Gloria Munetsi v Diagnostic Radiology Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/472/2016
HARARE, 8 MARCH 2016
CASE NO. LC/H/472/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/472/2016

HARARE, 8 MARCH 2016			     	   CASE NO. LC/H/1074/15

AND 5 AUGUST 2016

In the matter between:-

GLORIA MUNETSI						Appellant

And

DIAGNOSTIC RADIOLOGY CENTRE				Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr T. Chigubhu (Trade Unionist)

For Respondent	Mr S. Bhebhe (Legal Practitioner)

HOVE, J:

The appellant in this matter was employed by the respondent.

She was charged in terms of the National Code of Conduct SI 15/2006 under section 4 (a) thereof.  The charge was

“any act or conduct or any omission inconsistent with the fulfillment of the express and implied conditions of her contract.”

The factual allegations which led to the dispute between the parties is briefly that on or about 31 October 2015, the appellant brought some meat and other food stuffs into the work premises. She proceeded to store the same in a refrigerator at the work place.

The respondent alleged that the refrigerator was meant for keeping of drugs and it was kept locked. It further alleged that the appellant knew that the refrigerator was for storing drugs and it was an act inconsistent with her contract of employment to keep her meat in that refrigerator.

The appellant was found guilty and dismissed.  She appealed to this court against the decision to find her guilty and to dismiss her.

The appellant raised a preliminary issue and argued that the proceedings were a nullity due to gross irregularities arising from the manner the proceedings had been conducted.

The preliminary issue raised is clearly raising an issue that is properly raised in a review application and not in an appeal.

See in this regard the case of Muringi vs Air Zimbabwe & Anor 1997 (2) ZLR 488.

Where it was stated that Judicial Review as the phrase implies is not concerned with the correctness of the decision but with the decision making process.  It follows therefore that issues that have to do with procedure i.e. issues that are not concerned with the correctness of the decision but with the decision making process can properly be raised by way of review not in an appeal which concerns itself with the correctness of the decision.

The preliminary point is therefore improperly raised and must fail.

From the record, the basis of the charge was that,

“It was common knowledge and a standing instruction that the use of the kitchen and refrigerator  was prohibited and the refrigerator has always been kept locked for the exclusive use of Doctor’s D and N Ndlovu.  You were not authorized to access those keys.”

For the appellant to be found guilty, it was incumbent on the employer to show that;

The appellant knew that she ought not to have used the refrigerator.

There was a standing instruction that the use of the refrigerator was prohibited and the appellant was aware of that standing instruction.

That the refrigerator was kept locked for the exclusive use of the doctors.

I have gone through the minutes of the hearing and I am of the view that the employer never proved or managed to show that the appellant was aware that she could not use the refrigerator nor that she required permission to use it or access the keys.

Her evidence which was not successfully challenged was that a colleague saw her taking her drink warm, and asked her why she was not using the refrigerator as all her other colleagues used it.  Evidence on record shows that indeed her workmates accessed the refrigerator and used it for personal use.  She then started putting her food stuffs in the refrigerator.

She also submitted that she was never given the standing instruction that the refrigerator was not to be used.  The employer never specifically or otherwise stated that the instruction or standing order was ever given to her or that she was made aware of this standing instruction.

Evidence on record also shows that the refrigerator was also being routinely used by almost all the staff members.

Evidence also shows that the keys to the refrigerator were also kept at the reception and staff members were freely accessing the keys and using the refrigerator for personal food stuffs and drinks.

The record also shows that the refrigerator was also not kept for the exclusive use of the doctors as staff members were using it freely and drinks for the ambulance personnel were also kept in that fridge.

The appellants evidence that when she was employed, she had not used the refrigerator and only started using it when her workmates invited her to use it as they were doing was never controverted.

The law is very clear that the fact that others are doing wrong does not in itself absolve an employee who is found guilty of doing the same wrong thing.  See in this regard the case of Lancashire Steel PL vs Elijah Zvidzai & 3 Ors where it was said that;

“if they (employees) are guilty, it is not in law relevant that others may have also been guilty.”

The mere fact that others were using the refrigerator would not in itself absolve the appellant if she is found guilty.

See also the case of Air Zimbabwe v C. Mnensa SC 89/04.

I am however of the firm view that the guilty of the appellant was not proved on even the lower standard of a balance of probabilities.  Firstly no one was able to state that they had brought to the appellant’s attention the fact that there was a standing instruction not to use the refrigerator for personal use nor that it was for the exclusive use of the doctors.

The fact that others were also using it goes to disprove the employers allegation that it was for the exclusive use of the doctors and for keeping drugs only.

The employer was alive to the need to prove that the appellant was aware of this standing instruction but all of the witnesses except for one could not confirm that the appellant was aware of this instruction.  The employer could also not state that it had brought this to the attention of the appellant.  The one witness who said the appellant knew, could not state why she was of that opinion.  Balance of probabilities favour the majority position that the appellant did not know of the standing instruction especially in view of the fact that no one had told her.

When all the other witnesses called could not state that the appellant was aware of this prohibition, it was just appellant’s word against that of Mrs Ngwenya.  No other person or witness could affirm that the appellant had been aware of the prohibition.  Nothing written prohibiting the use of the refrigerator was produced.  Doctor Ndlovu and Sister Mandebvu who had told the other staff members had not testified that they had made the appellant aware of the prohibition.

The Human resources personnel and or administration department personnel had not told the appellant not to use the refrigerator.  Appellant just followed the common practice.

A sister Mushura stated that the staff knew without specifically stating that the appellant knew.  She stated that the staff had no access to the keys when the record shows that the staff used it and had access to the keys which were kept at the reception. Her evidence ought not to have been taken as the more probable one when it was clear that staff members routinely accessed the keys which were kept at the reception.

The record shows that the hearing officer then called for mitigation and the appellant stated that she had no knowledge of the fact that the refrigerator could not be used.

The hearing officer in finding her guilty, did not say that she knew or show that she was aware of the instruction.

This shows that the respondent had failed to establish on a balance of probabilities that the appellant was aware of this instruction.

While this court, as an appeal court, should not lightly interfere with findings of fact of a lower tribunal, the court can so interfere where there is a serious misdirection on the facts as is the case in casu.

See in this regard the case of National Foods United v Mugadza SC 105/95.

The court can also interfere if the decision is grossly unreasonable, capricious and mala fide.  In any case the findings of a court or tribunal must be supported by the evidence placed before that court.  A court cannot grant relief if the grounds of the remedy have not been proved.

In Zimasco v Chizema SC 38/07 the court held that;

“In cases of this nature the courts’ brief is to determine, on the basis of the evidence before it, whether or not the case has been proved against the respondent.  It needs no emphasis that he who alleges anything against another person must prove such allegation.”

Had the hearing officer carefully analyzed the evidence before him, he would have realized that the evidence did not show that the appellant was aware of the prohibition.  A finding of guilty was not supported by the evidence on record.

In the case of Tirivangana v University of Zimbabwe SC 21/13

The point was made that where an adjudicator, in considering the evidence placed before him, is irrational, then the court can interfere with his or her discretion.

See also Hama v National Railways 1996 (1) ZLR 664

The probabilities from the totality of the evidence on the record which was placed before the hearing officer shows that the appellant was not aware that there was that standing instruction.  It is thus grossly unreasonable, irrational, mala fide and capricious to have found that the appellant was guilty of not following a standing instruction that she was not aware of.  In any event the onus to prove was on the employer to show that the appellant was aware of the prohibition.  In case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 SC the court held that;

“ordinarily a party who makes a positive assertion must prove it.”

The employer failed to prove its assertion In this case. In Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 AD it was held that;

“The General principle governing the determination of the incidence of the onus is the one stated in the Corpus Luris semper nesessitas probandi illi qui agit. In other words he who seeks a remedy must prove the grounds thereof.

It has not been shown on a balance of probabilities that appellant was aware of the existence of the prohibition.

In the result the appeal is upheld with costs.  The decision to find the appellant guilty is set aside.  The appellant is to be reinstated into her position with no loss of salary or benefits with effect from the date of the unlawful dismissal.

Should reinstatement no longer be an option the appellant is to be paid damages for the loss of her job.

The damages are to be agreed between the parties or assessed by the court should the parties fail to agree.

Kantor & Immerman, respondent’s legal practitioner