Herbert Zindoga v DHL International

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 26 FEBRUARY 2024
JUDGMENT NO. LC/H/71/24 CASE NO. LC/H/862/23
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 26 FEBRUARY 2024

JUDGMENT NO. LC/H/71/24 CASE NO. LC/H/862/23

IN THE MATTER BETWEEN:-

HERBERT ZINDOGA	APPELLANT

AND

DHL INTERNATIONAL	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Ms. N. Matongwana

For Respondent	Mr. P. Dube

MURASI J.,

This is an appeal against the decision of the National Hearing Committee which upheld the decision of the Hearing Committee.

The brief facts are that Appellant was employed by the Respondent. He is alleged to have inflated his overtime claims. He was charged and brought before the Hearing Committee which found him guilty and recommended his dismissal. Dissatisfied with this decision, Appellant appealed to the National Hearing Committee which proceeded to uphold the decision of the Hearing Committee. Appellant has now approached this Court for relief.

Appellant has filed seven grounds of appeal. The gravamen of the grounds of appeal rests on the fact that it is averred that Appellant’s conviction was wrong as there was no evidence which showed that he had committed the offences in question. The Court informed the Appellant’s representative that the sixth and seventh grounds of appeal raised procedural issues. Ms. Matongwana stated that she in fact was going to request the Court to withdraw the two grounds of appeal. They were accordingly expunged from the record.

At the commencement of the proceedings, Ms. Matongwana raised two preliminary issues. The first was to the effect that the deponent to Respondent’s Notice of Response had not filed the requisite authority to do so. The second was that the Notice of Response had not complied with

the Rules. These were indeed futile attempts. It emerged that Respondent had filed the requisite authority at a later date and there was a concession by Ms. Matongwana that the Notice of Response indeed complied with the Rules.

As far as the merits of the matter was concerned, Ms. Matongwana stated that she would abide by the documents filed of record. She submitted that there was an admission during the proceedings before the Hearing Committee by the Complainant that there was insufficient evidence to prove the matter. This was stated to be in regard to the allegations that Appellant had inflated the figures arising from the work done on 21st February. It was argued that Appellant had proceeded to make a delivery using his own motor vehicle but had not found anyone at that address and had proceeded home and that the overtime he had claimed was up to 13.00 hours.

As far as the events of the 24th February were concerned it was submitted that there was shipment which was supposed to be collected and it had taken some time. Appellant had thus waited in his motor vehicle outside the premises. Ms. Matongwana further submitted that no cogent evidence had been adduced which would have resulted in Appellant’s conviction.

In response, Mr. Dube submitted that Appellant had failed to demonstrate that the tribunal a quo was wrong in confirming the decision of the Hearing Committee. It was argued that Appellant had made the admission that he had left the office at 11.40 hours on the 21st February. He was then called upon to show that he had gone to make a delivery on behalf of the Respondent but had been unable to show this. Mr. Dube stated that the tribunal a quo was therefore correct in finding that the Appellant had inflated the figures.

Mr. Dube submitted that Appellant did not dispute the fact that he had signed off at 19.10 hours according to the records he had produced. This therefore meant that he could not have legitimately claimed to have knocked off at 20.00 hours as shown in the claim form. It was argued that Appellant had not demonstrated that the findings of the tribunal a quo were irrational in the circumstances. Mr. Dube also for punitive costs as he alleged that the proceedings were spurious. This was resisted by Ms. Matongwana who stated that Appellant was genuinely aggrieved by the decision and wanted the matter appealed against.

ANALYSIS

It is trite that in order for an appellate court to interfer with the decision of a lower tribunal based on factual findings, it must appear that some error has been made in exercising the discretion and that the tribunal a quo was guided by irrelevant of extraneous facts in arriving at the conclusion that it did. It must also appear that the decision was not based on any evidence. Put differently, it must appear that no person properly applying his/her mind to the issue to be decided could reach such a conclusion. In other words, the decision must be irrational. (See generally Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S), Nyoni v Secretary for Public Service, Labour and Social Welfare & Anor 1997 (2) ZLR 516.)

I will begin with the grounds of appeal. The remaining five grounds of appeal are clearly generalized. They are not concise and precise. There is general averment that no evidence adduced in order to show that Appellant was guilty of the charges. The standard of grounds of appeal enunciated in Dr. Nobert Kunonga v Church of the Province of Central Africa SC 25/17 is clear. Grounds of appeal must be clear and concise so that both the Respondent and Court are in no doubt as to what the appeal is all about. I note however that the Respondent has not taken issue with the grounds of appeal. What is clear from the grounds of appeal is that they do not address the findings of the National Hearing Committee. The findings are therefore left unscathed. This Court brought to the attention of Ms. Matongwana during proceedings that this was indeed the case. However she did not do anything to correct the situation.

As observed elsewhere in this judgment, the real issue that can be gathered from the grounds of appeal is the issue of sufficiency of evidence. The findings by the National Hearing Committee were quite lucid as far as the issue of evidence was concerned. For example, the Committee makes the following findings as regards the first ground of appeal brought before it:

“Ground is dismissed as not being factual. CCTV footage only aided the Disciplinary Committee’s decision which was based on other factors- eg.- on the 24th claim dispatch book provided by the accused was signed off at 1910 hours contrary to 2000 hours he indicated on the claim sheet. In addition on page 19 of the record it was again proved that Appellant claimed more hours than actual overtime worked. Appellant even admitted CCTV footage was correct on page 14.”

A reading of those findings shows that the National Hearing Committee referred to the evidence on the record of proceedings. The Committee refers to pages and what was contained in those pages. A reading of the record shows that Appellant made the admissions/concessions referred to by the Committee. Page 53 of the current record contains the admission referred to by The National Hearing Committee. This issue was also brought to the attention of Ms. Matongwana. She sought to downplay its impact by stating that the record of proceedings had been prepared by the Respondent and that Appellant had issues with the record. The Court notes that this was the first time the issue was raised by the Appellant and does not explain why the Appellant made the admission in those proceedings.

The explanation advanced by the Appellant’s representative as to what transpired on 21st February was quite interesting. It was averred that Appellant was going to make a delivery on his way home. Appellant admits that he left the office at 1140 hours as captured by the CCTV. He thereafter makes the explanation that he found no one at the address and proceeded home. Two issues arise from this explanation. The first is that Appellant stated that this was an urgent delivery which could not wait. Yet, Appellant alleges that he proceeded home when he failed to locate anyone at that address. In any event, if it was that urgent and could not wait, why was it only delivered the following day at 1400 hours by a different person? Secondly, Appellant states that he made the decision to go home. Who then was supposed to authorize that he had completed work at 1300 hours?

As to the events of the 24th February, Appellant’s explanation remains unconvincing. He produced a record showing that he had signed off at 1910 hours. However he went on to claim that he had left the office at 2000hours. CCTV showed that the lights in the office had been switched off at around 1800 hours. Appellant states that he was outside in his motor vehicle waiting for a shipment. Can it be said that the tribunal a quo misdirected itself in arriving at the decision. I think not. In Early Bird Farms (Pvt) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) it was stated as follows:

“When determining whether or not an employee is guilty of misconduct the test which should be applied is whether the version of the party who bears the onus of proof (Employer) can be believed or not. The process involves comparing the version of both parties to determine which version is more probable.”

It is also a truism that what is being weighed in the ‘balance’ is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.

It is my considered view that the evidence that was adduced clearly showed that Appellant was guilty of the misconduct preferred against him. There was no misdirection on the part of National Hearing Committee upholding the decision of the Hearing Committee. The appeal ought to be dismissed.

Mr. Dube requested the Court to award Respondent costs on a legal practitioner/client scale as he alleged that the appeal was spurious and had unnecessarily put Respondent out of pocket. As pointed out, this was resisted by Ms. Matongwana. I do not believe the circumstances of this case are such that punitive costs need to be awarded.

The Court makes the following Order:

The appeal, being devoid of merit, is hereby dismissed.

The decision of the National Hearing Committee is hereby upheld.

Each party to meet its own costs.

ZIRWF-	Appellant’s representatives DMH Law Chambers-	Respondent’s legal practitioners.