Evans Mutevera v Lyons Martindale

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/296/2013
HELD AT HARARE ON 26 MARCH, 2013              CASE NO. LC/ H/639/2010
In the matter between



EVANS MUTEVERA                   –          Appellant
And

LYONS MARTINDALE                       –           Respondent




Before The Honourable L. Kudya, President
For Appellant      - In person
For Respondent     - A.K Maguchu(Legal Practitioner)




KUDYA, L.

      Appellant was dismissed from Respondent’s employment as a data

capture clerk on allegations of contravening the Respondent company code of

conduct. He appealed to the internal appeal structures without success. He has

now appealed to this court against both the guilt verdict and the dismissal

penalty which were confirmed by the Respondent’s internal appeals body.



      Facts giving rise to the misconduct charges were that he falsified the

recording/capturing of invoices which related to the stocks at Chitungwiza

depot by capturing the data on an August 2010 invoice in September 2010.

Further to that, he was said to have abused the company’s SAP system when he

moved stocks in the SAP system thus reflecting a variance which prejudiced the
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Respondent in respect of the Chitungwiza depot stocks. He raised 3 grounds of

appeal namely:-




   1) Misconduct complained of was never committed

   2) Respondent violated his suspension by not paying his September 2010

      salary thus suggesting that his dismissal was premeditated

   3) The alleged misconduct did not arise out of his duties as per his contract

      of employment. The Respondent’s response was that:



   1) The misconduct acts were committed. No internal appeal was lodged to

      contest same hence Appellant cannot seek to challenge the issue at the

      eleventh hour.    In any event the ground in question has no details

      supporting it, hence it is flawed.

   2) Procedural issues are not issues to be raised on appeal. Further to that

      labour matters should not be decided on the basis of technicalities. To

      that extent non payment of his salary post suspension could not bar the

      Respondent from conducting a hearing in his matter and it could not or

      its basis alone render the employer’s decision null and void or voidable.

   3) The misconduct complained of was part of his contract of employment.

      To that end, the Respondent referred to the record of proceedings and

      particularly the appeal decision.



Ground one




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      The law relating to appeals against decisions based on the exercise of

discretion by lower tribunals is set out in the case of AG vs Howman 1988(2)

ZLR 402(SC) where it was stated thus “Thus pinciples justifying interference by an

appellate court with the exercise of an original discretion are firmly entrenched. If

the discretion has been exercised on judicial grounds for sound reason, that is,

without caprice or bias or the application of wrong principles, an appellate court

will not interfere and substitute its own decision. It is not enough that it considers, if

it had been in the position of the lower court, it would have taken a different

course.”



It is clear from the above cited case that the appeal court will therefore not

lightly interfere with the exercise of the discretion of the adjudicating bodies

below it unless it is shown that bias, malice etc exist in the exercise of the same.

Applying this principle to the facts of the instant case, the question which the

court has to answer is whether it has been shown that there was an abuse of

discretion by the bodies which dealt with the case before it. In fact, it has to be

shown that whatever decision was arrived at on the facts does not accord with

sound reasoning.



 A reading of the minutes of the proceedings filed of record in particular; the

appeal minutes giving rise to the instant appeal demonstrate clearly that the

adjudicating body delved into the allegations by inviting submissions from both

parties and weighing the two versions. It then concluded that the explanation

that was given by the Appellant was more probable than that proffered by the

Respondent.




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In fact it could not appreciate why the Appellant acted in the manner he did by

tampering with the figures in question and also not timeously telling his

superiors of the anomaly which he argues he was seeking to address. For that

reason, the tribunals below were satisfied that the Appellant’s conduct on a

balance of probabilities satisfied the elements of the charges which were

leveled against him. The court therefore found it difficult to fault the factual

reasoning of the tribunals below it on the facts and evidence which were

presented then.



Taking into account the fact that, the standard of proof in such cases is proof

on a balance of probabilities, See ZESA vs Dera SC/79/98 interference with

findings in the instant case would be tantamount to this court substituting its

own discretion for that of the lower tribunal for no cogent reason which is

legally undesirable.



 The court also hastens to mention that the Respondent’s response is ill

founded to the extent where it states that Appellant did not appeal internally.

He did appeal, hence his current appeal against those internal appeals.

It is however also accepted that the 1st ground baldly asserts that offence was

not committed without any further submission. This is contrary to the spirit of

pleadings where averments have to be made in full otherwise that renders the

appeal invalid. The court was however prepared to condone that anomaly

given the Appellant’s self acting status hence the court decided to deal with it in

its defective form and as amplified by the written and oral submissions made

by the Appellant thereafter.




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Be that as it may, it is clear from what has just been said above that there is

nothing on the record which demonstrates abuse of discretion in the

assessment of facts and evidence on the Appellant’s case hence it would not be

proper for this court to interfere with the lower tribunal’s decision. The court is

therefore satisfied that the first appeal ground has no merit and should

accordingly fail.



Ground 2

The principles set out in response to this ground by the Respondent are

without doubt. These are that, issues of procedure are not appealable and that

labour cases should not be decided on technicalities. See case of Tichawana

Nyahuma vs Barclays Bank Pvt Limited SC 65/05.



The question in the instant case is, whether the non payment of the salary post

suspension can be said to have been a technicality which went to the root of

the case. It appears from the facts that, Respondent conceded non-payment

on the basis of wanting to recover loss occasioned by the conduct which it

complained of against the Appellant.



It is apparent that, to do such before conviction was misdirection but the

question is the extent of the misdirection. What is it that Appellant lost by such

conduct or what prejudice was suffered by the Appellant? As has already been

pointed out the record is replete with evidence that the Appellant’s guilt would

still have stood notwithstanding the non-payment of the salary. To that extent,

the court is satisfied that the irregularity complained of could not vitiate the

proceedings as it did not go to the root of the case.


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It was a technical error of no major force or effect and it could safely be placed

aside but the guilt would still stand. It is also worth pointing out that this

review ground      was   entertained in these appeal proceedings as a way of

avoiding dealing with the matter on technical grounds and also on the basis

that Appellant as a self actor would not be expected to present his pleadings in

the same accurate fashion as would be expected of legally trained counsels.

However, this ground being without merit should fail.



Ground 3

Appellant says was charged with duties not part of his contract. A reading of his

contract filed of record shows that he was supposed to do duties which he says

was engaged for and any other related duties. In any event he does not dispute

that he had done the duties for over 2 years, so for him to argue that he should

not be liable because his contract did not mention specifically the duties in sync

with the charge is without foundation.



 In any event, as stated correctly by the Respondent, the record has

correspondence where the Appellant sought to have the employer regularize

the position by formalizing the duties which he was eventually charged on after

the one who used to do them had left employment. His argument of not

appreciating what was required of him in the job therefore does not hold any

water. This ground should therefore also fail.



It is clear that of all the grounds raised none of them is with merit. They thus

should all fail as explained above .


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IT IS THEREFORE ORDERED AS FOLLOWS:



       1) That appeal being without merit on all the grounds be and is hereby

           dismissed.

       2) The decision of the Respondent dismissing the appeal is to stand

           accordingly.

       3) No order as to costs.



L. KUDYA -----------------

President Labour Court




Dube,Manikai and Hwacha- Respondent’s Legal Practitioners




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