Herbert Moombo v Art Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/283/24
HARARE, 28 MAY, 2024 & 1 JULY 2024
CASE NO. LC/H/1007/23
HERBERT MOOMBO
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/283/24

HARARE, 28 MAY, 2024 & 1 JULY 2024	CASE NO. LC/H/1007/23

HERBERT MOOMBO	APPELLANT

Versus

ART CORPORATION LIMITED	RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- B. Maruva, (Legal Practitioner) For the Respondent	- N. Madya, (Legal Practitioner)

KUDYA J:

This judgment is in respect of an appeal which is cited by the appellant employee as an appeal against the verdict of the General Manager Appeals Authority dated 20 October 2023 and the NEC Appeals Committee decision of 17 November 2023. Ten (10) grounds of appeal were set out as the foundation of the appeal.

In response to the appeal the respondent employer took the point in limine that the appeal was not compliant with Form LC 4. In particular the form used did not inform the respondent of its 10 day right dies to respond to the appeal. The respondent therefore concluded that the appeal was fatally defective and thus prayed that same be struck off the roll. It further stated in limine that appeal grounds 1 to 4 were invalid as they raised review grounds, instead of appeal grounds.

1

The appellant in his heads of argument was adamant that the points in limine were not merited so he prayed that they be dismissed and that the matter be determined on its merits. On the hearing date the respondent persisted with the points in limine. In reaction to that the appellant conceded in his oral submissions that the objection vis grounds 1 to 4 was well placed. He consequently dropped these grounds resulting in the court handing down an order that grounds 1 to 4 having been dropped by appellant they be and hereby be struck out. This effectively left for determination only grounds 5 to 10. As regards the point vis the improper form use no motivation of same was made at the hearing. The court concluded that the respondent was therefore not keen on continuing with it. It was therefore let to pass by the court. Such a conclusion therefore only left for determination the merits of grounds 6 to 10 of the appeal.

For the completeness of record these grounds were styled as follows:-

Ground 5

The Appeals authority erred and misdirected himself at law in basing his verdict and upheld the decision by the Disciplinary Committee which had based its finding on illegally obtained information which invaded the appellant’s right to privacy by hacking into Appellant’s private whatsapp conversations without his consent or without obtaining any lawful authority to do so.

Ground 6

The Appeals authority grossly erred at law in arriving at the conclusion that appellant acted in a manner that is inconsistent with the express or implied conditions of one’s contract of employment in the absence of any evidence to justify that conclusion.

Ground 7

The Appeal authority grossly erred and misdirected himself in admitting and using discredited whatsapp messages as evidence without proper verification and authentication from the service provider and also that the evidence was insufficient to clarify the allegations due to absence of a time stamp on the messages of which that element of the evidence was vital to establish whether or not the communications were done at the alleged period in question and also prove the authentically of the said messages.

Ground 8

The Appeal authority grossly erred and misdirected himself at law in relying on the evidence of a suspect witness Nyabereka who had a motive to lie against the Appellant since he was fingered as a suspect in the alleged money heist by Alois Mombo and that he was summoned at the middle of the hearing to cover loopholes in the complainant’s case after cross examination of the complainant during the disciplinary hearing.

Ground 9

The Appeal authority erred and misdirected itself by upholding the appellant’s conviction and dismissed the Appellant’s claim of victimization without any legal valid reason.

Ground 10

Ad Sentence

The Appeal authority grossly erred and misdirected itself in dismissing the appellant upon paying lip service to the mitigation raised which were sufficient enough to attract a lenient sentence.

In the result the appellant prayed that:-

The decision of the appeal authority be set aside and be substituted with the following:

That the appellant be and is hereby found not guilty and acquitted of all the charges.

That appellant be and is hereby reinstated to his position without any loss of salaries and benefits.

In its response to grounds of appeal 5 to 10 the respondent mentioned the following:

Ground 5

Challenge is on admissibility of evidence which was appellant’s contention from the outset yet post filing of the submissions on the issue by both parties appellant did not persist with the

argument resulting in the committee moving on to determine the matter with the hearing of evidence. Appellant is therefore stopped from raising that issue and is now subject to peremption and acquiescence. Besides,the argument is without foundations as borne out by submissions made by respondent on the issue and the policy document relied on by the respondent. The perceived rights that accrue from the provisions of the Constitution and Statutes relied on would only have been for a complaint from appellant’s brother on the perceived invasion of privacy. The whattsapp messages were obtained within the context of the employer’s IT policy. The employer was entitled to access all material stored in its devices with or without express written authority.

Right to privacy is not absolute Section 57 (d) of the Constitution, Section 3 of the Civil Evidence Act and provisions of Cyber and Data protection Act do not apply in the matter at hand. In conclusion cogency of the evidence matters and not the form. Linked to that is the importance of flexibility of disciplinary tribunals codes principle that they only conduct an enquiry and this extends to the admissibility of evidence during the hearing.

Grounds 6 to 9

All grounds are without merit and should be dismissed. Evidence in the form of audited whattsapp messages sufficiently proved the charges. One of the issues in those messages was carried into execution or there was an attempt to do so. At the center of the charge of omission or act contrary to express or implied conditions of the contract in the case at hand it was wrong for appellant to mislead management on his communication with his brother let alone his stating that he did not know of the brother’s whereabouts. In an employment relationship employee should act to further the interests of the employer ahead of the everything. The victimisation argument was neither here nor there. If it was appellant had the onus to sustain it as it was his special defence to the charge.

Ground 10

Penalty was judiciously imposed. Dismissal was the only penalty to be imposed in the circumstances of the case. No other penalty would have been appropriate. Besides penalty is at

employer’s discretion.Once employer takes a serious view of the case dismissal is merited. Appellant’s conduct was not trival. It boarded on defeating the ends of justice to the company’s detriment and thus dismissal was inevitable.

In the result the respondent prayed that the appeal be dismissed.

It is settled that the appeal court duty does not extend to its substitution of the triers of fact’s discretion. See Nyahondo v Hokonya and others 1997(2)ZLR457(S).The threshold

…upheaval of a trier of fact’s discretion is so high that it has been said to only occur where there is gross misdirection and demonstration of gross unreasonableness showing that the trier of fact had lost leave of its senses. See ZINWA v Moyounotsva SC 28-15 . Applying the law to the facts of the matter at hand the appeal grounds are discussed and concluded as appears hereunder.

Ground 5

The respondent correctly captures the issue as discontent arising from what appellant styles improperly admitted evidence. In his oral address the appellant dwelt at length on the argument that respondent blew hot and cold by concluding in one breath that appellant had been honest with his dealings within it to the extent that he was acquitted on the charge of giving false evidence/ dishonesty yet based on the same facts the respondent concluded that appellant acted contrary to his employment contract conditions. In fact appellant reiterated that the same fact situation over the 2 charges is what had prompted him earlier on in limine in the disciplinary proceedings to argue that there had been an improper split of the charges.

The court agrees that if one views the facts of the case from a simplistic perspective that the crux of the matter was that appellant was in communication with his brother who had offended the respondent’s interests yet he claimed that he was not but based on communication retrieved form the employer’s gadget which was being used by the brother it became apparent that there was no truth in the appellant’s confession of ignorance of his brother’s whereabouts and/ or communication with him. It may appear that there was a duplication of facts of the matter.

It need be however be observed that whilst the threshold of an out right lie or deceit may not have been reached on the false evidence charge the same cannot be said of the conduct inconsistent charge. The record is replete with evidence that the messages were played at the hearing and that a transcript of the same was also availed to the parties. It is clear from the

JUDGMENT NO. LCH/283/24

conversation filed on record and recorded in vernacular that indeed appellant was in communication with his brother and more particularly on issues that were ground documents which were work related which appellant was asked to safe keep for the brother. It is therefore clear that such conduct was contrary to furthering the employer's interests.

The argument that the messages needed authentication etc is neither here nor there. Appellant admitted that he had indeed communicated as alleged yet he professed ignorance about the brother’s whereabouts. If that conduct cannot be adjudged inconsistent with one’s contract then the court wonders what could be so adjudged.See Standard Chartered Bank vs Chapuka SC124/04. Arguments about the right to privacy etc do not detract from the conclusions arrived at by the respondent. It was correctly observed that if there was anyone to rely on that right it could only have been the appellant’s brother whose laptop the employer accessed. It need however be noted that as per the IT policy which the brother signed that argument also falls flat on its face. The court is therefore satisfied that there is no misdirection advanced in response of ground 5 which warrants this court’s interference.

The ground must therefore fail.

Grounds 6 to 9

These speak essentially to the same issue discussed at length in ground 5 above. In particular,as regards ground 6 it has already been stated that the very conduct of the appellant stating that he was not in contact with his brother yet he was gave credence to the fact that he was acting contrary to this employment contact thus acting outside the implied conditions of his contract.

Vis ground 7 there was no need for authentication of the messages or a time stamp since content of the messages spoke for itself.See Lunga vs ZETDC HC-H267-06 on resipsa loquitar.

On ground 8 whether Nyabereka was not a suspect witness or not also could not aid appellant’s case as his guilt was not birthed by Nyabereka’s evidence but his conduct clearly spoke for itself to the extent that aside Nyabereka’s evidence he could still have been found guilty.

JUDGMENT NO. LC/H/283/24

On ground 9 assuming that appellant’s victimisation argument held water it still would not detract from his infraction.

The court is satisfied that appellant’s guilt was arrived in circumstances which were beyond reproach.

Ground 10

It is settled that penalty is the employer’s discretion see Nyawasha v Circle Cement SC- 60-03. Also see Chimoto v Innscor SC-6-12 where dismissal was adjudged appropriate even for a minor infraction.In this case at hand it is clear that appellant’s conduct fell close to obstruction of justice and that cannot be viewed lightly. There was no misdirection on the penalty plane calling for its vacation or reduction to a lesser penalty. The argument is without merit and should fail.

In the ultimate the grounds 5 to 10 being without merit in their entirety should be dismissed.

IT IS ORDERED THAT

Appeal grounds 1 to 4 be and are hereby struck out.

Appeal grounds 5 to 10 being without merit they be and are hereby dismissed in their entirety with costs on the ordinary scale.

JUDGMENT NO. LCH/283/24

Zuze Law Chambers- Appellant’s legal practitioners

Wintertons - Respondent legal practitioners