Elijah Chamunorwa v Civil Aviation Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/74/16
HELD AT HARARE 29TH SEPTEMBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/74/16

HELD AT HARARE 29TH SEPTEMBER 2015			CASE NO LC/H/431/14

& 19TH FEBRUARY 2016

In the matter between:

ELIJAH CHAMUNORWA					Appellant

And

CIVIL AVIATION AUTHORITY OF ZIMBABWE			Respondent

Before The Honourable L Kudya, Judge

Appellant			In person

For Respondent		L W Ndlovu (Legal Adviser)

KUDYA, J:

This is an appeal and review of the decision of the respondent employer’s appeals committee where it confirmed the appellant employee’s guilty verdict and dismissal penalty.

Facts giving rise to the appeal are that the appellant who was in the respondent’s employment as an ICT technician based at Harare Airport had occasion on 30 January 2014 to pick up a Nokia Asha phone from gate 6 where its  owner one Sandra Chamunorwa a student on attachment with the National Handling Services Department had forgotten it.

Appellant did not surrender the phone immediately upon picking it up but took it to his office where 4 hours later he was asked by his superiors about it.  He admitted picking up the same but maintained that he did not intend to deprive the owner permanently.  He maintained that he had delayed reporting it and handing it over to his superiors due to work commitment.

He was brought before a disciplinary committee on 6 March 2014 where he was found guilty of contravening the respondent Code of Conduct and dismissed from employment.  Aggrieved with the guilty verdict and the dismissal penalty, he appealed to the  internal appeals committee which in turn confirmed his guilty verdict and dismissal penalty.  It is the decision of the appeals committee which drove him to appeal to this court as well as seek a review order from this court.  The appeal and the review thus form the subject matter of this judgment.

The basis of the appeal and the review is a document styled amended appeal and review grounds which document was allowed in default of a response from the respondent employer despite service.

The appeal and review grounds are as follows:

Appellant was  wrongly charged with theft or dishonesty yet there was no evidence to prove that there was intention to deprive the owner permanently of her phone.

Punishment was too harsh taking into account that appellant has not previously been charged with similar offence and nothing showed that mitigation and aggravation facts were considered on the matter.

Appellant was punished twice that is he was reprimanded by the principal Aviation Security Officer yet put through a disciplinary process too. This goes against the principle of law that one should not be punished more than once for the same offence.

Disciplinary committed exhibited bias and malice in handling the appellant’s case.  This is so because the personal opinion of the chief aviation security officer formed the basis of the charge and he also coerced the appellant to re-write the report which was used in the disciplinary proceedings.  In particular he wanted the appellant to include incriminatory information that appellant had switched off the phone after picking it up.  He should not have participated as a witness in the hearing because he was on interested party in the matter.

The matter was thus prejudged by the doctoring of a report and intimidation of the appellant.

Evidence in the matter was obtained by duress and improperly.  It overlooked fact that even the computer footage could be manipulated.  The chief Aviation Security Officer’s credibility to examine the evidence was thus compromised and such improperly obtained evidence could not be relied on in the hearing.

There were gross irregularities in the disciplinary proceedings.   Committee had to consider merits of all the arguments presented by the applicant.  Applicant highlighted that his medical condition was not good enough for him to go through the disciplinary process but that was ignored.  Chief Aviation Security Officer who was an interested party in the matter participated as a witness.  He caused appellant to amend his statement as he had already concluded on the appellant’s guilt.

The minutes of the hearing were inaccurately recorded and appellant was not given a chance to comment or confirm their accuracy.  Vital information like the appellant’s medical condition was left out.  It was worsened by the fact that 2 people took part in the writing of these minutes.

Decision was grossly irregular because it was based on a pre-determined view of the committee members and the highly irregular participation of the Chief Aviation Security Officer.  Decision arrived at was therefore grossly irregular that no reasonable committee applying its mind could arrive at such a decision.

In the result the applicant/appellant prayed that the appeal and the review be

allowed and that he be reinstated to his original position until his matter is handled properly.  He also prayed for reinstatement without loss of salary and benefits for his wrongful dismissal.

In response to the appeal review the respondent just put in a single line as its response and stated that the application was opposed.  No further detail was filed of record except for the documents pertaining to what happened at the workplace vis the hearing  and the oral submissions made by the respondent’s legal officer and the heads of argument.

What was apparent from the heads and the oral submissions was that the respondent was not in agreement with what the appellant was saying.  It maintained that appellant was given a fair trial.  In its view there were no procedural irregularities which the appellant complained about.  Appellant was given adequate and valid notice to attend the hearing.  He was allowed to bring in a representative of his choice.

The Chief Aviation Security Officer’s report that appellant had stolen a phone did not suffice to constitute bias or to be detrimental to a right to a fair trial.  He was merely a witness and not a member of the disciplinary committee so to construe that his presence militated against appellant’s fair trial would be far fetched.  There is no evidence that the Chief Aviation Security Officer uttered the words attributed to him to coerce appellant to admit the case. Besides he was not a police officer he could not threaten appellant with lodgement in any police cells.  Reporting structures were irrelevant to the matter.

What was apparent was that appellant concealed the phone and switched it off which is consistent with desire to permanently deprive the owner.  Absence of dates of addressee in cell phone owner cell phone report does not constitute bias at all.  Equally the recording of minutes by 2 people does not connote such bias.  Besides no part of (code of conduct says such action constitutes bias.  No prejudice flawed from recording of the minutes by 2 people.  Respondent’s code of conduct was registered in October 2013 and brought to appellant’s attention hence he cannot claim ignorance of its provisions in particular those relating to theft.

He was lucky that complainant did not lay criminal charges against him.  The fact that appellant did not sign the minutes does not make them an inaccurate record.  The absence of his supervisor did not detract from his case.  His presence equally would not have added anything to the case.  The hearing was forward appellant was not prejudice in any way.

Appellant was allowed to bring his representative and same was not incorporated as a witness or dismissed from the hearing.  He remained part of the hearing to its conclusion.  Viewing of the video footage on the 2nd day of the proceedings was not precluded by law.  Appellant close to absent self from the viewing maybe so as not to witness what he did or to use as a ploy to delay the hearing.   Chairperson did not act as complainant record would show that complaint and chair were 2 different people. It is figment of appellant’s imagination only.

Appellant admitted switching phone off.  This is as per annexure D filed of record.  There is no evidence of undue influence to write that on his report.  Chief Security Officer was a witness because he is one who investigated the matter and came up with a prima facie case against the appellant.  Chief Security Officer had nothing against appellant, to the contrary it appears it is appellant who has something against him.  There is no evidence that appellant indicated that he was unwell to go through the hearing and that he was bulldozed through the same.  He is recorded as saying that he had no objection to composition of the committee.  If he had he would have raised it then as well as raise his argument that he was unfit to stand the hearing.  In any event, there is nothing before the court to demonstrate that he could not comprehend what was going on in the proceedings.  Such is a desperate attempt to mislead the court and should be dismissed with the contempt that it deserves.  In the result the respondent prayed that the appeal be dismissed with costs.

Tests for appeals against exercise of decision by lower tribunals and for review are all settled.  The court will not attempt to restate these as that serves no meaningful purpose.  The court will just address each of the grounds as set out by the appellant/appellant and conclude as per what is on record whether such is merited or not

Ground 1

What is clear from the facts of the matter is that after picking up the phone appellant did not submit it to the authorities until 4 hours later when he was asked about it and told that he had been seen on video footage picking up same.  The tribunals below concluded that his holding onto the phone for that period and only coming up after being told that he had been seen by video picking it up was consistent with dishonest intent.  Can it be said such reasoning is grossly irregular that it can be said to call upon the appellate court to interfere.

The standard of proof in labour cases is settled.  See ZESA v Dera 1998 (1) ZLR 500 (SC).  Using this test for the facts at hand the court does not find anything outrageous in such a conclusion by the lower tribunal.  Even if the appellant had demonstrated that he was coerced to write that he switched off the phone; the basic detail about the period he kept the phone and the fact that footage saw him pick it up are sufficient to found his breach of the respondent code of conduct.  This ground lacking in merit should therefore fall away.

Ground 2

It is settled law that penalty is in the discretion of the employer.  See  Circle Cement Nyawasha v Circle Cement.  Apart from the fact that the phone was recovered and that appellant had a clean 5 year record with respondent there is nothing to demonstrate that for a case with dishonest connotations the respondents lower tribunal erred as they decided to dismiss.  The penalty meted out in the eyes of respondent fitted the offence and there is no evidence of serious misdirection warranting the appellate court’s interference.  This ground also lacks merit and it should fail.

Ground 3

Appellant was told not to act as he did by his immediate supervisor but at law that did not preclude the employer from preferring charges against him as it did.  The warning by his immediate boss was not given after a full fledged disciplinary process and could not be elevated to be preclude a disciplinary hearing in the matter.  To that end this ground also lacks merit and it should fail.

Ground 4

The test for bias and malice is set out clearly in the case of Musarira v Anglo American Company SC-53-05.  Whilst the appellant contends that the Chief Security Officer opined that the had stolen, the facts of the matter gave credence to that fact.  To that extent whether he was coerced to write that he switched off the phone or not that did not add or detract from the fact that he had behaved contrary to the expectations of the Code of Conduct which governed his operations.  There are therefore no sufficient facts to found the bias and malice allegation.  The allegation being baseless should therefore fail.

Ground 5

As regards the video footage there is nothing on record to show that the footage was tampered with for it to show what appellant did.  All it showed was that phone was picked up by the appellant.  Whilst it is true that electronic gadgets can be tampered with there is no evidence on record to show that the footage in this matter was tampered with as such.  The ground also lacking in merit should fail.

Ground 6

Appellant argues that evidence was ill recorded by two people and that he was forced to go through the disciplinary process despite indicating that he was ill disposed to do so.  Unfortunately the medical evidence which he tendered on record for this appeal does not support his contention.  The dates on the medical reports are dates of a period well after the hearing dates so the appeal court fails to glean the nexus between these dates and the alleged ill disposition to attend the hearing.  Granted, appellant could be medically challenged as he claims but there is nothing of the face of the papers filed of record including what he personally filed which supports his arguments.  Since his argument is not  backed by fact it cannot be sustained.   On this basis this ground must also fail.

Ground 7

As indicated by the respondent there is no evidence that the recording by 2 people was contrary to the Code neither did appellant manage to demonstrate prejudice flowing from that if at all it was contrary to the Code.  The law is clear that prejudice is a critical component where procedural irregularities are alleged.  See Nyahuma v Barclays Bank (Pvt) Ltd 2000 (2) ZLR 445 (S).  Further to that, the fact that appellant was not invited to authenticate the minutes does not detract from their veracity.  The facts of the case on their own without the minutes set out the offence and the court is not persuaded that it has any basis to upset the findings of the respondent’s lower hearing tribunals.

Ground 8

The argument about pre-determination of the Chief Security Officer has been repeatedly dealt with above.  Suffice to say that even if the Chief Security Officer’s opinion was ill placed the occurrence of the events spoke clearly to a breach of the respondent’s Code hence there was nothing amiss about the conclusions arrived at.  The same applies to issues of representation etc.  These did not add or detract from the matter.  This ground is also without merit and it should fail.

IT IS ORDERED THAT

The appeal and review application both being without merit they be and are hereby dismissed.

Each party to bear own costs.