Canaan Rwizi v Midlands State University

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/MD/36/2013
HELD AT GWERU ON 28 NOVEMBER, 2013                  CASE NO. LC/ MD/44/2012
In the matter between




CANAAN RWIZI                                  –             Appellant
And

MIDLANDS STATE UNIVERSITY              –              Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - N. Mahamba(Legal Practitioner)
For Respondent     - P. Dzimba (Legal Practitioner)


MATANDA-MOYO, L.

      This is an appeal from an arbitrator’s decision dismissing Appellant from

employment on charges of falsifying or changing any document with fraudulent

intent or attempting to do so in contravention of section 11 of Schedule D of

Respondent’s Code. I dismissed the appeal with costs on the date of hearing

and indicated that reasons would follow. These are the reasons.



      The brief facts are that Appellant was employed by the Respondent as

Acting Catering Manager. He was suspended from duty on 28April 2011 on

allegations of fraud, forgery and violating the internal control systems of the

Respondent in violation of the Section 11 of Schedule D to the code. When the

matter could not be heard on time due to postponements by Appellant, he , the

Appellant referred the matter for conciliation in terms of section 101(6) of the
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labour Act (Chapter28:01). Conciliation failed resulting in the matter being

referred for arbitration. The Arbitrator found the Appellant guilty on the main

charge and ordered his dismissal from work.

      Appellant appealed to this court on the following grounds;

   1) That the arbitrator erred in failing to give regard to the fact that the

      disciplinary hearing was delayed.

   2) That the arbitrator erred in ignoring the other two issues which had been

      referred.

   3) That the arbitrator erred in concluding that Appellant was guilty of

      falsifying records.

   4) That the arbitrator should have considered that Respondent had not

      reported matter to the police.



   Appellant prayed that he be reinstated without loss of a salary or benefits

from date of suspension or that the matter be reheard by the Respondent

within 30days.



   An appeal attacks the merits of the case. The alternative remedy prayed for is

only available in review matters.   I shall therefore disregard the prayer in the

alternative.



   From the submissions made before me it was clear that Appellant received a

fair trial. Even during the appeal Appellant’s representative correctly conceded

that he had difficulties in arguing the matter as he was doing so on pressure

from the Appellant. However as an Officer of Court Appellant’s representative

was enjoined to correctly advise his client and abandon the appeal.


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   The appeal in its entirety had no merit. Firstly Appellant complained that he

was suspended on 28 April 2011 and that the initial hearing was only done on 20

September 2011. From a reading of the record it is clear that Appellant also

caused the delay. However he then decided correctly so to refer the matter for

conciliation in terms Of Section 101(6) of the Labour Act. Appellant chose that

remedy and cannot be allowed to waste the court’s time on such frivolous

ground.



   Appellant blamed the arbitrator for not considering that the matter was not

referred to the police.     Again this ground lacks merit.       Appellant was

misconducted for the offence. Reporting the matter to police or not reporting

have no bearing whatsoever on the outcome of the matter. Again this ground is

totally devoid of merit.



   The only issues for determination are whether Appellant was correctly

convicted and whether dismissal was the appropriate penalty in the

circumstances. From the record and submissions made it is clear that evidence

was called from the service providers and those who worked under the

Appellant.   Documents were produced.       Evidence showed that the service

providers dealt with the Appellant. He was identified during the proceedings.

The unaltered receipts were handed over to the Appellant.        The Appellant

altered those receipts and used the altered receipts to acquit the money he had

signed for. From the evidence the conviction of the Appellant cannot be faulted.




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   Appellant was convicted with an offence involving dishonesty. Such conduct

goes to the root of the employment contract and warrants dismissal even for

first offenders. Such penalty was appropriate. The Supreme court recently in

the cases of Innscor Africa (pvt) Limited vs Chimoto SC6/12 and

Mashonaland Turf Club vs George Mtangadura SC5/12 ruled that there is no

basis for an appeal court in interfering with the penalty of dismissal imposed by

the employer upon an employee for an act of misconduct that goes to the root

of the employment contract unless it is shown that there was gross

misdirection. Such cannot be said in this case.



   On the date of hearing I warned Appellant that such an appeal was a clear

abuse of court process and he was lucky that Respondent did not ask for

punitive costs. This was a matter which deserved punitive costs as a way of the

court showing its displeasure on Appellants who insists on futile appeals.

Appellant knew he was correctly dismissed and had no right to pursue an

appeal he himself had no faith in.



   Accordingly the appeal is dismissed with costs.




Mahamba Law Firm– Appellant’s Legal Practitioners

Dzimba Jaravaza and Associates - Respondent’s Legal Practitioners




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