Clever Muchayakanye v Hillcrest Preparatory School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/253/14
HARARE ON 31st JANUARY, 2014
CASE NO. LC/H/573/13
AND 9 MAY, 2014
JUDGMENT NO. LC/H/253/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/253/14

HARARE ON 31st JANUARY, 2014				             CASE NO. LC/H/573/13

AND 9th MAY, 2014

In the matter between

CLEVER MUCHAYAKANYE					–	APPELLANT

And

HILLCREST PREPARATORY SCHOOL			-	RESPONDENT

Before The Honourable E. Muchawa  J.

For Appellant:	C. Maposa (Legal Practitioner)

For Respondent :	Y. Nyambo (Legal Practitioner)

MUCHAWA  J,

This is an appeal against the decision of the National Employment Council (NEC) Welfare and Educational Institutions Appeals Committee which confirmed Appellant’s dismissal verdict.

Appellant was employed by Respondent as an Assistant Cook. On the 7th December 2009 he was charged with the following offenses in terms of Welfare and Educational Institutions Code of Conduct.

Schedule 3

(2) 	- failure to report loss of employer’s property

(8)	- negligent loss of employers’ property

Schedule 4

Wilful disobedience of a lawful order – unsupervised entry into the cold room and pantry.

Negligent loss of employer’s property – eggs

(11) Actual or attempted theft embezzlement – eggs

(12) Deliberately giving untrue and misleading information regarding the theft

Appellant worked under the supervision of a Cook Matron who was the custodian of the keys to the cold room and pantry where eggs were kept. It was the cook matron’s responsibility to order eggs. 10 trays of eggs were delivered every week but only 2 trays were used per week leaving 8 trays unaccounted for. When an investigation was carried out into the disappearance of 8 trays of eggs per week, the cook matron resigned. It was established that Appellant was selling eggs at the institution. He was then charged as outlined above and found guilty as charged and dismissed. Upon appeal the guilty verdict was upheld and dismissal was confirmed.

On appeal before me the grounds are listed as follows;

The Designated Agent grossly erred and misdirected itself on law and the facts, such gross misdirection amounting to error in law;

1.----- 	by declining to uphold the appeal on the basis that the hearing committee was not

properly constituted. The Designated Agent rightfully found that the composition was improper but at the same time declined to set aside the dismissal and conviction of the appellant.

2.----- 	by disregarding the fact that the hearing had been done out of time and the employee

had not been reinstated and resuspended in order to comply with the provisions of the Code of Conduct. The disregard of the Code of Conduct had the effect of setting aside the proceedings which were conducted by the Respondent.

3.----	by upholding the conviction when it was clear that there was no evidence demonstrating the fact that the Appellant had been the one responsible for the disappearance of the eggs in question.

4.----	by ignoring the fact that the Appellant was not the key holder and as such there was no way that he could have access to the cold room -------- his role was limited to assisting the Matron Cook.  The upholding of the conviction was grossly unreasonable and erroneous.

5.----	by disregarding the fact that the essential elements of the offence of failure to obey a lawful order had not been met. Furthermore in the present case there was not even such a violation. This again is grossly unreasonable and thereby gives rise to a question of law.

6. -----	by ignoring the fact of the resignation of the Matron Cook ---- she was the person overally responsible for the stocks of the school and could have explained the position of the eggs.

7.-----	by placing heavy emphasis on circumstantial evidence and ignoring the fact that the statements that were being used by respondent clearly amounted to hearsay evidence and thus there was need for cross examination.

8.----	by ignoring the fact that the Appellant had explain the source of the eggs that he had sold and also that there was no proof to the effect the respondent ever barred the appellant from selling eggs in general. The selling of eggs was purely a means to supplement his income and he did so by buying the eggs somewhere and not taking from the school stocks.

9.----	by upholding a sentence of dismissal despite the fact that the appellant had a clean disciplinary record and the amount involved was trivial, this is not to say that the appellant admits that he stole the eggs as alleged.

Respondent alleges that the Designated Agent was correct in the manner she dealt with the matter and disputes every allegation by Appellant.

I deal with each ground of appeal in turn, below.

Effect of the unprocedural constitution of the Committee

The Respondent took issue with the fact that the Appellant did not object to the composition of the Disciplinary Committee in appearing before it and before the headmaster. It is argued that such an issue should not have been raised for the first time on appeal before the NEC and that by so acting, Appellant waived his right to raise this objection.

I was referred to  the case of Ramani v NSSA SC 38-03 for the assertion that the objections should have been made at the initial hearing and should not be made ex-post-facto.

On the other hand Appellant argued that this is a point of law and it can be raised at any time. I agree that this point can be raised at this point as a point of law. Further the Ramani v NSSA supra case is distinguishable. The judge distinguishes on page 7 that case as one in which the Respondent did all that was necessary to comply with the Code. It was noted that unlike the Mugwebie v Seed Co. Ltd and Anor. 2000 (1) ZLR 93 (S) case wherein Respondent had acted in total disregard of the Code, it was different in the Ramani v NSSA case. This case is one like the Mugwebie v Seed Co. Ltd and Anor supra.

I find that the Designated Agent was right in finding that the Disciplinary Committee was unprocedurally constituted. She was correct in relying on the case on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (SC). Once a finding was made as above the choices were to either;

remit the matter for a hearing de novo in a procedurally correct manner, or

to hear the evidence de novo

She elected to hear the evidence de novo. Appellant argued that be relying on the Disciplinary Committee minutes, the Disciplinary Authority ignored the fact that the Committee was unprocedurally constituted and therefore endorsed an irregularity.

On the other hand, Respondent argued that an appeal court may refer to the previous tribunal’s record to determine the facts but will rule on the evidence and matters of law without giving deference to the tribunal’s finding.

I have perused the Disciplinary Hearing minutes which are about a page long and summarise the conclusions reached without recording what led to such conclusions. It is not clear therefrom which witnesses were called and what they said.

A hearing de novo has been defined to mean being able after setting aside the decision arrived at by the lower tribunal, to deal with the whole matter upon fresh evidence as a court of first instance with each party being afforded the right to give evidence and call witnesses (see Mutukwa v National Dairy Co-operative Ltd 1996 (1) ZLR 348 (SC) at 353 and Tutani v Minister of Labour Manpower Planning and Social Services and Others 1987 (2) ZLR 88 (HC).

Respondent argued that it was not necessary to hold a hearing afresh in the strictest sense and referred me to Feltoe, A Guide to Administrative and Local Government Law in Zimbabwe, 4th Edition where he states that a review court may sometimes not order a re-hearing but will simply substitute its own decision in the matter.

The Designated Agent relied on the record submitted, the notice of appeal and the heads of argument submitted by both parties. Available too for consideration was the evidence given by Appellant, that of Peter the cleaner and an affidavit from the driver of the egg suppliers.

Because of the brevity of the hearing minutes which do not show the evidence led, but just the conclusions reached by the Committee, I find that the Designated Agent cured the effect of taint of the first hearing by relying on the evidence led before him.

I therefore find no merit in the first ground of appeal as the refusal to set aside the dismissal was on the merits.

Appeal was out of time

Appellant argues that the appeal was out of time and thus was grossly prejudicial to him as it was conducted outside the 7 day period prescribed in the Code.

Respondent argues that there was substantial compliance with the Code of Conduct as the delay in concluding the matter was not occasioned by the Respondent. Further that Appellant did not raise any prejudice which he suffered therefrom.

I note that Appellant was on suspension with pay and am convinced that the position in Air Zimbabwe (Pvt) Ltd v Chiku Mensa and Mavis Marweye SC 89/04. This technicality should not be deciding  factor. Rather a person guilty of misconduct should not be allowed to escape punishment on the basis of failure to conduct proceedings properly but because he is innocent.

I therefore do not find any merit in this ground of appeal.

Grounds 4,6, and 8

Respondent submitted that grounds 4,6 and 8 do not raise questions of law and ought to fall on that point alone.

Ground 4 relates to who the key holder was and whether Appellant had access to the cold room. Ground 6 relates to the role of the cook matron in the disappearance of the eggs and the weight placed on her resignation. Ground 8 relates to Appellant’s source of eggs.

I find that Appellant does allege that there was a misdirection on facts which amounts to an error in law in respect of the three grounds. I am inclined to consider these grounds especially as Respondent relies on the same facts in coming up with the cumulative effect in considering the circumstantial evidence.

I propose to deal with grounds 3 to 8 together hereunder.

Grounds 3 to 8

Grounds 3 to 8 address the propriety of the conviction in the light of the evidence led. Appellant argues that there was no evidence led. Appellant argues that there was no evidence demonstrating the fact that he had been the one responsible for the disappearance of the eggs in question, especially in the light of the resignation of the Cook Matron which should be taken to conclusively point to the Cook Matron’s involvement.

On the other hand the Respondent argues that the circumstantial evidence should be considered cumulatively. I was referred to the following facts as proved from the evidence

that appellant would sometimes be given keys to the cold room by the Cook Matron and therefore had unlimited and unsupervised access to the cold room and pantry.

at one time he was given two eggs by the Cook Matron for home consumption

appellant was selling eggs but could not account for their source

appellant failed to report the incident of suspected theft when a report was made to him by Peter the cleaner

the failure by both appellant and the Cook Matron to report the alleged theft to the superiors is indicative of elements of connivance.

I believe in casu what is being questioned is whether the standard of proof on a balance of probabilities was discharged by Respondents. My role is to balance the competing claims (see ZESA V DERA 1998(1) ZLR 500 (SC). How to go about this was clearly spelt out in Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) at page 184 E. In balancing the probabilities I have to select a conclusion which seems to be the more plausible conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.

I have to consider Appellant’s submissions regarding the factual conclusions taken as proved by the Respondent.

Appellant submitted that he was under the direct supervision of the Cook Matron and any access to the cold room or pantry was with the approval of the Cook Matron who kept the keys and would be present or in a few instances, Peter the cleaner would be present. Further Appellant submitted that he had three sources of eggs including the Landos driver. The other two sources were not explored. Appellant alleges that he was off duty when the eggs were discovered in a disused stove. He checked with the Cook Matron on what had happened, passing on Peter’s report. He therefore claims to have made a report to his immediate supervisor. In this regard Appellant questions why he was accused of not having reported the alleged theft and of connivance with the Cook Matron.

The most plausible conclusion in these circumstances is that the Cook Matron was responsible for the missing eggs. The conclusion regarding the connivance between the Appellant and the Cook Matron does not seem to be the more plausible conclusion from among several conceivable ones offered by Appellant. It is unclear to me why Respondent is convinced that the alleged theft of eggs required more than one person to execute it. A lot of emphasis was placed on how close the Appellant was to the Cook Matron. In my opinion this was to be expected of people who worked closely together.

The more plausible conclusion to be reached from the Appellant’s request for two eggs is that the Cook Matron was in real control of stocks and Appellant could not access any eggs without the Cook Matron’s approval (even two eggs).

In the circumstances I find that the Designated Agent erred and misdirected self on law and facts and that such gross misdirection amounted to an error in law. This was in upholding the conviction of the Appellant when there was no evidence demonstrating that Appellant had been the one responsible for the disappearance of the eggs in question. Further I find that the Appellant could not have access to the cold room except with the approval of the key holder, the Cook Matron. I also find that the Cook Matron’s resignation points to her involvement in the disappearance of the eggs.

Use of hearsay evidence

Appellant makes the assertion that the Designated Agent relied on hearsay evidence by accepting the written statements as evidence as these could not be subject to cross examination. Respondent correctly pointed me to the case of Chataira vs ZESA SC 83/2001. I agree that there is no need to lead viva voce evidence always as long as the employee is shown any statements or documentary evidence being produced. He cannot insist that the person who made the statement be called to be cross examined.

Offence of failure to obey a lawful instruction – willful disobedience of a lawful order

It was Appellant’s argument that the essential elements of the offence of willful disobedience of a lawful order had not been met. There was therefore no violation.

Respondent argued that willful disobedience had been proved.

Both parties referred me to the case of Matereke v C.T. Bowring and Associates (Pty) Ltd 1987 (1) ZLR 2006 (SC).

I find that case instructive. It says;

“----------- willful disobedience or willful misconduct, the words in my view connotes a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as likely to undermine the relationship between the employer and employee, going to the very root of the contract of employment.”

In casu Appellant is alleged to have entered the cold room and pantry unsupervised. I believe that Appellant who got access through the immediate supervisor who was the key holder cannot be said to have deliberately and seriously refused to obey.

In the circumstances I find that Appellant was erroneously found guilty of willful disobedience to a lawful order.

Consequently the appeal succeeds. There is no need to consider ground 9 of the grounds of appeal.

Accordingly I order as follows:

Appellant should be reinstated to his former position without loss of salary and benefits from the date of dismissal.

In the event that reinstatement is no longer tenable, the Respondent is ordered to pay damages to be agreed by the parties. In the event of failure to agree, either party can approach this Court for quantification.

Matsikidze & Mucheche – Appellant’s legal practitioners

Henning Lock – Respondent’s legal practitioners