Binduko Edward v Managing Director CMED (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/189/2014
HARARE, 18 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/189/2014

HARARE, 18 FEBRUARY 2014	    		  	    CASE NO. LC/H/588/13

& 28 MARCH 2014

In the matter between:-

BINDUKO EDWARD						Appellant

And

MANAGING DIRECTOR CMED (PVT) LTD			Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	In person

For Respondent		-	Mr. T.K. Hove (Legal Practitioner)

MUCHAWA J:

This is an appeal against the decision of the Appeals Authority of respondent which confirmed a guilty verdict and dismissal in respect of Appellant.

Appellant was employed by respondent as a handyman stationed at Chikurubi Prison.  It is alleged that on the 10th of May 2013, appellant, was searched upon knocking off work, as per routine.  During the process, his bag was found to contain Mitsubishi Colt vehicle parts being a pressure plate, a clutch plate and a hub.

Appellant was then charged of theft/fraud including attempted theft/fraud of motor vehicle spares in terms of Section 18.3 subparagraph 12 of Respondent’s Code of Conduct.  He was found guilty and dismissed from work.  This was confirmed by the appeals authority and is now the subject of this appeal.

The grounds of appeal are stated as follows:

The disciplinary panel erred in dismissing appellant in the absence of evidence that he stole the motor vehicle spares.

The disciplinary panel erred in dismissing appellant after he was even acquitted by the Magistrate Court. CMED board of hearing was conducted after the Magistrate Court had already made a judgment.

The disciplinary panel misdirected itself in dismissing appellant yet no one testified seeing appellant steal the spare parts.

CMED board of hearing erred in refusing the evidences from appellants (sic) witnesses who in actual fact were present when the incident occurred.

CMED Board of Hearing erred in not considering appellant’s long term service in the company.

The appeal is opposed.

In my opinion appellant is questioning the standard of proof used in the disciplinary hearing to find him guilty in his grounds 1 to 4 above.  I deal with these first.

The Standard of Proof

Appellant who did not have legal representation is in fact saying he does not think there was enough evidence led to establish that he had committed the offence.  Further he believes that the fact that he was acquitted in the criminal matter should work in his favour.

As pointed out by respondent, the standard of proof required in a criminal matter is totally different from that in a civil matter.  The case of ZESA v Dera 1998 (1) ZLR 500 (SC) sets this out.  It was held therein that in a civil case the standard of proof is never anything other than proof on a balance of probabilities.  The reason for the difference in onus   between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties.  The primary concern is to do justice to each party and the test for that is to balance their competing claims.  In a criminal matter one has to prove beyond reasonable doubt so as to do justice to the individual.

In casu the disciplinary authorities had to balance interests so that respondent’s right not to be forced to employ a thief is balanced with appellant’s right not to be dismissed unjustly.

Appellant questions how this balancing happened as there were no eye witnesses to the theft.  There are several conclusions that could be reached from the available set of facts.  The first is that appellant stole the vehicle parts, put them in his bag, confessed and is now denying this with the help of the various witnesses who have only testified to certain aspects and refused to answer to others.  The second is as advanced by respondent, that someone entrapped appellant and put the vehicle parts in his bag.

The approach to take was spelt out in Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) at p184E – 185F.  In balancing probabilities, the Court selects a conclusion which seems to be the more plausible or credible conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.

In casu the conclusion selected by the disciplinary authority and the appeals authority is the more plausible one as appellant has not advanced any reason why anyone would want to entrap him.  He admits the parts were found in his bag and at least two witnesses confirm his confession.  It was not necessary to have eye witnesses to the theft.

Further I wish to point out that the acquittal by the court dealing with the criminal matter does not help appellant as a higher standard of proof is required there.

In his ground 4 of appeal, appellant questions how the evidence from his witnesses was treated by the hearing authority.  Let me hasten to add that the tribunal would use the same approach outlined in Ebrahim v Pittman N.O. supra to deal with all of the evidence before it.

I therefore find that there is no merit in grounds of Appeal 1 to 4.  Consequently I find that appellant was correctly found guilty as charged.

Ground 5 – Length of Service Not Considered in Mitigation.

Appellant had served respondent for sixteen years and feels this should have been considered in metting out the penalty.

It was argued that the employer exercises discretion in imposing a penalty and cannot condone the act of theft even by long serving employees.

I am guided by the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha S-60-03 at p 5.

“once the employer had taken a serious view of the act of misconduct committed by the employees to the extent that it considered it to be a repudiation of the contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration will not arise.”

There is no basis on which the exercise of discretion in terms of the penalty can be interfered with therefore.

Respondent submitted they would not claim costs against a self actor.

In the circumstances there is no merit in the appeal and I order as follows:

“The appeal being without merit in its entirety is dismissed.

There is no order as to costs.”

T K Hove & Partners, Respondent’s legal practitioners