Happison Sigauke v Falcon Gold (Dalny Mine)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/626/14
HARARE, 11 & 26 SEPTEMBER, 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE           JUDGMENT NO. LC/H/626/14

HARARE, 11 & 26 SEPTEMBER, 2014		         CASE NO. LC/H/273/13

In the matter between:-

HAPPISON SIGAUKE					Appellant

And

FALCON GOLD (DALNY MINE)				Respondent

Before the Honourable B.T. Chivizhe, Judge:

For Appellant:		 Mr R. Matsikidze (Legal Practitioner)

For Respondent:		 Mr R. Moyo (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against a determination by the Arbitrator handed down on the 10th April, 2013. The operative part of the awards reads as follows;

“THE REMEDY

Having made the observation above below is my award:

Claimant’s dismissal is substantively fair.

Claimant’s claim is therefore dismissed for lack of merit and therefore his dismissal is upheld.

Claimant shall meet his costs.

I so award.”

The facts in the matter which are largely common cause are as follows;

The Appellant was employed by the Respondent as the Chief Assayer. Part of his duties included keeping safe and secure samples received in the assay laboratory from various mines. It was also not in dispute that a spare key to the safe had been missing for in excess of seventeen years and had never been found. On the 10th of May, 2012 the Appellant in the company of two others, opened the safe and discovered that nine gold bullion samples were missing. The Appellant had been asked to release the gold bullion samples in question. The Appellant had no idea as to when the gold bullion could have gone missing from the safe. The Respondent consequently levelled two charges of misconduct against him viz.

Violation of Section 4 (g) of the National Code of Conduct, Statutory Instrument 15 of 2006 i.e. any act of conduct or omission inconsistent with the fulfilment of the express implied conditions of his contract.

Violation of Section 4 (a) i.e. Substantial Neglect of his duties.

The Appellant was found guilty on the first charge on the basis that he had; inter alia, committed an act of omission by failing to keep track of the gold samples which could have been stolen anytime from the period 13 January, 2013 (being the last date on which the safe was opened) to 10 May 2013 (the date of discovery of the theft of the samples). On the charge of substantial neglect of his duties the Appellant was found guilty on the basis that after having discovered the theft of the nine samples he did not immediately make a report to his superiors. He only made a report five days after the discovery after being prompted by his immediate superior.

The Disciplinary Committee after convicting Appellant on both charges imposed a dismissal penalty. The Appellant noted unsuccessfully an internal appeal. He lodged a complaint with the Labour Officer. The matter was upon failure to conciliate then referred to compulsory arbitration which culminated in the award referred as supra.

Still aggrieved Appellant noted the present appeal. The Appellant has raised four grounds of appeal. The Respondent in its notice of response objected to the first three grounds of appeal as being incompetent. The Respondent contention is the grounds of appeal which raise procedural irregularities were not raised before the Arbitrator and are consequently not properly raised before the Labour Court. In oral submissions counsel for Appellant raised the further point that three grounds raising as they were points of law which could be raised at any stage of the proceedings even at this late stage of an appeal against the Arbitral award. The Respondent raises a valid objection. It is clear from a perusal of the record that the Arbitrator’s terms of reference did not include a consideration of procedural matters. His sole terms of reference was to determine the ‘substantive fairness of the Appellant dismissal’. Clearly therefore the Arbitrator had no mandate to deal with procedural matters. Couched as they are the grounds of appeal also do not raise any points of law as outlined in the Muzuva vs United Bottlers decision.

In the event that I am wrong however in reaching this the conclusion it is the court’s finding that the perceived procedural flaws could have benefited the Appellant if he could establish that they were material and he was greatly prejudiced. Appellant has not shown any prejudice suffered as a result of the perceived procedural flaws.

There is one additional issue raised by the Appellant on the date of hearing [through oral submission]. The issue raised was that the nature of the first charge levelled against the Appellant being essentially a theft charge and theft being a charge of criminal nature then on the basis of the Chadambuku vs. Astra Industries SC 27/2012the burden of proof in the matter had to be one of proof beyond reasonable doubt. The Respondent had however according to Appellant failed to establish both charges beyond reasonable doubt. The Respondent’s counter to the submission was that the charges levelled against the Appellant were two i.e. ‘conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract’ and ‘substantive neglect of his duties’. The Appellant was not charged with theft therefore the principles laid down in Chadambuka did not apply.

I agree totally with the Respondent submissions. The record shows clearly the two charges levelled against the Appellant. The aspect of theft allegations being raised simply does not arise from the record. Whilst it is correct that the principle is indeed established in the Chadambuka case that where a person in a disciplinary hearing is charged with an offence of a criminal nature such an allegation should be proved beyond a reasonable doubt the principle is clearly inapplicable in this case where the charges levelled are not of a criminal nature. I would consequently dismiss the point.

It follows that on the merits there is only one ground of appeal before the court. The Appellant is basically challenging the substantive correctness of his conviction on the charges. The Appellant submitted that both charges were not established by the Respondent Disciplinary Committee. In regards the first charge it was Appellant contention that it was not clear what act of omission inconsistent with the fulfilment of the express or implied conditions of his contract was proved. With regards to the second charge Appellant submitted that it was never established clearly the procedure he was supposed to follow to file the report. He should not have been found to be negligent in the circumstances.

The two charges levelled against the Appellant were that of ‘conduct or omission inconsistent with the fulfilment of the express or implied conduct of his contract’ and ‘substantial neglect of his duties’. The Respondent at the Disciplinary hearing clearly established that the Appellant was the sole custodian of the gold bullion samples that went missing at an unspecified period. The Appellant’s act of omission was that as the sole custodian of the gold bullion samples, he failed to safeguard the samples; he also failed to vigilantly keep track of the samples such that he failed to indicate at what stage the samples could have been stolen from the labotory.

The Appellant has however brought in the issue of the spare key which had been missing for 17 years and suggests that as he was not the only custodian of keys the charges were improperly levelled. His submission is that the employer ought to have investigated the matter further rather than making him the sacrificial lamb. The issue of the spare key would have been relevant in my view were the Appellant charged with theft. He was however not charged with theft. He was charged with ‘conduct or omission inconsistent with the fulfilment of the express implied conditions of his contract’ in that by his conduct he clearly failed a fundamental part of his duties to at least ensure that he, against the background where there was a spare key lurking, he kept track of the samples maybe by random checks. As it was he could not tell the employer when the samples disappeared from the safe. On the second charge of substantial neglect of his duties, the Respondent established that the Appellant had no record anywhere of the number of gold samples which were under his custody. He could not independently ascertain the number of samples missing from the safe. The Appellant also did not immediately report to his immediate superiors the case of missing samples only doing so after five days. The Appellant has also sought to argue that he was not aware of the proper procedure. That argument is clearly porous. The Arbitrator correctly captured in his award that ‘considering the sensitivity of the matter the Appellant ought to have immediately informed his superiors’. On the basis of the facts and evidence in record the Appellant was properly convicted on both charges. The charges being serious charges the penalty of dismissal was clearly justified.

The appeal is consequently dismissed with costs.

MATSIKIDZE AND MUCHECHE, Appellant’s legal practitioners

GILL, GODLONTON & GEERANS, Respondent’s legal practitioners