Kenias T Mujere v Zimbabwe United Passenger Company Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/224/2019
HARARE, 26 MARCH 2019
CASE NO. LC/H/APP/777/17
AND 28 JUNE 2019
XREF LC/H/108/17 (REV)
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/224/2019

HARARE, 26 MARCH 2019				CASE NO. LC/H/APP/777/17

AND 28 JUNE 2019						XREF LC/H/108/17 (REV)

In the matter between:

KENIAS T MUJERE								Appellant

versus

ZIMBABWE UNITED PASSENGER COMPANY LIMITED        		Respondent

Before The Honourable Makamure J;

For the Appellant			Ms A. Mugari (Legal Practitioner)

For the Respondent			Mr E. N. Dube (Legal Practitioner

MAKAMURE J:

This is an appeal against a decision of the Respondent’s Chief Executive Officer as the appellate body of the respondent which upheld the decision to dismiss the appellant from employment.

Having been aggrieved by the decision to dismiss him, the appellant appeals to this court on the following grounds:

The employer grossly erred in convicting the Appellant in terms of Statutory Instrument 15/2006 yet the appellant was served with changes relating to Statutory Instrument 67/2012.

The appellant was charged with a non-existent offence.

There was inequality before the law.

There was no evidence warranting conviction.

The penalty of dismissal was not warranted.

The facts of this case are as follows:

The appellant employed by the respondent as a Risk Conductor. He was charged with          “Theft/fraud” arising from the following allegations of violating section 5 (5.1) of S.I. 67/2012, “Theft/fraud” as follows:

“On various occasions, you requested conductor Munyaradzi Chengeta to give you different amounts of money without producing any signed voucher by your respective supervisor. You requested for hard cash in varying amounts that ranged between $10-00 and $20-00. On the 9th February 2016 at 1808hrs the conductor transferred $15-00 into your ecocash wallet number 0772435750 (Transfer ID 160209.1808.B00804). On the 7th June 2016 at 1902hrs the conductor transferred $20.30 into your eco-cash wallet number 0772435750 (Transfer I.D. PP160607.1902.C06104). This money would be taken from the revenue collected and you would then instruct the conductor to recover the money through collecting cash from passengers without issuing them with tickets. This act was found to be (an) act of misconduct in direct violation of section 5 (5.1.) to the S.I. 67/2012 as you were dishonestly taking Zupco money without authorization and with the intention to permanently deprive the company.

You are required to reply in writing to the allegations being levelled against you within a period of two days. You are also barred from entering the company premises to enable further investigations to be carried out unless summoned to do so by management. Please do a proper hand over take over before you proceed on suspension. The suspension will take effect from 30 September 2016 for a period not exceeding 14 working days and will be with full pay and benefits.

Please acknowledge receipt of this letter by signing and returning a copy of the letter to the office of the undersigned.”

A disciplinary hearing was conducted. He denied the charge. After evidence was led, he was duly convicted. He was penalized with dismissal. His internal appeal failed. He was aggrieved by that outcome hence the appeal now under consideration.

Before the ealier tribunal evidence was led from Munyaradzi Chengeta (Chengeta). Chengeta is a bus conductor. He told the disciplinary committee that on various occasions appellant demanded money from him. He would transfer the money to appellant’s account. Chengeta also said that sometimes he would give the appellant cash. This money was taken from revenue collected from the bus services. It was Chengeta’s evidence that the appellant impressed upon him (Chengeta) that this money was for Chengeta to retain his job. During the times when he demanded the said money appellant would alert the witness on the where abouts of the checking team to enable the witness (Chengeta) to get money from passengers and hand it over to the appellant without tickets having been issued. Appellant cross examined the witness but the witness was unshaken. Two more witnesses gave evidence. Their respective testimonies corroborated Chengeta’s evidence on all material respects.

The determination was that of guilty. The Chairman of the committee then advised the appellant that:

“The determination was in terms of the Theft/Fraud charge (Annexure 2 Section 5 (5.1.) of the NEC Code of Conduct (S.I.15/2006)”.

The determination letter concluded by stating the appellant’s rights that:

“Should you be aggrieved with this penalty you are free to appeal to the Chief Executive Officer within five (5) working days as provided in the Collective Bargaining Agreement for the Transport Operating Industry, S. I. 67 of 2012.”

When the appellant appealed internally he took issue with the citation of S.I. 15/06. The appeal authority stated that this was a typographical error and indicated that where “S.I. 15/06” appeared, it would be removed and replaced with “the determination was in terms of Theft/Fraud charge (Annexure 2 Section 5 (5.1.) of the NEC Code of Conduct S.I. 67/2012)”. After considering all the grounds, the appeal was thereafter dismissed.

The appellant was obviously not satisfied with the earlier appellate body’s decision. His first ground of appeal takes issue with the citation of S.I. 15/06. As shown above the appellate body explained its error and corrected it. After considering both the charge letter and the appeal results, I am satisfied that the lower tribunal satisfactorily answered that issue.

In oral and written submissions, counsel for the appellant strenuously argued that the employer cannot argue that the citing of S.I. 15/06 was a typographical error as nothing was done to rectify it. It is on record that the employer admitted the error and proceeded to correct the record. Further the surrounding circumstances show that the proceedings were done in terms of S.I. 167/2007. There is therefore no way it can be submitted that nothing was done to correct the erroneous citation of S.I. 15/06.

In the second ground, the appellant submitted that the charge Theft/Fraud charge is non-existent. However, this is how the charge is framed in applicable the code. It is important to observe that codes of conduct are drafted lay persons in a language that they understand. In the words of the Supreme Court in Claudious Murawo v Grain Marketing Board SC 27/09:

“I say so because, in general, Employment Codes of Conduct are not drafted with the same expertise and precision required for the drafting of statutes. Almost invariably Employment Codes of Conduct are drafted by laymen with little or no knowledge of law.”

This may therefore mean that some codes are inelegantly worded.

The hearing committee found the appellant guilty of theft according to the evidence led. While charging a person for theft/fraud maybe appear ambiguous, the findings of the committee was that the crime of theft had been proved against the appellant. The ambiguity was therefore clarified. I believe that in that regard the purpose of the Labour Act, that is to advance social justice at the workplace, was upheld. The purpose of Employment Codes is to ensure that simple justice is delivered between parties. This does not mean that the court condones any ambiguities which may be present in employment codes, for example a person being changed with “theft/fraud”. The court simply accepts that this is the position of the applicable code. It is necessary to interpret it in a manner which best serves the ends of justice. In the present case there was sufficient evidence which proved the offence of theft against the appellant. I believe that one cannot thereafter successfully argue that an unknown charge was preferred against the appellant.

Counsel for the appellant also adamantly strenuously argued that the appellant did not understand the charges which he was facing. The record shows that at the commencement of the disciplinary proceedings, he was asked whether he understood the charges which he was facing. The appellant confirmed that he did. There is therefore no way that it can be suggested that he did not understand the charges.

The appellant was charged as determined by his employer. This is the prerogative of the employer. There was wrong doing. The employer saw it fit to level the charges against the appellant. Dismissal was the penalty. The employer took a serious view of the appellant’s conduct and determined that the penalty of dismissal was appropriate (See Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60-03). An appeal court cannot interfere with the employer’s discretion to dismiss an employee. An employer “is not to be compelled to keep in his employment a person with whom the relationship has soured beyond reconciliation.” (Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)).

In the third ground of appeal, the appellant alleges inequality before the law. Here is a person who has violated the law and duly charged. Evidence was led. He was convicted. The law has simply taken its course. The fact however, that there may have been other employees who in the eyes of the appellant, violated the law does not absolve him (the appellant) from wrong doing.

In Lancashire Steel (Pvt) Ltd v Elijah Zvidzai and Others SC 29/95 the Supreme Court stated that:

“Argument may be addressed admisericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punitive act, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action… If they are guilty it is not in law relevant that others may also have been guilty.”(my underlining)

There was overwhelming evidence which was led against the appellant. It was almost impossible for him to have escaped ability. What this means is that as far as the offence he was facing was concerned, he was properly convicted. The ground regarding inequality before the law therefore has no merit.

In view of the overwhelming evidence against him, the ground that there was no evidence warranting conviction has no merit. That ground is dismissed.

As noted earlier, once an employer takes a serious view of the offence committed by an employee and penalizes that employee with dismissal, an appeal court cannot interfere. (Chipo Nyawasha, above). This means that the fifth ground of appeal has no merit.

In view of the foregoing, I find that there is no merit in all the grounds of appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Mapaya & Partners, Appellant’s Legal Practitioners

Chinawa & Law Chambers, Respondent’s Legal Practitioners