Ganizani Baswell v Arcturus Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/31/16
HELD AT HARARE 22ND OCTOBER 2015
CASE NO
JUDGMENT NO LC/H/31/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/31/16

HELD AT HARARE 22ND OCTOBER 2015			CASE NO LC/H/433/14 (REV)

& 22nd JANUARY 2016

In the matter between:

GANIZANI BASWELL				Applicant/Appellant

And

ARCTURUS MINE				Respondent

Before The Honourable R F Manyangadze, Judge

Applicant/Appellant			In person

For Respondent			Mr T Tandi (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the respondent’s Appeals Committee, which upheld the dismissal of the appellant from employment.  The appellant was dismissed from employment following his conviction on misconduct allegations by the respondent’s Disciplinary Committee.

The appellant was employed by the respondent as a Stores Issuer.  In March 2014, he was charged with misconduct, the charge being theft, in terms PART B (4) (d) of the Collective Bargaining Agreement:  Mining Industry (Code of Conduct) Statutory Instrument 165 of 1992.  It was alleged that he stole 15 litres of petrol by making a deliberate over allocation to the Mine’s omnibus.  He was supposed to issue 30 litres of petrol.  He instead issued an extra 15 litres, which was the subject of the theft allegation.

On 3 April 2014, the Disciplinary Committee found him guilty as charged, and imposed a penalty of dismissal.

On 25 April 2014, the Appeals Committee upheld the appellant’s conviction and penalty.  This then led to the appeal to this Court.

The papers on record show that the appellant filed both an application for review and an appeal.   A perusal of his papers reveals a mix up in the issues relating to the review and the appeal.  Some review issues are in the grounds of appeal, and some appeal issues appear in the grounds for review.  One has to glean from the papers to understand what issue one is dealing with.  This mix up, it seems to me, can be largely attributed to the fact that the appellant/applicant filed his papers as a self-actor.  At the hearing of the matter, the applicant/appellant simply adhered to his papers, without further argument.

On procedural issues, which constitute the review application, the issues that arise can be summarised as follows:

That the applicant was wrongly charged with theft.  He should have been charged with non-compliance with set procedures, in terms of PART B (3) of the Code of Conduct.

That the Appeals Committee chairperson tampered with the minutes of the appeal hearing, making them suit his decision.  In other words, the appeal record was fabricated.

The Appeals Committee acted unprocedurally by accepting new evidence.

That the applicant should have been tried by a criminal court first before being subjected to disciplinary proceedings.

On the issue of the appropriate charge, the applicant contends that his misconduct

consisted in the use of two 30 litre containers, instead of one, to issue fuel.  If the procedure required him to use one container, then all he did was to violate that procedure and such violation should have been his misconduct.  The employer improperly preferred theft charges.

The respondent, on the other hand, contended that the facts are very clear that the applicant stole fuel by a deliberate over allocation.  On the facts presented, the respondent was entitled to prefer a charge of theft.

In my view, if the respondent viewed the facts as disclosing an offence of theft, nothing prevented it from alleging commission of that offence.  It is the employer who sets the standards by which its employees’ performance/behaviour at work is to be judged, and how infringement of such standards should be penalised.  In County Fair Foods (Pvt) Ltd CCMA & Others (1999) 20 ILT 1701 LAC, the court stated:

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its  employees and to determine the situation with which non-compliance will be visited, interference wherewith is only… in the case of unreasonableness and unfairness.”

In my view, where there is prima facie evidence of the commission of a particular offence or offences, on the facts given, it is the employer’s  prerogative as to what charge to prefer.

The applicant averred that the appeal record was tampered with.  It was not a correct reflection of what transpired.

As pointed out by the respondent, this averment lacks specificity.  The applicant does not show in what respects the appeal record was falsified to secure his conviction.  It is a broad and general averment.  The respondent also pointed out that the allegations of concoction or falsification of the record relate to the appeal record.  There is no allegation that the initial record was also tampered with.

This is significant in that the applicant’s conviction and penalty are based on the initial record.  The Appeals Committee upheld the findings of the tribunal a quo.  The only difference that emerged was on the quantity of fuel, 10 litres instead of 15 litres.  The respondent explained that the discrepancy was initially put at 15 litres, but it later turned out to be 10 litres.  That is inconsequential, as far as liability for the alleged theft is  concerned.

Thus, the allegations of doctoring or falsification of the record of disciplinary procedures were unsubstantiated, and cannot be upheld as a ground for review.

Applicant averred that the Appeals Committee unprocedurally accepted new evidence.   From the applicant’s papers, the new evidence was;

“from Kundishona and Fete who alleged that applicant’s parents and one Abudu asked them not to provide adverse statements.”

The applicant does not demonstrate how this “new evidence” prejudiced him.  It was simply to the effect that subsequent to the initial hearing, his parents allegedly tried to prevail upon the respondent’s key witness not to give evidence adverse to him.  They tried to persuade them to retract from their incriminating evidence, which was already on record.  There is nothing to show that the Appeals Committee considered this “new evidence”, or was in any way influenced by it.

The respondent submitted, correctly in my view, that the alleged procedural irregularities did not prejudice the appellant/applicant.  In this regard, reference was made to the cases of Air Zimbabwe (Pvt) Ltd v Chiku Mensa SC 89/04 & Tendayi Mwenya v Standard Chartered Bank SC 80/04.  In these cases it was pointed out that procedural issues should not necessarily override or overshadow substantive findings on the guilt of the employee concerned.

Another issue that emerged from the applicant’s submissions was that the disciplinary hearing should have been preceded by criminal proceedings.  In response to this, the respondent averred, in paragraph 11 of its heads of argument;

“1.1	Another issue warranting comment is that though an employee’s misconduct is also potentially subject to criminal proceedings, the general rule is that disciplinary proceedings are distinct from criminal proceedings.  The fact that an act of misconduct is also a criminal offence does not preclude the employer from instituting a hearing.  See Zesa v Dera 1998 (1) ZLR (S), Marine Centre (Pvt) Ltd v O’brian Chakwizira SC 27/05 &  Financial Holdings v Mafunga SC 45/05.”

In the circumstances, the applicant’s grounds for review are without merit and cannot be upheld.

Turning to the appeal,  what basically comes out of the appellant’s submissions is an attack on the factual findings of the Disciplinary Committee and the Appeals Committee which upheld such findings.  It is an attack on the credibility of the witnesses relied upon to convict the appellant.

The gist or pith of the appellant’s  defence is that the theft allegation is a complete fabrication.  It was actuated by malice and vindictiveness on the part of the respondent, who wanted him out of his organisation.  In this regard, appellant submitted, in paragraph 2.0 of his heads of argument;

“It is the appellant’s submission that the alleged theft is a fabrication by management as they have always been hunting him in a bid to get rid of him…”

The law is very clear on the approach to be adopted, when dealing with the factual findings of a lower tribunal.

There must be gross or manifest misdirection or irregularity to warrant interference with the factual findings.  This has been emphasised in numerous cases, which include Nyahondo v Hokonya & Others 1997 (2) ZLR 475, Borros & Anor v Chimponda 1999 (1) ZLR 58 (S), & Christopher Samson v Windmill (Pvt) Ltd SC 7/15.

This approach was particularly emphasised in Christopher Samson v Windmill, supra were GARWE JA, at p 2 – 3 of the cyclostyled judgment, stated;

“Before this court, the appellant attacks the finding of the court a quo on the basis that the court grossly misdirected itself on the facts and consequently came to the wrong conclusion.  It is clear from the appellants’ grounds of appeal that, essentially, he is attacking the findings of fact made by the court a quo and, prior to that, by the disciplinary committee.

The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.  Barros & Anor v Chimponda 1999 (1) ZLR 58 SC, Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670D.

The reason for this approach is obvious. Faced with the same facts, reasonable people might reach different conclusions without any of them properly being labelled as unreasonable.  Computicket v Marcus N O & Others (1999) 20 ILJ 342 LC, 346.”

In the instant case, the Appeals Committee was clear in its findings when it upheld the Disciplinary Committee’s decision.  These were summarised as:

“It was established that more than 30 litres of petrol was issued to the school minibus.  There was no reason for Ganizani to use two 30 litres poly-cans to issue 30 litres of petrol.  Evidence indicated that he issued 40 litres but booked 30 litres.  Ganizani’s allegations that the security guard on duty fabricated a case against him were immaterial because of the evidence against him by the leading witnesses.  The witness and the mini-bus fuel gauge reading were overwhelming evidence to convict him and the bribe issued by the mini-bus driver.”

The conclusion reached by the Appeals Committee was, in my view, well founded and consistent with the evidence on record.  It cannot be said to be a gross misdirection.  This court finds no basis on which to interfere with it.

Having regard to the foregoing, it is ordered that;

The appeal and review be and are hereby dismissed.

The applicant/appellant shall bear the respondent’s costs.

Kantor & Immerman, respondent’s legal practitioners