Gibson Nyarugwe v ZIMRA

IN THE LABOUR COURT OF ZIMBABWE                     JUDGMENT NO. LC/H/28/2013
HELD AT HARARE ON 10 SEPTEMBER, 2012                  CASE NO. LC/ H/641/2011
In the matter between



GIBSON NYARUGWE                                 –          Appellant
And

ZIMRA                                       –        Respondent


Before The Honourable L. Kudya, President
For Appellant      -Mr R.T Maganga (Legal Practitioner)
For Respondent     - Mr D Chinawa (Legal Practitioner)




KUDYA, L.


      This is an appeal by the Appellant challenging his dismissal by the

Respondent which dismissal was confirmed by the Respondent’s appeals board.



      The basic facts giving rise to this appeal are as follows: Appellant was

charged with willfully abusing the Respondent’s assets or alternatively

conducting himself in a manner inconsistent with the conditions of his

employment. In particular it was alleged that the Appellant abused the e-mail

facility which ZIMRA, the Respondent had provided him with for business use.

Contrary to expectation, he is said to have abused this e-mail facility by sending

out to his friends and relatives pornographic material.
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        Following a routine check by the IT manager it was discovered that

Appellant had so abused the facility. In the result Appellant was charged as

indicated above. The Disciplinary Hearing Committee found him guilty of the

acts complained of and consequently dismissed him from employment.



        Aggrieved by the dismissal, the Appellant appealed to the Internal

Appeals Committee in terms of the Respondent’s Code of Conduct. His appeal

was unsuccessful and that is what led him to lodge the appeal in the instant

case.



The grounds of appeal which he relies on are as follows:

1. That Appeals Committee erred in not finding that the Disciplinary hearing

    was held out of time.

2. That Appeals Committee erred in confirming Appellant’s conviction when

    the material was not produced before the Appeals Committee.

3. That Appeals Committee erred in upholding Appellant’s conviction in      the

absence of confirmation of receipt by the recipients of the pornographic

material.

4. That the Appeals Committee erred in failing to note that as PST files can be

compromised, it was unsafe to convict in this matter

5. That the Appeals Committee erred in dismissing Appellant’s submission that it

was improper for the Respondent to charge him with two alternative charges

under the same category D offences and

6 That the Appeals Committee failed to lead evidence linking the Appellant to

the commission of the offence.




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      It is also pertinent to outline the grounds of appeal which were placed

before the Appeals Committee so that this court can be in a position to decide

whether indeed there was any misdirection on the Appeals Committee’s part

which warrants interference by this court. The grounds before the appeals

committee were as follows:

1. There was no evidence to prove the offences; in particular the exhibits were

not produced before the Committee to show that the offending material was

emailed to third parties as alleged.

2. It was irregular to find the Appellant guilty of both charges from the same

category more particular it was improper to charge the Appellant with

alternative charges from the same category of charges.

3. It was unsafe to convict in the face of evidence that PST files could be

compromised

4. Appellant had not been involved in the investigations of the case hence it was

not safe to convict him in such circumstances more so when the offending

material was now coming from compact discs and not the server



      On the other hand, the Respondent maintained that there was no

misdirection at all on the part of the Appeals Committee which warranted this

courts’ interference with its decision to confirm the dismissal.



      As regards the first ground of appeal this court is persuaded by the

argument advanced by the Respondent that, such a ground is bad at law as it

was never raised before the Appeals Committee hence can not be raised at this

stage. It is pertinent to observe the comments by Gwaunza A JA in the case of




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Tsvangirai and others vs Registrar General 2002 (2) ZLR 653                       where she

stated this as regard raising grounds of appeal not raised in the court a quo


             “to now call upon this court as the Appellant does, to consider this appeal on the
             basis of information and arguments not placed before, and therefore not considered
             by the court a quo is both unprocedural and improper . That ground must, therefore,
             fail.”



      Even though the main facts in the Tsvangirai case (supra) were distinct

from the facts in the instant case, the issue of raising appellate grounds not

previously raised was on all fours with what happened in the instant case. A

reading of the grounds of appeal placed before the Appeals Committee in the

instant case shows that, the argument about the hearing having been done

outside the prescribed time limits was never raised before the Appeals

Committee. In the result the Appeals Committee can not be faulted for not

having ruled on a ground which was never placed before it during the appeal

hearing.



      In any event ,even if this court were to accept that the hearing was done

out of time that again would not be a good ground for appeal as it deals with

procedure and is effectively a ground for review .The first ground of appeal

therefore fails since it is ill founded for the reasons already advanced above.



      Turning now to the second ground, it is clear from the documents filed of

record that at some point just after the commencement of the hearing the

Appellant and his counsel had the opportunity to view the offending material in

question. Further to that, it is also clear that, before the Committee was also a


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certificate from the Censorship board classifying such material as being

pornographic and offensive. To then have expected the Committee to insist on

also watching the said offensive material as suggested by the appellant would

not have served any meaningful purpose. At the time of the hearing it was clear

to parties from both sides as to what subject was in issue hence the court is not

convinced that there was any misdirection on the part of the Committee or the

Appeals board in not insisting on watching the offensive material. This ground

of appeal also accordingly fails.



      The third ground is almost on all fours with the second ground which has

just been disposed of. In essence the Appellant’s argument is that it was

imperative that confirmation of receipt of the e-mails complained of should

have been solicited from the recipients so that it became clear that the appellant

had erred as alleged. It should be noted however that the appellant did not

dispute that all the quoted recipients of the material in question were either his

relations or his friends. It would be highly unlikely that even any suggestion of

tampering with his machine would have seen the coincidental dispatch of such

material to people who are all acquainted with the Appellant. The court is

therefore satisfied that it was not peremptory for the recipients of the mails to

confirm orally or in writing, their receipt of the same. The message center

endorsement was in the court‘s view sufficient to found the allegations that

were leveled against the Appellant .This ground also accordingly fails.



      Very little turns on the suggestion that the e-mails could have been

tampered with more particularly the suggestion that the IT person could have

been working together with Respondent Management to have such material


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planted and sent out as alleged, as a way of sidelining the Appellant form

upcoming promotional posts. Such a suggestion has no evidential backing and

the court is not persuaded by it thus this ground also fails.



         The argument about corruption of files and planting of offensive material

were not persuasive to the court if viewed from the background that the

Appellant conceded that all the recipients of the material were either his friends

or relations. It thus would not have been coincidental that the alleged planter of

the offensive material would also have guessed and sent it to Appellant’s close

relations and friends.



         As regards the argument about citing alternative charges from the same

category no authority was cited which to shows the impropriety of such a course

and its attendant consequences. It is not clear that that where such has

happened it goes to the root of the case and thus vitiates all the proceedings. In

actual fact the issue of competent verdict which the Appellant sought to rely on

heavily has more practical application in the criminal arena than in the civil

arena hence the court is not persuaded that the fact that alternative charges

were preferred from the same category vitiated the dismissal proceedings.



         Further to that it should be observed that even if this ground had merit it

would still have been improperly before the court as it is a ground for review

not a ground of appeal and thus cannot succeed on appeal .This ground also

fails.




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       The final ground is that the Appeals Committee failed to lead evidence

linking the Appellant with the offence. The court does not appreciate what

further evidence it is which the Appellate Committee should have called for

outside what was placed before it. The court’s considered view is that both the

Appeals Committee and the Disciplinary Committee applied their minds well to

the facts which were placed before them        and correctly concluded that the

infraction complained of was so gross that it attracted the dismissal penalty .



       This court will not labour to repeat the authorities cited by the

Respondent which show that where the employer takes a serious view of the

infraction complained of dismissal is appropriate. The court is therefore

satisfied that the dismissal penalty was not out of step with penalties to be

visited upon persons in whom the level of trust reposed in them was similar to

that of the Appellant.



In the ultimo this court is satisfied that all the grounds of appeal raised by the

Appellant have no merit and they should all fail.



It is thus ordered as follows:



The Appeal being without merit be and is hereby dismissed with costs.



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

President Labour Court




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Maganga and Associates – Appellant’s Legal Practitioners

Kantor and Immerman –Respondent’s Legal Practitioners




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