Harold Muchenje v Beach Consultancy Company (Private) Limited t/a Aviation Ground Services

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3
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/183/2014
HARARE, 21 JANUARY 2014
CASE NO. LC/H/579/13
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3IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/183/2014

HARARE, 21 JANUARY 2014				       CASE NO. LC/H/579/13

& 28 MARCH 2014

In the matter between:-

HAROLD MUCHENJE						Appellant

And

BEACH CONSULTANCY COMPANY (PVT) LTD		Respondent

t/a AVIATION GROUND SERVICES

Before The Honourable Makamure, Judge

For Appellant		Mr. L. T. Musekiwa (Legal Practitioner)

For Respondent		Mr. A. Muchadehama  (Legal Practitioner)

MAKAMURE J:

The appellant was dismissed from the respondent’s employ following disciplinary proceedings.  His internal appeal failed. He was aggrieved and has therefore appealed that decision to this Court.

The appellant was charged along the following lines:

“1. Contravening paragraph (b) of Subsection of the schedule Part 5 of the AGS Code of Conduct that is to say: gross, improper, negligent or incompetent performance of duty due to causes within the employee’s control and to the extent to which property pr (sic) persons were placed in jeopardy and suffered damage, loss or injury, whether materially or financially or where a Company service or facility was disrupted as a result;

Alternatively

Contravening paragraph (d) of Subsection 3 of the Schedule, Part 5 of the AGS Code of Conduct, that is to say unauthorized use/diverting company funds for personal use without the requisite permission authority;

Alternatively

Contravening paragraph (k) of Subsection 3 of the Schedule, Part 5 of the AGS Code of Conduct, that is to say indulging in dishonest or improper practices or unbecoming behavior, including malpractice in a position of trust;

Alternatively

Contravening paragraph (l) of Subsection 3 of the Schedule, Part 5 of  the AGS Code of Conduct, that is to say obstructing or hindering the course of justice in terms of this Code, including failure to disclose material evidence or information;”

He was found guilty of the main charge and the 2nd and 3rd alternative charges.  My first observation relates to finding the appellant guilty of both the main and the alternative charges.  The idea behind charging a person with a main and a charge or charges in the alternative is to ensure that should the main charge not be proved, the facts will prove any one of the alternative charges.

Thus having found the appellant guilty of the main charge, it became unnecessary to prove the alternative charges. It is incompetent to convict a person of both the main and the alternative charges.

The second observation that I make relates to the essential elements and the facts pointing towards the appellant’s wrong doing.  Indeed the investigative reports show that the appellant “acknowledged he is at fault in that he failed to undertake his duties properly”

However, the record does not show which invoices went missing, how the respondent company exactly incurred loss or injury or where and when it suffered  disruption. After reading the papers the Court was not able to point towards any wrong doing by the appellant.  The appellant’s job description does not form part of the record.  Its absence,together with what I have indicated above make it difficult for this Court to agree with the lower appellate body.  There must be sufficient facts on which to found a conviction. As usual the party who makes an assertion must prove it on a balance of probabilities.(See Nyahondo v Hokonya & ORS 1997 (2) ZLR 457). In the present case the required onus was not sufficiently discharged.For that reason the appeal succeeds.

Accordingly it is ordered that the appeal be and is hereby granted.

The respondent be and is hereby ordered to reinstate the appellant with no loss of salary and benefits with effect from date of dismissal.

Should reinstatement be no longer an option the respondent be and is hereby ordered to award the appellant the appropriate damages as agreed between the parties in lieu of reinstatement.

In the event that parties fail to agree either party may approach the Court for quantification.

Musekiwa & Associates, Appellant’s legal practitioners

MbidzoMuchadeham & Makoni, Respondent’s legal practitioners