordinary scale costs should suffice as was awarded by the court. It was therefore ordered as fully… on order LCH 75/25.

Tafirei and Company- Applicant legal practitioners

Coghlan, Welsh and Guest- Respondent legal practitioners