Choosemore Chizembe v Freda Rebecca Gold Mine Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/137/2014
HARARE, 4 MARCH 2014 &
14 MARCH 2014
CASE NO LC/H/416/2012
JUDGMENT NO LC/H/137/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/137/2014

HARARE, 4 MARCH 2014 &			CASE NO LC/H/416/2012

14 MARCH 2014

In the matter between:

CHOOSEMORE CHIZEMBE							APPELLANT

Versus

FREDA REBECCA GOLD MINE LIMITED				RESPONDENT

Before The Honourable Manyangadze J &Muzofa J

The AppellantIn person

For the Respondent		C Kwirira (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of the respondent’s Disciplinary Committee, which found the appellant guilty of misconduct and imposed a penalty of dismissal.

The appellant was convicted of contravening section 4 (a) (ii) of the Collective Bargaining Agreement Mining Industry (Code of Conduct), S I 165 of 1992. Particulars of the misconduct are that he deliberately gave untrue, erroneous, or misleading information relating to weightometer readings. The appellant is alleged to have entered, on his log sheets, readings that did not tally with those on the weightometer, resulting in inflated milled tonnage figures.

The Disciplinary Committee found him guilty of the alleged misconduct, and imposed a penalty of dismissal on 11 April 2012. The internal Appeals Committee confirmed the dismissal on 17 April 2012.

The appellant filed an appeal with this court on 21 June 2012. His grounds of appeal are as follows:

The evidence led on behalf of the respondent is suspect and unsupported by documentary proof in the form of documents written by the appellant himself showing the figures that he is alleged to have falsified. There are sheets that are completed daily by the person on shift, it was critical that such would be produced failure to produce such is fatal.

There was no consideration as to the time the appellant started and finished. The entries of weights he made should have been distinctly separated to ensure whether indeed he had committed the alleged misconduct.

There was no evidence indeed if the appellant had made wrong entries, whether such was a mere mistake, or a deliberate act to mislead. This is buttressed by the fact that no evidence was led as to the condition of the meter reader. At the end of the day if figures of weights were not tallying, it might be attributed to mechanical fault rather than a deliberate act to falsify information.

The penalty metted out at the appellant is severe and ultra vires the provisions of the relevant code. A written warning was called for in the event of a first offence.

The appellant has put in issue both the question of conviction and punishment.

On conviction, a reading of the appellant’s grounds of appeal, grounds one to three, shows that he is essentially alleging that there was no evidence on the basis of which he was found guilty. He avers that there was no evidence of the false readings he made, and also no evidence that he made any such readings with the deliberate intention to mislead.

In this appeal, the court is dealing with the factual findings of the Disciplinary Committee. It is a question of whether, on the facts of the matter, the Disciplinary Committee seriously misdirected itself in finding the appellant guilty of misconduct.

The log sheet readings filed of record for 2 April 2012 show the readings on the weightometer, and those entered on the log sheet, at various intervals within a period of twelve hours. They show total tonnage overstated as 933.

Asked to explain this discrepancy during the hearing, the appellant’s response was that he did this to cover up colleagues’ readings. He was then asked whether they were deliberately making false entries on the log sheet to which he answered yes and asked for forgiveness. The record of the disciplinary proceedings is very clear on this. This perhaps explains its brevity, in that no further enquiry took place after the appellant’s admission.

The relevant portion of the record of disciplinary proceedings, which is in a mixture of Shona and English, reads as follows:

AO	The offence is not that you were taking weightometer readings but that you did not record what you were reading from the weightometer. Weightometeryaitaurazvimweiweuchinyorazvakowega. For example on 2 April 2012 at 0500 hours you recorded 784 050 and a spot check which was done at 0546 hours on 2 April 2012 recorded 783 873.

OFF	Taikavhiranachikwereti.

AO	Chikweretichei?

OFF	Chema tonnes.Matonnesachoaiveekubatsiranekukavhiramunhuakangaaripashiftndisatindatangabasa.Taingobatsirana.

AO	Sakamaitorongamuchinyoramafigureekunyepapama log sheet. Ichokwadi here ichocho?

OFF	Ichokwadishefu.Ndineuromboshefu.

WR	Musatimamutongandinokumbirakutimuzivekutiisiahhaasatiamboparamhosva.

At the hearing of the matter, the appellant said what is recorded is not what he said before the Disciplinary Committee. What the appellant is effectively saying is that the minutes were doctored to support the conviction. This is a bald assertion on his part; it is not in any way supported by evidence.

The respondent, at the hearing submitted that the appellant’s challenge of the authenticity of the minutes of the disciplinary hearing is being raised for the first time. It does not appear in his grounds of appeal. In fact, it is not part of his grounds of appeal. The grounds of appeal were prepared by his erstwhile legal practitioner. They were therefore prepared by a legal professional, who presumably went through the record in order to come up with such grounds. They are completely silent on the issue of the admission.

Upon realising the damning nature of the admission, the appellant has decided to turn around and allege that the minutes were possibly doctored. Significantly, the appellant has not alleged that force, coercion or some other form of undueinfluence was brought to bear upon him to extract the inculpatory utterances.

In my view, there is no basis on which to interfere with the Disciplinary Committee’s verdict. It would be tantamount to this court merely substituting its own findings with those of the trial tribunal. There is no justification for doing so. There is a long line of cases wherein it was held that an appeal court should not interfere with the discretion of a trial court, unless the latter clearly misdirected itself. One of the strongest statements in this regard is found in the case of Innscour Africa (Pvt) Ltd v LetwinChimotoSC-6-12, whereMALABA DCJ stated, at page 2 of the cycostyled judgment:

“A principle has now been firmly established to the effect that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court … The Labour Court merely substituted its own discretion for that of the arbitrator without finding any recognisable misdirection on the part of the arbitrator.”

There is therefore no merit in the appeal against conviction.

On the question of sentence, the remarks made in respect of conviction are equally applicable. The Code of Conduct shows that section 4 offences are in that category of offences warranting dismissal. They are viewed as serious infractions of the Code of Conduct.

The discretion to assess and impose penalty is that of the employer. The court cannot easily interfere with that. This position was made very clear in Z B Financial holdings v Maureen Manyarara SC 3-2012 where it was stated:

“The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by anemployer and that it could not interfere with the decision to dismiss without a finding of misdirection on the part of the employer. The reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.”

The appellant exhibited dishonesty. He made false entries in the log sheets. The company relied on that information in making important decisions in its mining operations.

In upholding the Disciplinary Committee’s penalty of dismissal, the respondent’s Appeals Committee remarked:

“The end result is that more cynade and mill balls were used in response to wrong input.”

The false entries made by the respondent affected the production process. More cynade and mill balls were required. It is obvious the employer took a serious view of the misconduct.

In the circumstances, it cannot be said that the employer misdirected itself by resorting to a penalty of dismissal. The discretion was exercised within the reasonable bounds of what an employer faced with that kind of situation would do. The appeal against both conviction and sentence cannot be upheld on the facts of this matter.

In the result, it is ordered that:

The appeal be and is hereby dismissed in its entirety.

Each party shall bear its own costs.

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MANYANGADZE J

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MUZOFA J,   I agree

Magwaliba&Kwirira, respondent’s legal practitioners