Isabella Muchemwa v DHL International (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 10 JANUARY 2024
JUDGMENT
LC/H/3/24 CASE
NO. LC/H/869/23
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 10 JANUARY 2024

AND 15 JANUARY 2024

JUDGMENT LC/H/3/24 CASE NO. LC/H/869/23

IN THE MATTER BETWEEN:-

ISABELLA MUCHEMWA	APPELLANT

AND

DHL INTERNATIONAL (PRIVATE) LIMITED	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Ms. N. Matongwana

For Respondent	Mr. O. Kondongwe

MURASI J.,

This is an appeal from the decision of Respondent’s Appeals Committee. Appellant was in the employ of the Respondent. Following Appellant’s submission of documents claiming overtime for work done, investigations were instituted. This related to overtime claimed in the period from 22 February 2023 to 11 march 2023. Respondent was of the view that Appellant had submitted fraudulent claims and proceeded to charge the Appellant. Appellant was brought before the Disciplinary Committee which found the Appellant guilty and recommended her dismissal. Appellant filed an appeal with the National Hearing Committee which is under the National Employment Council for the Communications and Allied Services Sector. This Committee upheld the decision of the Disciplinary Committee. Appellant has thus sought relief from this Court. Appellant filed eight grounds of appeal. However, after an exchange of the issues raised in the seventh and eighth grounds of appeal, Ms. Matongwana indicated that Appellant was abandoning those two grounds of appeal. The remaining grounds of appeal are as follows:

The national hearing committee erred in failing to consider that there was no sufficient evidence which proved appellant guilty as charged.

The national hearing committee erred in upholding the decisions of the hearing committee but failed to note that there was no mechanism that was put in place to check working hours of each employee.

The national hearing committee erred in failing to take note that there was no documentary evidence which proved that employees were advised of the procedure and that overtime is calculated to the minute.

The national hearing committee erred in failing to consider that the complainant conceded that the appellant moves around the premises as part of her duties.

The national hearing committee erred in failing to take note that there were shortages of staff and complainant conceded the same.

The national hearing committee erred in failing to take note that respondent was avoiding to pay overtime.

At the commencement of the proceedings, Ms. Matongwana raised two preliminary issues. The first was that the Respondent’s legal practitioners had not filed an Assumption of Agency as required in terms of the Rules. The second was that there was no evidence showing that the deponent to Respondent’s Opposing Affidavit was duly authorized thereto. The latter preliminary point was dismissed out-rightly after it emerged that Respondent’s Legal practitioner had shown Appellant’s representative the Resolution before proceedings but she had omitted to address the Court on this point. In Nehanda Housing Coop Society and Others v Moyo and Others HH 987/15 MAFUSIRE J had this to say:

“In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter, even those that you may perceive to be adverse to the relief that you seek..

Failure to disclose material facts disentitles the applicant to the relief which he seeks, or disentitles him to keep the one he had already obtained.”

This issue was brought to Appellant’s representative during those proceedings.

As far as the first point in limine was concerned, Respondent’s initial answer was clearly wrong and this was pointed out to him. Respondent’s counsel later sought the Court’s indulgence and condone Respondent for non-compliance with the Rules. In the Ex Tempore Judgment, the Court stated that it was in the interests of justice to condone this non-compliance with the Rules so that the matter could be heard on the merits.

In submissions on the merits of the matter, Ms. Matongwana stated that the CCTV which was relied upon was limited to the Operations area and did not cover other areas where the Appellant would be working. It was further argued that it had been stated during the hearing that Complainant had lost some of the CCTV footage. It was submitted that the evidence which was upheld by the National Hearing Committee was not sufficient in the circumstances as the unavailability of this information weakened Respondent’s case.

The Court reminded Ms. Matongwana to address the findings made by the National Hearing Committee as the appeal was based on those findings.

It was also suggested that the CCTV was subject to manipulation. When asked by the Court to support this with evidence of this having been raised in the tribunals a quo, Ms. Matongwana was unable to do so. She further submitted that there were no time sheets which were supposed to guide the employees in completing the overtime documents. She stated that she was abiding by the documents filed of record.

In response, Mr. Kondongwe stated that the six grounds of appeal were meritless as the appeal must be against the findings of the National Hearing Committee. He referred to the first ground of appeal which showed that the findings of National hearing Committee were that the lights had been switched off meaning that at that time cited on Appellant’s documents stating that she was at work, no one was at work at that time. It was further submitted that Appellant had claimed in her documents to have been standing in for Milton and a check was made and it was found that the said Milton was actually at work at that time. Mr. Kondongwe also referred to the admission made by the Appellant that she had made an error. He stated that Appellant had not brought this error to the attention of the Human Resources Department which department was going to process the overtime claims as submitted.

Mr. Kondongwe also referred to the findings made by the National Hearing Committee that there was a mechanism as the documents filed by an employee would be checked by the Supervisor and that if there was no mechanism, the Appellant would have been unable to claim the overtime. It was also submitted that Appellant had insinuated that she had proceeded on some errands during the time she claimed but had been unable to show which errands she had undertaken. As regards the sixth ground of appeal, Mr. Kondongwe stated it was being raised for the first time and was therefore improperly before the Court as the Court could not deal with it.

ANALYSIS

It is common cause that Appellant in this matter takes with the findings of fact made by the Hearing Committee and which were upheld by the National Hearing Committee. A reading of the Appellant’s grounds of appeal show that she takes issue with one issue, the sufficiency of the evidence. The Court will not deal with the sixth ground of appeal as the issue is being raised for the first in this appeal. That position is trite. Precedent has made clear what an appellate court is required to examine when an appeal is based on factual findings. KORSAH JA had this to say in Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S):

“The general rule of law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic of accepted moral standards that no sensible person which had applied his mind to the question to be decided could have arrived at such a conclusion.”

When Ms. Matongwana was making submissions, the Court had to constantly remind to address the findings made by the National Hearing Committee. As such, the bulk of the findings made by the National Hearing Committee remained unscathed.

A reading of the record shows that page 45 of the record contains the claims made by the Appellant. There is a column showing the total hours claimed as overtime, another column showing the actual hours claimed and the last column shows the ‘excess hours claimed’. For example, it is shown that on 23 February 2023, Appellant claimed two (2) hours as overtime when she had worked for thirty nine (39) minutes resulting in an excess of one hour and twenty minutes. On page 30, Appellant had this to say during the hearing:

“It’s only now that I’m discovering that overtime is recorded and claimed to the minute. I used to round off.”

In the case referred to above, the excess was one hour and twenty minutes. One would expect that a ‘rounding off’ of 39 minutes would be one hour. The same applies to claims for 20 February, 1 March, 2 March and 3 March. Was the Disciplinary Committee therefore wrong in arriving at the decision that the circumstances showed an intention to defraud the employer? In Nomsa Kanyoka and Others vs The State HB 151/12 CHEDA AJ had this to say about circumstantial evidence:

“It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with accuracy of mathematics. It is that set of facts or events which, if put together, will lead to a compelling conclusion. It is a set of facts or events pointing in one direction and so leading to a reasonable belief that those facts point to, or represent the correct position regarding the situation or matters under consideration. It is a set of facts that leave no doubt in a reasonable mind about what they portray. It is a series of undersigned, unexpected coincidences that would compel a reasonable person’s mind to one conclusion.”

There was an attempt to state that Appellant was unaware of such procedures yet an admission was made that Appellant had been in Respondent’s for a period of ten good years. This is a long time indeed. The ‘rounding off’ of the claimed hours could not be the result of errors by the Appellant. Excesses of more than an hour were recorded. This was too coincidental to be a coincidence. A reasonable tribunal could not have ignored finding that there was indeed a calculated intention to inflate the hours claimed as overtime. Was the evidence adduced sufficient prove the matter on a balance of probabilities? I am of the view that this should be answered in the positive. The case of O”HARA vs CENTRAL SMT CO. 1941 SC 363 cited in S vs Madeyi 2013 (1) ZLR 14 states as follows:

“It is trite that there is deemed to be sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the single witness, but more consistent with it than any competing account of the events spoken by him. If the

facts and circumstances proved other witnesses fit into his narrative so as to make it the most probable account of the events, the requirements of legal proof are satisfied.”

Appellant does not deny making the claims in questions. She makes an admission that these were not the exact figures but were the result of her ‘rounding them off’. The admission made during the hearing has not been withdrawn by the Appellant. It is my view that the evidence was sufficient to prove the case on a balance of probabilities. The appeal ought to be dismissed.

In the result, the Court makes the following Order:

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

Dube, Manikai and Hwacha-	Respondent’s legal practitioners.