Dennis Dzapasi v Zimbabwe United Passenger Company

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/5/24
HELD AT HARARE 20TH OCTOBER 2023
CASE NO. LC/H/518/23
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/5/24 HELD AT HARARE 20TH OCTOBER 2023	CASE NO. LC/H/518/23 And …..2024

In the matter between

DENNIS DZAPASI	APPELLANT

And

ZIMBABWE UNITED PASSENGER	RESPONDENT COMPANY

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPELLANT : MR H.M. CHIKOMO (LEGAL PRACTITIONER) FOR THE RESPONDENT: MS C. KASIYO ( LEGAL MANAGER)

MAKAMURE J.

The respondent is a transport operating entity duly registered in terms of the laws of Zimbabwe. The appellant was employed by the respondent as a bus conductor. His duties included collecting fares from passengers and for such passengers’ luggage and issuing tickets to the said passengers .

During the course of his duties it came to light that there were discrepancies in the manner he was charging and collecting and recording the fares. The discrepancies caused prejudice to the respondent in the sum of five hundred and forty-four United States Dollars(USD544.00). As a result of those discrepancies, disciplinary proceedings were conducted against him in terms of the Collective Bargaining Agreement : Transport Operating Industry Statutory Instrument 42 of 2022 (S.I. 42/22).He was charged as follows:

Fraud i.e. Violating paragraph 25 of S.I. 42/22 that is “ An employee is guilty of fraud if he/she intentionally makes a representation to a party knowing it to be untrue, or causes actual or potential prejudice to another. “

OR ALTERNATIVELY

Theft / Stealing i.e. Violating paragraph 47 of the S.I. 42/22 that is “ An employee is guilty of theft /stealing if he/she dishonestly takes property belonging to the employer or another employee without the owner’s permission with the intention of permanently depriving the owner of the property.”

At the conclusion of the disciplinary proceedings the appellant was convicted of theft. He was penalized with dismissal. He protested his innocence and noted an appeal with this Court on the following grounds:

‘1.The Chief Executive Officer grossly erred in law and in fact in his finding that the offence outweighed the mitigation factors and considered a penalty of dismissal where there are other sentencing options.

The Chief Executive Officer grossly erred in law and in fact by finding the accused employee guilty of theft when there was no evidence of theft.

The Chief Executive Officer erred in law and in making a finding of fact that the Zupco Company (sic)suffered prejudice when the record is clear that the employer did not suffer any prejudice.

The Chief Executive Officer grossly erred in law and in fact by finding that inconsistent fares were charged when there were no fare tables provided to the accused employee.’

It is trite in this jurisdiction that the question of sentence is the prerogative of the employer and appellate courts will not interfere with the employer’s discretion unless wrong principles of sentencing have been applied. It is therefore necessary to find whether or not the lower tribunal fell into error when it upheld the decision of the disciplinary authority. Thereafter the question of whether or not the appropriate penalty was imposed will be considered.

The facts which appear not to be in dispute are that between the period 07/08/2022 and 09/10/2022 a total of USD544.00 was not accounted for from the appellant’s takings. The amount was not received by the employer. At the same time the appellant during the disciplinary proceedings did not give an explanation of what happened to that amount. He did not dispute that he is the one who used the ticket books in question.

At the commencement of the proceedings he was asked to plead . He tendered the following response: “ We are tendering a plea that he mixed ZWL and USD however this does not clearly show that there was fraud /theft. The complainant can lead evidence.” In other words

there was an admission of wrong doing. It was proved that he altered USD4.00 to $400ZWL. Such altering was clearly not allowed and showed something was not right in the manner that he was conducting his duties.

It was proved that he charged different fares on the same route. His explanation to this was that there were no fare tables. The appellant was an experienced employee who knew his duties. He could therefore not suggest that he charged fares haphazardly because there was no fare table. That alone is proof that he knew that what he was doing was wrong.

The responses that the appellant gave during the course of the disciplinary proceedings were basically admissions. However even if he had not admitted anything , the evidence which was led against him was overwhelming. The required onus , that is ,proof on a balance of probabilities was discharged. In Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt)Ltd SC31/13 the Supreme Court held that the standard of proof required in disciplinary matters was proof on a balance of probabilities.(See also Nyahondo v Hokonya & Others 1997(2) ZLR 457). As for admissions it is trite that once an admission has been made, there is no need for the other party to lead evidence to prove that which has been admitted.DD Transport (Pvt ) Ltd V Abbot 1988(2) ZLR 92 (SC).

In the present matter there was sufficient evidence led against the appellant. There is therefore no merit in the second ground of appeal. The same applies to the third and fourth grounds of appeal. This means that the Chief Executive Officer had no choice but to uphold the lower tribunal’s findings. As for the appropriate penalty I can do no better than refer to the case of INNSCOR Africa (Pvt) Ltd v Letron Chimoto SC 6/2012 where at page 5 of the cyclostyled judgment the Supreme Court stated that :

‘ 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.’

I respectfully associate myself with the above . I find no misdirection on the part of the Chief Executive Officer. There is therefore no need to interfere with the penalty that was imposed.

In view of the foregoing, I find that there is no merit in all the grounds of appeal. The appeal fails.

Accordingly, it is ordered that:

THE APPEAL BE AND IS HEREBY DISMISSED WITH COSTS.

MUTUNGURA AND PARTNERS, APPELLANT’ LEGAL PRACTITIONERS.