Christopher Rufaro Mashaire v Lobels Bread (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/211/25 HARARE, 24 JULY, 2024
CASE NO. LC/H/691/21
AND 10 JUNE 2025
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO.LC/H/211/25 HARARE, 24 JULY, 2024	CASE NO. LC/H/691/21

AND 10 JUNE 2025

CHRISTOPHER RUFARO MASHAIRE	APPELLANT

And

LOBELS BREAD (PRIVATE) LIMITED	RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For Appellant- Mr. C. T. Tinarwo (Legal Practitioner) For Respondent – Mr. A. K. Maguchu (Legal practitioner)

CHIVIZHE, J:

On the 24th, July, 2024 this court handed down an order in which the appeal was allowed with costs. The court indicated that the reasons would follow. The following are the reasons. The delay in the finalization of this matter is sincerely regretted.

The matter was placed before me as an appeal against a determination by the Respondent’s Appeals Officer which determination upheld an earlier determination of the Disciplinary Authority finding the Appellant guilty of gross incompetency and inefficiency in the performance of his work and subsequently dismissing him from employment. The determination by the Appeals Officer was handed down on 18th November,2021. The appeal was opposed.

BACKGROUND FACTS

The material background facts to the matter were as follows;

The Appellant was employed by the Respondent, as an Electrical Foreman for more than 17 years. He started working as an Artisan for three years and was later promoted to the position

of an Electrical Foreman. On 9th September, 2021 he was suspended without pay and benefits to enable investigations into allegations of misconduct. Two charges were levelled against him

i.e. breach of section 4(f) of the Labour (National Employment Code of Conduct) Regulations, 2006. i.e. gross incompetency and inefficiency in the performance of his or her work and section 4(g) of the same statutory instrument i.e. habitual and substantial neglect of his or her duty.

The allegations levelled were that on Thursday the 7th of September,2021 Appellant replaced a burnt oven circulation fan motor on Plant 9 without conducting a proper root cause analysis. It was Respondent’s contention that as result of Appellant actions the spare motor got burnt in a short space of time after installation resulting in plant stoppages which led to a loss of over 35,100 loaves.

With regards the second charge it was alleged that the appellant neglected his duty on the same date when the business was running on a generator and his subordinate, Fungi Dhindi advised him that the generator was running at a high temperature of 85 degrees Celsius. The Respondent allegation was that the Appellant had not given the matter sufficient urgency resulting in the generator developing a fault and stopping in the midst of production. Upon investigation by the Plant Manager it was established that the coolant levels were low, this could have however been avoided had the Appellant responded quickly upon receipt of the report by his subordinate. The Respondent had consequently suffered a loss of potential 10,570 loaves of bread. The Respondent further alleged that the Appellant had neglected his duty by failing to ensure availability of a stand by burner for plant 9 until the burner had a failure on the 7th of September,2021 resulting in the prolonged plant stoppages which could have been avoided.

A disciplinary hearing was convened on 24th September, 2021. Following a fully-fledged hearing the Disciplinary Authority found that the Appellant had been grossly inefficient in the execution of his duties and that he neglected to perform preventative maintenance on the Plant 9 circulation fan as expected of him under his job description. The Disciplinary Authority also found that despite the issue of the aged machinery this had nothing to do with the premature

failure of the replacement motor. The Appellant had not conducted a proper root cause analysis as expected after a break down. It was also their finding that Appellant had substantially neglected his duties when he failed to act upon being advised by his subordinate of the overheating resulting in the eventual shut down of the plant. The Appellant’s actions was said to have resulted in the Respondent suffering financial prejudice in the amount of ZWD$5,127,374.00. The Disciplinary Authority dismissed the Appellant claims of victimisation and shortage of staff in his department.

After considering the Appellant mitigating circumstances as against the aggravating circumstances the Disciplinary Authority found the Appellant guilty of breach of section 4(f). He was however found not guilty of breach of section 4(g). A penalty of dismissal from employment was consequently imposed. Aggrieved by the decision of the Disciplinary Authority, the Appellant noted an internal appeal. In his appeal the Appellant argued that the Respondent had failed to prove its case against him. There was no evidence linking him to the offence he was being charged with. The Appellant contended that he had performed preventative maintenance on the Plant 9 circulation fan as expected of him. He also submitted that whilst he had performed his duties on the day with other employees those employees had not also been charged suggesting an element of bias. The Appellant also contended that the penalty of dismissal from employment was excessive in the circumstances. In disposing of the appeal, the Appeal Officer found no merit in the Appellant’s appeal. He consequently upheld the conviction and penalty imposed by the Disciplinary Authority. Aggrieved by the decision of the Appeal Officer, the Appellant noted the appeal on the basis of the following grounds:

.

GROUNDS OF APPEAL

The Appeals Officer erred at law and fact by upholding a finding of guilty in the circumstances where the Respondent had failed to prove its case on a balance of probabilities and there was no evidence linking the Appellant to the offences.

The Appeals Officer erred at law by failing to consider the parity principle. In performing the tasks which were the root of the alleged misconduct, the Appellant was performing the duties with others as a team. None of those who were on duty on this day in question were charged with any misconduct.

The Appeals Officer erred at law and fact by coming up with its decision relying on minutes which were not authentic.

The Appeals Officer erred at law by upholding an order of dismissal of the appellant which is excessive considering the Appellant’s circumstances including but not limited to previous disciplinary record, length of service and personal circumstances.

WHEREFORE, the Appellant prays for the following relief:-

The instant appeal is allowed with costs.

The decision of the Hearing Officer be set aside and substituted with the following order:

The Appeal be and is hereby granted.

The Appellant be and is hereby reinstated to his original position with full pay and benefits including back pay.

ALTERNATIVELY

If reinstatement is no longer tenable the Respondent shall pay damages in lieu of reinstatement.

SUBMISSIONS BY THE PARTIES

The Appellant had raised a point in limine to the effect that the Respondent ought to have filed its notice of opposition within 10 days of receiving the Notice of Appeal as provided in rule 19(2) of the Labour Court Rules, SI 150 of 2017. The Respondent Counsel, having appeared on the date of initial hearing of the matter and shown good cause for the failure to file timeously

the notice of opposition, the court consequently dismissed the point in limine. The court also dismissed the point in limine taken orally on the same date by the Respondent Counsel, pertaining to the propriety of the appeal before the court. The point in limine was dismissed on the basis that the point was improperly taken. The matter was thereafter reset for hearing of arguments on the merits and the court afterwards reserved judgement.

MERITS

It is the general position of the law that this court, sitting as an appellate court, is loathe to interfere with the factual findings made by a lower tribunal unless those findings are so irrational or outrageous in their defense of logic that no reasonable person properly applying his mind would come to the same conclusion.

Whether or not the Appellant was unfairly dismissed

The Appellant argued that he was unfairly dismissed in that the Appeals authority upheld the guilty finding in the absence of proof on a balance of probabilities having been placed before the Disciplinary authority. In oral arguments Appellant’s Legal Counsel emphasized on the Appellant ‘s job description that he was employed as an Electrical Foreman, he however was supposed to supervise several specified groups of employees including electricians, assistants, refrigeration mechanics etc. In the disciplinary hearing he had indicated that he had inadequate staff under him, evidence had been tendered in support of this position. This issue was related to the requirement of efficiency on his part. He was found guilty without the Disciplinary or Appeals Officer addressing the issue as raised by him. The Appellant argument was that one of the main reasons he was found guilty of the charge was the issue of the time the breakdown had taken resulting in the losses incurred. His submission was the number of hours could have been lessened if he had more manpower.

The Appellant also argued that he had previously raised the issue of the aged machinery as way back as 2015. When he was charged in 2021 the machinery still had not been changed the problem of frequent breakdown of equipment still existed at that point. The Appellant

contended that the Respondent ought to have led evidence to link the specific breakdown on the 7th Sept to him personally. Tied in with the argument was the issue of the root cause analysis. Appellant submission was that he did conduct a root cause analysis contrary to the position taken by the complainant. His position was that in view of the factual dispute between them the respondent ought to have called for expert opinion in order to support its position that he was personally responsible for the loss that was suffered as a result of the breakdown. The Appeals Officer was said to have rubber stamped the findings by the Disciplinary Authority without considering the submissions made in his defense before the Disciplinary Authority. On this basis Appellant prayer was for the appeal to be upheld, the determination by the Appeals Officer to be set aside and he be reinstated to his original position without loss of salary and benefits.

In response, the Respondent argued that the first ground was not a proper ground of appeal as it did not specifically indicate what ‘offences’ were being referred to therein. The second issue was the ground was too generalized it was difficult to pinpoint Appellant’s basis of appeal given the charge of gross inefficiency levelled against him, was it that he was not responsible for the work, was it the manner he was alleged to have carried out the work, or was the issue whether the inefficiency was gross or not gross. The Respondent despite these perceived shortcomings in Appellant submissions still proceeded to respond on the merits. It was contended that the Appellant in his capacity was responsible for the repair of the oven circulation fan, whilst he did repair the fan the plant machinery was down for 12 hours causing production loss of 35100 loaves. The Respondent view was that he ought to have initially conducted a root cause analysis before replacing the electric motor to identify the root cause of the breakdown. The failure of the motor would have been avoided through a proper root cause analysis which had not been done by the Appellant.

The Respondent further submitted that the disputed fact as to whether or not Appellant had conducted a root cause analysis had to be determined by the Disciplinary Authority. The complainant according to the Respondent led evidence on the issue stating that soon after the

breakdown he had a conversation with the Appellant which was not heard by anyone. In that conversation, Appellant was said to have admitted that he had not done a root cause analysis. He was said to have admitted to have done a root cause analysis only after the second electric motor failed.

The Respondent position was that faced with the diametrically opposed submissions by the Appellant and the complainant, the Disciplinary Authority chose to accept the version by the complainant. The Respondent contended that the Disciplinary Authority could do so by virtue of section 52 of the Civil Evidence Act. The Disciplinary Authority also had the distinct advantage of having lived through the drama such that this court could not competently seek to alter his findings made on the point. The Respondent referred to authorities including Joseph Mbanda v S SC 184/90; S vs Isalano 1985(1)ZLR 62(SC);Hughes vs Graniteside Holdings (pvt) ltd SC 13-84

The Respondent further contended that this court could only interfere with the findings made only on the basis that the Disciplinary Authority acted on a wrong principle or that such findings defy reason and common sense. The Respondent referred to Barros v Chimponda 1991 ZLR 58 SC. The Respondent finally submitted that this court, in the absence of any evidence led to suggest that the complainant lied, had to find, that the Disciplinary Authority was correct in accepting the complainant’s version over the Appellant’s version. There was thus no merit in the ground of appeal.

The Appellant under the first ground of appeal was attacking the determination by the appeals authority on the ground that the appeals authority simply upheld the determination by the disciplinary authority without examining the nature of the evidence that had been placed before the disciplinary authority to sustain the conviction on the first charge. The Appellant contended that the Respondent failed to discharge the onus on it to prove on a balance of probabilities that he had been grossly inefficient on the 7th of September 2021. He submitted that the circumstances did not point to any short-comings on his part. There was involvement of other members of staff including engineering staff, the purchase, installation, maintenance of the

oven circulation fan motors was done by different employees all working for the respondent. Against this background the Appellant contended that it was unfair for the Respondent to blame him for the circumstances that resulted in the breakdown. It was also common cause that plant 9 had always presented problems prior to the incident on the 7th of September 2021. This issue had been raised before the Disciplinary Committee. The fact that the oven circulation fan got burnt soon after installation was not disputed by the Appellant. The Appellant contended that there were a number of factors that could have caused such damage ranging from improper installation(duty primarily of mechanical engineers), maintenance of the oven fan, faulty fan motor from the overheating of plant 9 resulting from aging machinery, insufficient qualified work force. The Respondent however in the disciplinary hearing chose to zero in on the fact that there was no root cause analysis as the primary reason behind the loss. No evidence however had been led to support the finding made by the Disciplinary Authority. The Appellant contended that the Respondent could have taken the option to call any of its engineers or even external experts to prove that the fan motor had failed as a result of his actions. The Appellant submitted that despite all these factors being placed before the Disciplinary Authority, they were ignored. They were also ignored by the appeals officer as the employer was hellbent on dismissing him. He contended that he was therefore unfairly dismissed in the absence of evidence pointing personally to him. The court was urged to set aside this conviction.

It was apparent from a reading of the record that the Disciplinary Authority as well as the Appeals Officer had failed to consider the submissions as made by the Appellant in regards the plausible possibilities as to what might have caused the damage to the oven circulation fan. There was indeed from the facts submitted the involvement of other personnel i.e electrical as well as mechanical. Because of the technical nature of the fault it required that the Respondent at least lead evidence from an expert to establish the cause of the damage to the oven circulation fan.

The Appeals officer in his determination however pointed out that the Disciplinary authority was correct in convicting Appellant on the basis that he was overally responsible for ensuring

repairs and conducting preventative repairs. This finding however in as much as it addressed the issue of Appellant responsibilities did not address the other factors pertaining to installation, maintenance of the machinery and a possible faulty fan heater which are issues which would have been best handled by an expert opinion.

It was also apparent from a reading of the record that the issue as to whether or not the Appellant did conduct a root cause analysis was hotly contested. This fact alone was however behind Appellants conviction on the charge. It would appear to the court the Disciplinary authority accepted the complainant’s submissions on this point at face value. The Appellant having raised the issue of his procedural right to cross examine that particular witness was denied, it would appear that the Disciplinary Authority in view of the fact that there was a dispute ought to have allowed the Appellant to cross examine the Complainant. This was particularly important especially where the provisions of the National Code of Conduct did allow the Appellant to be granted an opportunity to cross examine. It is also apparent that in order to ensure fairness in proceedings, where there was a dispute of fact as had happened in this case, the Discipinary Authority ought to have granted an opportunity to the employee to cross examine the complainant in-order to test that evidence. Can this right to cross examine be waived as was suggested by Respondent before the appeals officer? I believe not. In my conclusion it is clear that fairness ought to be the hallmark of disciplinary proceedings. Even at the shop floor level, a party ought to be given the opportunity to ask questions and test the evidence. This forms the basis of the right to be heard in that an accused employee is given the opportunity to face his or her adversary and confront them through cross-examination. It also buttresses the concept of a fair hearing. The circumstances of this case did not in the court’s view point to a fair hearing when consideration was given to the fact that the issue as to whether or not the Appellant had conducted a root cause analysis was contested.

The Appellant having also pointed to other plausible reasons for the motor fan developing a fault, those issues would only have been ruled out by him being given an opportunity to cross examine on those points. Whilst it is accepted that it is a position of law that the standard of

proof is on a balance of probabilities, it does not mean the Hearing Authority simply accepts one version over the other, there is need for the parties to cross examine each other so that the issues in dispute can become clearer. This was more compelling in this case as there was no other evidence produced other than the complainants’ word against the Appellants’ word. The Appeals Officer on his part having made reference to this point under paragraph 9 of his determination also overlooked to address this crucial point.

Whether or not the Appeals Officer erred in disregarding the parity principle

In regards the second ground of appeal the Appellant alleged that the Appeals Officer erred at law by failing to consider the parity principle. His submission was that in performing the tasks which were the root of the alleged misconduct on the 7th September,2021 he did not perform the duties alone but with others. They worked as a team. None of those who were also on duty on the day were also charged with misconduct. The Appellant contended that there was selective disciplinary action where there ought to have been disciplining of several people who were involved on the day and where it was not clear why the plant machinery faultered. The Appellant referred to authorities including Jiah and others vs Psc and Minister SC 158/98; Anna Pingani vs Parks and Wildlife Authority LC/H/201/2008.

The Parity Principle as contended by the Respondent refers to the principle that a similar sentence should be imposed where the following exists;

Similar offenders

For similar offences

Committed under similar circumstances

The Respondent has largely relied upon John Grogan Workplace Law 9th Edition Juta 2007 at pages 162 to 165 where the author opines that it is only when all three factors are proven that one can apply the parity principle. It is also important to note that under the National Code of Conduct provision is laid that same offences deserve same penalty. section 7 (2) of SI 15/2006 Labour National Employment Code of Conduct Regulations 2006 in this respect reads as follows;

(2) As far as is possible similar offences committed in similar circumstances should be treated equitably through the award of similar penalties allowing for mitigating and aggravating circumstances.

It was indeed correct as submitted by the Appellant that "parity principle" has no clear founding in the Labour Act [Cap 28:01]. The Labour Act however provides for equity and equal treatment of employees. The "parity principle" is covered under the broad concept of "equity". According to South African courts decision in National Union Of Metalworkers V Henred Fruehauf Trailers 1995 (4) Sa 456 (A) At 463 where it was stated in the majority judgement of the Appellate Division:

"Equity requires that the Courts should have regard to the so-called "parity principle". This has been described as a basic tenet of fairness which requires that like cases should be treated alike. So it has been held by the English Court of Appeal that the word 'equity' as used in the United Kingdom statute dealing with the fairness of dismissals comprehends the concept that employees who behave in much the same way should have meted out to them much the same punishment. The parity principle has been applied in numerous judgments in the Industrial Court and the LAC in which it has been held, for example, that an unjustified selective dismissal constitutes an unfair labour practice. The application of the principle is not limited to labour disputes."

The Respondent had also placed reliance on an authority in Dube v Standard Chartered Bank SC 105 2004 at 8 - 9 where the Supreme court held that it was not an excuse for an employee to evade his charges on the basis that others who did not also perform their duties had not been disciplined. The court had held as follows:

The earned Deputy Chairman relied on the remarks of McNALLY JA in Lancashire Steel (Private) Limited v Elijah Zvidzai Mandevana & Ors SC 29/95 at p 6 of the cyclostyled judgment where he said: 'Arguments may be addressed ad misericordiam as to how unfair it is that the four Respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not at law relevant that others may also have been guilty.' (emphasis added)

The Respondent further relied on the authority in National Foods Limited v Ncube SC 76 2015 where at page 8 it was held that:

"Further, various decisions of this court have emphasised that it is not a defence for one person to say that only he was disciplined when other persons were also involved. Each person is answerable for their conduct."

Having considered the parties’ submissions and authorities relied upon the court was persuaded by the Respondent arguments. The court found this ground of appeal tto be meritless.

Whether the Appeals Officer erred in relying on minutes which were not authentic.

The Appellant having withdrawn this ground on the date of hearing of this matter this ground stands as dismissed.

Whether or not the penalty imposed was excessive

The court having been persuaded by the Appellant’s argument found that the Appellant had been unfairly dismissed. This also mearnt that the ground of appeal based on penalty had to succeed with the result that the penalty of dismissal had to be set aside. These are my reasons for the order as granted by the court.