Daniel Mukandara v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/113/13
HELD AT HARARE 21st JANUARY, 2013
CASE NO LC/H/16/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/113/13

HELD AT HARARE 21st JANUARY, 2013	         CASE NO LC/H/16/12

In the matter between:-

DANIEL MUKANDARA						Appellant

And

NATIONAL RAILWAYS OF ZIMBABWE				Respondent

Before Honourable the G Mhuri, Senior President

For Appellant:  Mr W. Magaya (Legal Practitioner)

For Respondent: Miss S. Mkwananzi (Legal Officer)

MHURI G.

Appellant’s grounds of appeal as per his Notice of Appeal are that:-

The Respondent’s General Manager erred on point of law in;

Finding that Appellant was guilty of theft a charge which is not supported by the facts.

The decision to dismiss the Appellant was predetermined.

Appellant guilty when the hearing was held n contravention of the Code of Conduct and was marred by irregularities namely:-

Appellant was never given an opportunity to

listen to the testimony of the witnesses who testified in his absence.

Appellant was never afforded an opportunity to

cross-examine the witnesses.

Appellant was never afforded an opportunity to mitigate after conviction.

Relying on incorrect value for the lost spare wheel which was not new. The cost of the correct and proven.

The punishment imposed a punishment which is unduly harsh especially considering the Appellant’s record of service and the value involved.

The General Manager erred in relying on the text message which is not an admission of guilty and ignored the Appellant’s explanation.

To substantiate these grounds, Appellant submitted that the proceedings of the tribunal aquo were void abinitio as Respondent failed to observe the provisions of its own Code of Conduct and the principles of natural justice. He averred that he was not afforded an opportunity to listen to the evidence against him, he was not afforded an opportunity to cross examine the witnesses that testified against him.

Appellant relied on Clause 15(4) of Respondent’s Code arguing that the provision is peremptory. It reads:-

“At the inquiry ....... if written statements of witnesses in support of the charge are not admitted, the witnesses shall be heard and the accused employee or the fellow employee, in the alternative chosen under the provisions of clause 15 of this Code to assist him, shall be allowed to cross examine such witnesses and address the inquiry at the conclusion of proceedings.”

Appellant also relied on Section 12B (4) of the Labour Act [CAP 28:01] in support of his submission that he was not heard in mitigation. He submitted that this is a critical step in the dispensation of justice. He argued that even if the Code provides for dismissal as a penalty. If his length of service (32 years) had been weighed against the value of the tyre ($637) the tribunal aquo could have imposed a lesser penalty.

On the substantive issues, Appellant submitted that the Disciplinary Committee’s finding of guilty was based on a text message sent by Appellant to Mr Musarurwa. Musarurwa gave evidence in the absence of Appellant, produced the text message which Appellant was never shown only to be called on a later date and asked about it.

Appellant submitted that if at least he had been shown the message and asked to comment on the circumstances under which it was sent, the Disciplinary Committee would have arrived at a different conclusion.

The procedure adopted by the Respondent’s Disciplinary Committee in dealing with this matter leaves a lot to be desired. At page 16 of the record it is indicated that:

M. Muchembere			Chairman

D. Mukandara 			Accused

G. Musarurwa				Witness

T. Chingarande 			Witness

L. Khanukamwe			Witness

A. Murambadare			Employer

B. Pilime 				ZARWU

T. Dindi 				Accused

Chogah					Human Resources

B.D.  Hokonya   			Stenographer

When one goes through the minutes, it is apparent that the proceedings were conducted piece meal. Appellant was interviewed first, questioned by the Chairman, ZARWU representative and employer representative. At page 22 it is indicted that this was the end of the interview for Appellant.

Thereafter Musarurwa was called in as a witness. He narrated the events of the 27th and 28th and the missing spare wheel. He was questioned at length by ZARWU representative. This was in the absence of Appellant. After Musarurwa had been excused Dindi was called in and charges were read to her to which she pleaded not guilty, narrated her defence, was questioned and the interview was concluded. It boggles the mind why this was done.

After Dindi, Chingarande who is indicated as a witness was called in, charges were read to him to which he pleaded not guilty. He narrated his side of the story, was questioned and excused.

Kanhukamwe, also indicated as a witness was called in, the charge was read to him. He was asked to narrate what took place. He gave evidence on what he did. He was questioned at length by the Chairman, ZARWU representative and one question by the employer representative.

After Kanhukamwe, Appellant was recalled and was asked questions by the Chairman on the evidence given by Musarurwa about the text message.

I find that there was an irregularity done by the Hearing Committee in excusing Appellant after he had given his evidence and then proceeding to hear the evidence of Musarurwa and Kanhukamwe in his absence.

This notwithstanding I find that the irregularity is not so grave as to vitiate the proceedings. Appellant did not suffer any prejudice as he was duly represented in these proceedings by ZARWU – Mr B. Pilime. Mr Pilime cross examined Mr Musarurwa on his evidence though not at length and not on the crucial issue of the text message. He also cross examined Kanhukamwe at length and on crucial issues touching on Appellant’s case. The Chairman also recalled Appellant and asked him on the crucial issue of the text message, to which questions the Appellant ably answered.

As Appellant was represented, his representative should have insisted on the presence of Appellant right through the proceedings but he did not. It is not correct that Pilime was not representing Appellant. Page 65 is a summary of the proceedings by Pilime addressed to the Chairman.

It is also not correct that Appellant was not served with the witnesses statements which statements the Hearing Committee relied on. At page 66 of the record is Appellant’s summary addressed to the Chairman wherein he states:-

“Having checked all statements from the witness, nothing is pointing at me that they have seen me with a spare wheel anywhere.”

In view of this, I find that the rules of natural justice as stipulated in the case of CHATAIRA V ZESA 2001(1) ZLR 30 were complied with.

See:

TICHAWANA NYAHUMA

VS

BARCLAYS BANK (PVT) LTD.

SC 67/2005

in which SANDURA J.A. (as he then was) citing TINDALL J.A. in the case of

JOCKEY CLUB of SOUTH AFRICA & OTHERS

VS

FELDMAN 1942 AD 340

had this to say;

“I wish to state that it is not all procedural irregularities which vitiate proceedings.”

HOLMES J.A. also had this to say;

“Now I think it is clear that the Court will not interfere on review with the decision of a quasi judicial tribunal where there has been an irregularity, if satisfied that the complaining party has suffered no prejudice.”

RAJAH & RAJAH (PTY) LTD. AND ORS.

VS.

VENTERSDORP MUNICIPALITY AND ORS.

1961 (4) SA 402 AD at 407H – 408B

I associate myself with the sentiments echoed in the case of ;

AIR ZIMBABWE (PVT) LTD

VS

CHIKU MNENSA AND ANOTHER

SC 89/2004

that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.

He should escape such consequences because he is innocent.

As regards the substantive issues, it is not in dispute that on the 28th January 2010 Appellant collected the spare wheel in question.

“I was given a spare wheel on the 28th January 2010. On the first day I refused then on the 28th that is when I collected the spare wheel” (record page 17 – 1st paragraph and page 63 – 1st line).

It is common cause that on the 29th when Appellant parked his lorry after knocking off duty the spare wheel was missing. This was brought to his attention by the security guard Chingarande. The next morning Appellant made a report to the Police of theft of the spare wheel. This he did without informing Chingarande the security guard.

It was Chingarande’s evidence in his statement of the 29th January 2010 that as they were waiting for Appellant to give them full information of what happened to the spare wheel, Appellant had already gone to Zimbabwe Republic Police Chegutu and reported that the spare wheel could have been stolen by security who was on duty (record page 61).

Appellant only revealed that he had already made a report when he and Chingarande were on their way to the Police to make a report of the missing spare wheel.

Chingarande over and above his written statement  gave viva voce evidence of what transpired. He was cross examined at length by Mr Pilime. Chingarande’s evidence was accepted by the Hearing Committee.

It is also common cause that Appellant sent a text message to Musarurwa about the missing tyre. It was Musarurwa’s evidence that Appellant sent him a text message. He did not read it and Appellant came to Norton where he met him in his office and advised him that if anybody asked him about the wheel he should just say he does not know anything about it.

Musarurwa still had the text message in his phone at the time of the hearing.

It read;

“ Saru itakuti ahuna kuwona tai Mukandara”

“ Saru say you did not see the tyre Mukandara”

This evidence was not challenged at all by Appellant’s representative.

Appellant did not deny that he sent a text message to Musarurwa. He said he could not remember the contents of the message. He did not deny travelling to Norton and saw Musarurwa. His reply to the Chairman’s question was:-

“I do not remember the message I wrote. I think I remember saying to Musarurwa when I visited him that, you must have seen a spare wheel in the lorry which you lifted ...... if you talk about wheel at the bottom of the lorry I think it is all yours we never had a hand-over/take-over of the lorry ......”

In response to a question on what his cell number was, Appellant stated that he had lost the number as it belonged to his son.

Faced with such pieces of evidence some of which was common cause the Chairman found as more probable than not that Appellant knew about the disappearance of the spare wheel. He cannot be faulted for his.

Why would Appellant make a report to the Police first thing in the morning alleging the spare wheel had been stolen by security guard during the night when it was the security guard who had brought it to his attention that night immediately after parking the lorry that there was no spare wheel.

Why did he send a text message to Musarurwa advising him to proffer ignorance of the whereabouts of the spare wheel

Why did he travel to Norton to see Musarurwa and speak about the spare wheel.

When asked about the contents of his message and cell number, he suddenly develops selective amnesia.

All this does not point to an innocent mind in my view. Appellant was correctly found guilty and dismissed.

In terms of Respondent’s Code, theft is a dismissible offence. Where dishonesty is involved, the clean long service of an employee cannot absolve him as theft involves the breach of trust bestowed on an employee by the employer. Theft goes to the root of the contract of employment as such it cannot assist the employee to argue that he has a clean record, the value is so minimal, it was a used tyre etc. In casu the employer exercised its discretion, properly so in my view and imposed a dismissal penalty. This Court cannot interfere with such exercise of discretion.

See :-

MALIMAJI VS CABS

2007 (2) ZLR 77 at page 80

TOYOTA ZIMBABWE VS POSI SC 55/2007

To that end, the appeal cannot be allowed. Accordingly it is ordered that the appeal be and is hereby dismissed in its entirety.

Coghlan, Welsh & Guest – Appellant’s Legal Practitioner