Clemence Murenzwa v Nanavac Investments Private Limited t/a Choppies

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/287/2020
HARARE, 20 AND 24 JULY 2020
CASE NO. LC/H/287/2020
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IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO. LC/H/287/2020

HARARE, 20 AND 24 JULY 2020                     CASE NO. LC/H/REV/02/2020

AND 27 NOVEMBER 2020

In the matter between:-

CLEMENCE MURENZA                                                    APPLICANT

AND

NANAVAC INVESTMENTS PRIVATE LIMITED 		RESPONDENT

T/A CHOPPIES

Before the Honourable B.T. Chivizhe, J;

For Appellant		Mr V. Moyo (Legal Practitioner)

For Respondent		Mr S. Mpofu (Representative)

CHIVIZHE, J:

[1] This is an application for review of the disciplinary proceedings convened by the Respondent against the Applicant. The applicant was employed by Respondent until he was dismissed from employment with effect from 16th of October, 2019 which was the date of suspension.

[2] The events leading to his dismissal can be summarised as follows;

The Applicant was employed as a Shelf-Packer. On the 12th of October 2019 whilst on duty at Choppies Ruwa the Applicant was allegedly caught red-handed by an undercover security guard drinking a Castle Lite in the warehouse belonging to Respondent. According to Respondent a further six more empty beer bottles which indicated recent consumption of product were also found at the same place. Further Investigations established that Applicant and his colleague, Joe Nyika had entered the warehouse without an escort in clear violation of the established rules at the workplace. CCTV footage had also allegedly captured the Applicant on two occasions firstly when entering the warehouse on his own and heading to the place where alcohol was kept behind the shelf. He was not carrying anything when he entered the warehouse. He stayed behind a shelf for some time and then walked out of the warehouse. He is seen wiping his month with his left hand. On the second occasion the CCTV footage had allegedly captured the Applicant walking into the warehouse pushing a supermarket trolley. He is in the company of Joe Nyika. It is during this time when Applicant is at the place where alcohol is kept and Joe Nyika is on the phone standing close to the entrance that the security guard, one Vincent Tsikwa walked in escorting Albert Nkotepe. Vincent Tsikwa is alleged to have immediately seen the Applicant and confronted him. The Applicant then begged Vincent Tsikwa not to report him and he is allegedly captured on CCTV footage kneeling before Vincent Tsikwa pleading for mercy. Both Applicant and Joe Nyika also attempted to bribe Vincent Tsikwa by placing five dollars in his pocket. Vincent Tsikwa kept the money and then showed it to management. The money was later handed over to the police by Respondent when a police report was made. (The Applicant is again captured wiping his mouth before walking out of the warehouse.)

[3] Against these facts the Respondent charged the Applicant with breach of Group IV, Section 5, Paragraph 2: Dishonesty and Other Related Offences, Unlawful taking of property with the intention of permanently depriving the company of the use of such property.”

The Applicant was arraigned for disciplinary hearing on the 7th of November, 2019. The matter was however postponed by mutual consent following a request by Applicant Legal Counsel, Mr Mapaya who indicated that he would not be available on that date. The matter was thereafter set down for hearing on the 22nd of November, 2019.

[4]   On the date of hearing the Applicant was represented by Mr Mapaya and Mr Moyo who also appeared before this court. Following the taking of a procedural issue by the Applicant counsel as to the authenticity of the Code of Conduct used to level charges the matter was again postponed to Monday 25th of November, 2019.

[5] On the 25th of November, 2019 the disciplinary proceedings proceeded in earnest. Applicant was now being represented by Mr Moyo alone. The Applicant did not pursue the preliminary issue taken in respect of the Code of Conduct. The Applicant pleaded not guilty to the charge. The Respondent then led evidence through the complainant Munashe Majarira and the Security guard, Vincent Tsikwa. The Applicant also led evidence through one witness i.e. Joe Nyika. The Designated Officer after considering the evidence and submissions by parties then forwarded the minutes of proceedings along with his recommendations to the employer as per the provisions of the relevant Code of Conduct. The employer on the 5th of December 2019 then handed down the findings and verdict. Upon an analysis of the evidence/submissions of the parties the employer found Applicant guilty of the charge. A penalty of dismissal from employment was consequently imposed.

[6] The Applicant was not satisfied with the proceedings before the Designated Officer and the employer. He has brought an application for review of the proceedings. The Applicant through his papers is raising essentially five grounds for review which are as follows;

1. The dias inducie of the disciplinary action by the Respondent had expired and therefore the hearing was a nullity in the contemplation of the law.

2. The hearing process was conducted in a grossly irregular manner in that Designated Officer who heard and presided over the matter is not the one who analysed the evidence and passed the verdict.

3. The Officer who passed the verdict had no locus standi.

4. The Applicant’s right to a fair trial was violated in that the Applicant was not afforded an opportunity to mitigate.

5. The decision was grossly irregular in that evidence that was produced did not warrant a guilty verdict. There was not any shortfall of beer recorded in stock on the period in question and stock taking exercise were conducted before and after the alleged incident showed the stocks are in harmony.

The Applicant’s prayer is for the disciplinary proceedings to be set aside as a result.

[7] LABOUR COURT POWERS OF REVIEW

The Labour Court’s powers are provided for in Section 92 EE of the Labour Act [Cap 28:01] as amended. The relevant section provides as follows;

“92 EE Grounds of Review by Labour Court

(1) Subject to this or any other law the grounds on which any proceedings or decisions conducted or made in connection with this Act may be brought on review before the Labour Court  shall be; -

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

[8] The Respondent is opposed to the granting of the application. In its Notice of Response as well as Heads of Arguments the Respondent challenges the Applicant on all five grounds of review. In regards to the first ground for review Respondent submits that it was not responsible for the delay in convening of proceedings, the Applicant had through his legal practitioner sought a postponement as Mr Mapaya had a prior engagement. With regards the ground that the proceedings were conducted out of time as stipulated in the Code the Respondent’s submission is that the delay was occasioned through the Applicant’s representative who sought for a postponement and therefore was unavailable to enable the parties to agree to a new hearing date. It was only after the Designated Officer had sent an email to Mr Mapaya that the parties were then able to set down the matter by mutual agreement. The Respondent submission is there was therefore a tacit agreement to waive the timelines. Respondent’s further submission is in any event, the Applicant has not been able to establish any prejudice suffered if at all he was prejudiced through the delay in the convening of proceedings. On the issue of CCTV footage, stock loss being insufficient evidence to sustain the charge the Respondent’s submission is the ground ought to have been more appropriately raised in an appeal. The ground should therefore be dismissed as improperly taken in the review proceedings. On the ground of lack of jurisdiction on the part of Mr Mbeure Respondent submits that on the basis of Code provisions in Section 5.2, 6.1, 6.3 Mr Mbeure indeed had jurisdiction to finalize the matter.

In regards the last ground as to whether Applicant was granted an opportunity to mitigate after his conviction on the charge, Respondent’s submission is as self-evident from the record the Applicant was indeed granted an opportunity to mitigate before Mr Mbeure on 5 December, 2019. The Respondent final submission is even if there is merit in the submission the Applicant has been unable to establish that he was prejudiced by the irregularity. The ground clearly stands to be dismissed on that basis. The Respondent has placed reliance on Nyahuma vs Barclays Bank (Private) Limited 2005 (2) ZLR 445 (S) for its proposition.

[9] APPLICATION FOR INTRODUCTION OF ADDITIONAL EVIDENCE.

On the initial date of the hearing the Applicant through his legal representative made two oral applications, firstly, for condonation for late filing of heads of argument and secondly, for the introduction of additional/further evidence in the form of two affidavits attested to by Mr Leonard Madzanga, the Designated Officer who heard the matter and Mr Joe Nyika a witness in the same matter. After considering the submissions and the content of the record of proceedings the court granted both applications. In granting the condonation application the court was influenced by the fact that the period of delay was minimal and the explanation tendered for the delay was a plausible explanation. The court also allowed for the leading of further evidence through the affidavit of Mr Leonard Madzanga, Designated Officer. The court considered it in the interest of justice for his evidence to form part of the record as it was hoped the evidence would elaborate on the proceedings that actually took place before the Designated Officers in view of the conflicting versions between the parties as to what actually transpired during the disciplinary hearing. The Applicant was also challenging the record of proceedings before the court as being unauthentic.

[10] HEARING ON THE MERITS.

The matter resumed hearing on the 24th of July, 2020. The Applicant had at this stage filed his Heads of Arguments and an Opposing Affidavit from Mr Leonard Madzanga, the Designated Officer who had actually heard the matter but was now retired. Mr Moyo after noting the placement of both documents before the court rose to take a point in limine. The point was that the record of disciplinary proceedings as filed by Respondent was a patently false document. This according to him had been highlighted through the Affidavit of Mr Leonard Madzanga, the Designated Officer. He further submitted that the Respondent was therefore approaching the court with dirty hands by presenting a false record of proceedings before the court. Reference was made to the decision in Martin C. Nhapata vs Christopher & Maideyi Musew SC 38/16.

[11] Mr Mpofu, for Respondent, in response denied the allegation that the record was a false document. The record of proceedings was according to Respondent a correct reflection of the events that took place on the 25th of November, 2019. Mr Mpofu also made an oral application to tender in further evidence two affidavits attested to by two people who were present in the hearing. The first was Mr Munashe Majarira, who was the complainant in the disciplinary hearing. The second was Ms Paidamoyo Masakadza who was the minute taker during the hearing. The two in their affidavits were attesting to the correctness of the minutes as contained in the record of proceedings. Ms Masakadza also attested to the fact that Applicant had been offered the record of proceedings to verify the contents and had refused. Mr Mpofu also applied to tender in evidence two further documents that would tend to counter and prove that the purported affidavit by Mr Leonard Madzanga was in itself a doctored document. This was said to be evident from the signature on the affidavit which was completely different from Mr Leonard Madzanga’s normal signature. The Respondent staff having dealt with Mr Leonard Madzanga for many years, were familiar with his signature (the Respondent Representative tendered in evidence previous signed documents by Mr Madzanga in proof). Mr Mpofu further submitted that there were also spelling/grammatical mistakes, patent errors in the document which were not consistent with Mr Madzonga’s workmanship as known to the Respondent. Mr Moyo, for Applicant objected to the introduction of further evidence by Respondent through the affidavits of the two individuals and the documentary evidence.

[12] In the court’s ruling on the issue of the unauthentic record of proceedings. It is a trite position at law that where a party challenges the authenticity of a document the onus is upon the party so challenging to prove the allegations made. This position was captured in Circle Trading vs Mahachi SC 4/07 where the court found that the principle that he who alleges must prove was a basic concept of law. See also Smit Investments et al vs Sheriff & Other SC 33/2018. In this case apart from Applicant counsel’s bald averment that the record was not authentic there was no other evidence placed before the court to substantiate the alleged unauthenticity of the record of proceedings. The Applicant did not refer to specific issues that were either omitted or added in the minutes. The Applicant only emphasized on the fact that no CCTV footage was played contrary to the minutes. This point shall however be addressed below.

[13] The Applicant through counsel also objected to the introduction of any further evidence from the Respondent. The reasons tendered were that the affidavits were not relevant, their admission would result in conflicting versions by the parties, the evidence was biased as the deponents are still employed by the Respondent e.t.c. The court in determining this issue notes that the Applicant was as a party granted leave to introduce further evidence in these proceedings. The Labour Court is a court of law and equity. The court must also pay due regard to the requirement not only of the law but of fairness to both sides. The court having granted leave to the Applicant was duty bound to also grant leave to the Respondent to present any further evidence in support of its position that the record was an authentic reflection of the record of proceedings before the Designated Officer. The court now faced with conflicting versions as to whether the record is authentic it necessarily means that the court has to draw its own inference after an assessment of the credibility of the evidence as tendered by each party.

The court is satisfied that on the basis of evidence as presented by the parties the inference has to be drawn in favour of the Respondent. The evidence tendered by the Respondent is more probable than that of Applicant. The evidence relied upon by Applicant on the other hand in the form of the Affidavit purportedly attested to by Mr Leonard Mudzanga is not convincing. In arriving at this conclusion the court took the occasion to contrast and compare the signature on other documents previously signed by Mr Leonard Madzanga already forming part of the record such as the letter dated 22 October, 2019 (Annexure B to Applicant papers) and the signature on the purported affidavit. It was also apparent to the court that Mr Leonard Madzanga appeared to be making contrary, inconsistent submissions in his affidavit. The affidavit also carried numerous errors such that the document appeared to be a draft. He referred to himself as ‘Applicant’ and at other times ‘Designated Officer’. He also referred to ‘complainant’ as defendant. His affidavit appeared to have been drawn purely to rebut Respondents evidence that CCTV footage was played at the hearing. He categorically stated that no CCTV footage was viewed in the hearing. He however at the same time stated that in any event the CCTV footage would not assist much as it does not show anyone drinking beer. That statement on its own showed that indeed the CCTV footage was viewed in the hearing. How else would Mr Madzanga have known the fact if he had not seen the CCTV footage? It is also hard to imagine a person with the calibre of a Designated Officer would after leaving employment turn around and seek to impugn the very same proceedings to which he was previously involved as suggested in the Affidavit. For these reasons the court rejects the affidavit purportedly sworn to by Mr Leonard Madzanga as an unauthentic document. The court accepts the Respondent’s version of the events and the evidence tendered.

[15] It is also apparent that in any event the present application clearly stands to be dismissed on the basis of lack of merit. I shall address the individual review grounds. In relation to the first ground the record of proceedings clearly shows that the matter was postponed at the instance of Applicant’s representative. The new date was to be agreed upon by the Designated Agent and Mr G Mapaya. The Designated Officer even sent an email as a reminder on 11 November 2019 to Mr G Mapaya. The email forms part of the record. The date of hearing was only set on 22 November 2019 by mutual agreement of the parties. On that date Applicant requested a postponement in order to check on authenticity of the Code of Conduct. The matter was eventually heard on 25th November 2019. It is apparent on the basis of the factual circumstances that any delay in the matter was occasioned through tacit agreement between the parties. The Applicant in any event has not indicated any prejudice suffered as a result of not having matter concluded within the stipulated time frame under the Code. It is after all a trite position at law that where a party seeks to have proceedings set aside on the basis of procedural irregularity the party must establish the issue of prejudice. See Nyahuma vs Barclays Bank (Private) Limited 2005 (2) ZLR 445 (S). I would consequently dismiss the first ground on that basis.

[16] The second and third grounds for review are equally unmerited. The Applicant submitted that the disciplinary proceedings were conducted in a grossly irregular manner in that the Designated Officer who heard the matter was not the one who analyzed the evidence and passed verdict. Applicant further submits that the Officer who passed the verdict had no locus standi. There is clearly a misunderstanding by the Applicant of the term ‘locus standi’? The meaning of ‘locus standi’ was discussed in Zimbabwe Assemblies of God Africa (ZAOGA) V Kasikai Mashonganyika SC 43/18 where the court stated as follows;

“It is pertinent to note from the outset that the appellant improperly uses the term ‘locus standi’ in relation to the labour consultant’s representation of a party before an arbitrator. The concept of locus standi was succinctly explained in the case of Zimbabwe Allied Bank Limited v Dengu and Anor SC 52/16 as follows;

“The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he or she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject-matter of the cause of action.”

What the Applicant is clearly referring to in casu is a lack of jurisdiction on the part of the employer’s representative to pass a verdict in the matter which was essentially heard before the Designated Officer.

It is also apparent from Applicant submissions that the provisions of the relevant Code of Conduct are not familiar to him and his counsel. Section 5.2 of the relevant Code of Conduct provides as follows;

“If the appropriate penalty is dismissal, the Designated Officer may suspend the employee with or without pay and shall submit all the evidence, in whatever form, assembled by him together with the summary referred to in paragraph 4.6 to the employer for his decision.”

It is clear that where the Designated Officer formulates the view that Dismissal Penalty is appropriate then he has to submit the summary of his investigations, the record of proceedings and all evidence gathered to the employer who will then impose a penalty after assessing all the factual circumstances/arguments. Section 6.1 and 6.3 of the Code of Conduct thereafter grants the employer the power to analyze the evidence and pass the verdict. Section 6.1 reads as follows;

“On receipt of the evidence and report referred to in Paragraph 5.2 or 5.3, the employer shall examine such evidence and report in detail and may take such further evidence in whatever form he considers appropriate, having due respect to the principles of natural justice and ,in particular, shall afford the employee the opportunity of appearing before him.”

Section 6.3 on its part reads as follows;

“Where the employer is satisfied that the employee is guilty of an offence, he may impose the appropriate penalty in relation to that offense as set out in Part IV and V of the Code. Where the employer decides to dismiss, he shall advise the employee in writing indicating the date of termination of employment and of the employee’s right to appeal.”

In this particular case the matter was referred to a Mr Nhamo Mbeure who is the Area Manager. He clearly had jurisdiction therefore to analyze the evidence and to issue the determination.

The next ground for review is that the Applicant was not granted an opportunity to mitigate. The ground is clearly without merit. The record of proceedings indicates that when the Applicant appeared before Mr Mbeure on 5 December, 2019 the following conversation took place;

“Mr. Mbeure   - … Do you have anything to say before I decide the penalty?

Clemence       - I ask you to have pity on me. I am the bread winner in my family      and if I lose this job, my family will suffer.

Mr Mbeure         - is that all?

Clemence           - I am asking for your mercy.

Mr Mbeure       - The Company is losing a lot of money through actions such as yours. You should be protecting the company’s stock, not taking it. Because of your actions, the company no longer has any trust in you. This is a serious offence and I regret to inform you that you have been dismissed from the employment of Choppies Zimbabwe.”

As self-evident from the above exchange the Applicant was indeed granted an opportunity to mitigate. The Applicant has sought to suggest that at that meeting he was only advised of the penalty. The Applicant once again makes a bald averment in the absence of any evidence in support of his position. The court has to dismiss the point as unsubstantiated.

[17] The last ground for review is that the decision to convict was grossly irregular in the absence of evidence to warrant conviction on the charge. The Applicant has specifically challenged the decision on the basis that there was no shortfall of beer as no stock take was taken to prove the loss of beer cans. Although the last ground is couched as a review ground it is clearly a ground of appeal. The Applicant is alleging a misdirection on the part of the decision maker in that the decision handed down was contrary to the evidence presented in particular that there was no evidence led by the employer to prove shortfall in beer stocks as recorded by the employer at the material time.

[18] Assuming I am wrong however in reaching this conclusion that the ground is a ground for appeal rather than a review ground it is also very clear that the ground is also without merit. It is indeed correct as submitted by Applicant that at the disciplinary hearing the employer was unable to establish that there was beer missing at the branch as there had been a system crash. That evidence was however produced when Applicant appeared on the 5th of December, 2019 before the employer. The court has already dismissed as unsubstantiated Applicant claim that on that date he was only handed the determination and nothing else. The record actually shows that he was advised of a negative stock variance of nine (9) units. He did not challenge this. He had proceeded thereafter to present his mitigation.

It is also important to underline that there was in any event other evidence led by the Respondent to prove the charge. There was evidence by Tsikwa that he had found Applicant drinking beer and confronted him, the CCTV footage which captured him going into the warehouse without an escort on two occasions, and when coming out he was captured wiping his mouth as he walked from the area were alcohol was ordinarily kept, there was evidence that several empty bottles were recovered from the place where he was found drinking beer, the CCTV footage showing him and his friend kneeling on the floor begging the security guard, the footage of his friend taking money from the leather jacket and putting in the security guards pocket to bribe him. It is clear from the record that whereas his counsel had initially objected to view CCTV footage he had later conceded to viewing it via the phone. The issue of the bad blood between him and the witness was properly dismissed as a ruse by the employer.

The Applicant having failed to establish any irregularities in the disciplinary proceedings convened against him the present application clearly ought to be dismissed for lack of merit.

It is so dismissed with costs.

Mapaya & Partners, appellant’s legal practitioners