Francis Madyirapanze v Bindura Nickel Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/245/2023
HARARE 4 JULY 2023
CASE NO LC/H/338/22
31 AUGUST 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 4 JULY 2023

31 AUGUST 2023

JUDGMENT NO LC/H/245/2023 CASE NO LC/H/338/22

FRANCIS MADYIRAPANZE	APPELLANT

BINDURA NICKEL CORPORATION LIMITED	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	- Ms N. Mangoi, Attorney

For Respondent	- Mr W. Musengwa, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were quintuple as follows

“1, The Disciplinary Grievance Committee (DGC) grossly erred at law in upholding the finding of the Disciplinary Committee (DC) by finding the Appellant guilty of over-declaring his advanced metres when in actual fact he was being charged with giving false information including falsifying documents.

The DGC grossly erred at law in upholding the conviction of the Appellant of an offence he was never charged of in main or in alternative. The facts in question and the evidence led in the DC exonerated the Appellant.

The GDC grossly erred factually, a misdirection that amounts to a point of law in upholding that the Appellant declared the alleged metres when in actual fact he did not. It erred in not making a finding that end advances are declared by the Shift foreman on a shift basis. Put differently, it ought to have made a finding that the Appellant is not the one who does the actual check and actual declaration but the shift foreman. The Appellant in fact did charge the culprits.

The DGC grossly erred factually, a misdirection that amounts to a point of law in failing to make a finding that for the period in question survey-never indicated any disparities despite taking regular measurements.

The DGC grossly erred factually, a misdirection that amounts to a point in law in finding the Appellant guilty of the alleged offence when in actual fact the

advances were booked by his Shift foreman. It failed to find that the Shift Foreman actually sign for the declarations.”

These diverse grounds raise basically 2(two) issues which will be dealt with in turn.

Whether Appellant was found guilty of the offence charged:

The charge against appellant was set out in the Complaint Form dated 7th February 2022 thus

“Giving false information including falsifying documents.”

After the disciplinary hearing, the Presiding Official gave his verdict as follows;

“10 Francis is guilty of over-declaring his advanced metres in the period in question by 17.5m. He had everything at his disposal to ensure accurate advances for

for the critical end.”

Appellant sought to argue that the verdict does not speak to falsifying information. Indeed the verdict does not zero in on a forged document. However it focused on given incorrect information. That was the quintessence of the offence charged. The word “false” is defined by the Oxford Advanced Learner’s Dictionary 7th Edition as

“wrong; not correct or true:’

Appellant was found guilty of giving incorrect or false information. Therefore the verdict does speak to the offence charged contrary to Appellant’s arguments.

Whether the evidence proved the charge:

In a written response Appellant concluded that,

“6. I am taking disciplinary action… the Shift Foreman involved for failing to regularise the provisionally booked advances resulting in overstating of the main access progressive metres advanced.”

At the disciplinary hearing appellant responded to case against him thus;

“8. He solely thinks that the variance in the advanced metres is not of his making though he could have done better if someone had assisted in correcting the

measurements.”

In this Court Appellant sought to shift all blame to the Shift Foreman. He relied on the evidence of the Chief Surveyor who stated that

“He further explained that the mining team declares its advanced metres based on expected advances whilst the actual measurement is done by the Surveyors and captured by the Mining Clerks. When the data has been captured it is circulated to the whole Technical Services and Mining teams including the Mine Captains.”

As correctly noted by the Presiding Official it was Appellant’s duty;

“as Mine Captain of the development Section to follow up on the advances booked by the Shift Foreman to ensure their accuracy.”

In his capacity as Mine Captain, appellant was the leader of the mining team at the development section. The buck stopped with him. He cannot shift blame to his subordinates. He was answerable for the figures declared by his team. His belated attempt to discipline the errant” foremen shows that he was accountable for the figures declared.

That his subordinates erred may have served as mitigation with regards to the penalty meted out. He has not appealed against the penalty. Therefore the actions of the subordinates are inconsequential to the verdict. It is concluded that the decisions of the Presiding Official and the Disciplinary Grievance Committee are unimpeachable.

WHEREFORE IT IS ORDERED THAT

The appeal be and is hereby dismissed; and

Each party shall bear its own costs,

J-U-D-G-E