Doves Holdings (Pvt) Ltd v Calisto Kereke

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/47/16
HELD AT HARARE 20TH JANUARY 2016
CASE NO
JUDGMENT NO LC/H/47/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/47/16

HELD AT HARARE 20TH JANUARY 2016			CASE NO LC/H/812/15

& 5TH FEBRUARY 2016

DOVES HOLDINGS (PVT) LTD					Appellant

CALISTO KEREKE						Respondent

Before The Honourable G Musariri, Judge

For Appellant			Mr B Vito, Company Secretary

For Respondent		Ms U Goremusandu, Unionist

MUSARIRI, J:

On 4 August 2015 at Harare, Arbitrator B Mudiwa issued on arbitration award.  He ordered appellant to reinstate respondent or pay him damages in lieu of reinstatement.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

The grounds of appeal complained that,

“1.	The Honourable Arbitrator grossly misdirected himself on the facts and evidence in circumstances amounting to a misdirection of law including but not limited to the following

That the appellant assigned the respondent drivers to drive him about;

That respondent took no action for the period ranging from December 2012 to January 2015 when infact the offence only came to light when a driver’s licence verification exercise was carried out in 2014 wherein the respondent misrepresented that his driver’s licence was at his rural home.

That the respondent erred in allocating a vehicle to an unlicensed driver.

2.	The Honourable Arbitrator erred at law in finding that the failure to provide particulars of the specific days when the offence was committed absolved the respondent from liability and dismissal without such evidence constituted an unfair dismissal;

3.	The Honourable Arbitrator erred at law in finding that the totality of the evidence presented by appellant at the respondent’s disciplinary hearing did not constitute sufficient evidence to prove the offence charged, in other words, the appellant failed to discharge the evidential burden of proof required.

4.	The Honourable Arbitrator erred at law in finding that the offence charged had not been proven in the circumstances.”

In a nutshell,l appellant’s case was that the arbitrator grossly misdirect himself in assessing the evidence by failing to find that respondent drove a company car without having a driver’s licence.  Upon perusal of the evidence, particularly the minutes of the disciplinary hearing, I am inclined to agree with appellant.  Here is why.

The Transport Manager, Joseph Masango, was examined to the following effect,

“HO 		Was he (respondent) the one driving the vehicle?

Masango	At first he was driven by Mr Phiri then Mr Dondo and later on he was driving it alone,”

See also,

“Rep		For how long did you see him drive the vehicle?

Masango	I don’t have the actual period of time but I saw him driving the vehicle several times.”

That was direct evidence of the commission of the offence. When challenged to

produce his driver’s licence respondent claimed same was difficult to access at his rural home.  This came through the evidence of Mrs Musakanya thus,

“When I spoke to him (C Kereke) he explained to me that he had left the driver’s licence  at home in the rural areas.”

In other words respondent misrepresented that he had the licence when in fact he did not. Why would he do that if he was not driving a company car?  The most likely reason was that he was in fact driving the company car so he had to pretend he had a licence.

The findings by the arbitrator that the employer failed to prove its case flies in the face of the evidence.  It is in fact a perverse finding which cannot stand scrutiny.  I am persuaded that it was a gross misdirection.  Such misdirection amounts to an error on law.  Therefore the resultant award which exonerated respondent cannot be sustained.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The arbitration award issued by Arbitrator B Mudiwa dated 4 August 2015

is set aside; and

The dismissal from employment of respondent by appellant is upheld.

G MUSARIRI

J U D G E