Linda Chakaponya v Palm Hospitality Group (Private) Limited t/a Ilala Lodge

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/242/24
HARARE 2024
CASE NO LC/H/35/24
LINDA CHAKAPONYA
APPLICANT
PALM HOSPITALITY GROUP (PRIVATE) LIMITED
RESPONDENT
T/A ILALA LODGE
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 2024

LINDA CHAKAPONYA

PALM HOSPITALITY GROUP (PRIVATE) LIMITED

T/A ILALA LODGE

Before the Honorable Hove, Judge:

For Applicant    S Mzondiwa

For Respondent    G Jakousi

HOVE, J:

This is an appeal against the whole decision of the respondent’s chief executive officer sitting as the internal appeals officer dated 15 December 2023. This appeal is opposed.

Background facts

The appellant was employed by Ilala Lodge (the respondent) as a guest relations officer sometime in 2022. In November 2023 the appellant allegedly received a sum of money from a senior employee that was meant for the tips box. The appellant was subsequently suspended from employment pending a disciplinary hearing which was then held on 28 November 2023. The disciplinary authority found the appellant guilty of corruption and the appellant was dismissed from employment on the 29th of November 2023. Dissatisfied with the decision of the disciplinary hearing, the appellant lodged an appeal with the chief executive officer of the respondent who upheld the decision of the disciplinary authority. The appellant was aggrieved by the decision of the chief executive officer and has lodged an appeal with this Court.

Preliminary Issues

The respondent stated that the appellant had cited a non-existent party as the respondent. The respondent has submitted that the appellant cited ‘Palm Hospitality Group’ as the respondent instead of citing ‘Palm Hospitality Group Private Limited.’ The Court has already decided this issue and granted the application to amend the citation.


Grounds of appeal

The appellant’s grounds of appeal are four, viz;

1. The Chief Executive Officer grossly misdirected himself in upholding the Disciplinary Committee’s finding that the offence of corruption as defied in Spencer Creek’s code of Conduct was proven on a balance of probabilities given that no specific finding was ever made on the essential elements of the offence.

2. The Chief Executive Officer erred in drawing an adverse inference against the appellant in upholding the Disciplinary Committee’s finding that the five United States Dollars (US $5) given to the appellant was part of the two hundred United States Dollars (us $200) tip money which was mishandled by the senior employee.

3. The Chief Executive Officer erred in not considering the gravity of fear and intimidation the senior employee had instilled in his subordinates at the workplace which fear made the appellant not to report any underhand activities by the said senior employee; and

4. The Chief Executive Officer erred in relying on the fact that the appellant’s failure to report any of the senior employee’s dealings made her complicit and an accomplice in the Commission of the alleged offence of corruption.

The law and Application

The case of Nyarumbu vs Sandvik Mining Construction Zimbabwe SC31-13 discussed the standard of proof in civil matters, the court held as follows:

‘As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases’.

In addition, in the case of Hama vs National Railways of Zimbabwe 1996 (1) ZLR the court held that:

‘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 findings 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 or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’

Summary of disciplinary hearing and analysis of evidence

The appellant confirms that the senior employee who was her senior manager had the culture of passing her money\(^1\). The appellant also stated that she did not want to be considered a snitch. The appellant also confirms that she had been observing these acts of corruption from her senior manager and decided to keep quiet. The appellant confirms that on this particular day the senior manager indeed handed her us $5 and she claims that she thought it was part of their typical daily sharing that is why she did not question when she was handed the money\(^2\). The appellant also submits that the money that her senior manager received on that day was tip money. The appellant also confirms more than once that she received money from her senior manager on several occasions but was afraid to speak out because of the intimidation from the senior manager. From my analysis, the evidence led sufficiently proves that the appellant committed the alleged offence which is corruption defined as a situation were an employee takes or offers bribe in order that either he or the person being bribed will be encouraged to do or refrain from doing anything for anyone in relation to his duties.’

The Court will consider the grounds of appeal ad seriatim.

Ground of appeal number 1

Whether or not the appeals officer grossly misdirected himself in upholding the disciplinary committee’s finding that the offence of corruption as defined in the code of conduct had been proved.

The respondent argued that the grounds of appeal attacks a finding of fact, that is, whether or not the appellant accepted money to prevent her from reporting her colleague. Findings of fact can be

\(^1\) Page 36 of the Record
\(^2\) Page 35 of the Record challenged on appeal if the findings are so grossly unreasonable that no sensible person who had applied their mind to the decision to be made could not have arrived at such a decision.

The appellant, in the first ground of appeal makes the allegation that the appeals officer grossly misdirected himself. A gross misdirection on the facts can amount to a point of law but while the allegation is made in the ground of appeal, nothing is stated in the appellant’s case to support the allegation that the factual finding made was indeed grossly unreasonable.

The applicant’s basis for alleging gross unreasonableness is that in terms of the relevant code, corruption is defined as;

“corruption is where an employee takes or offers a bribe in order that either he or the person being bribed will be encouraged to do or refrain from doing anything for anyone in relation to his duties”

It is alleged that this did not happen. The appellant did not receive the money to encourage her to refrain from anything. The allegation that the appellant was given money so that she could refrain from reporting her colleague’s unethical conduct was proved. The facts revealed that the appellant’s colleague took money that was meant to be put in the staff tip box and converted it to his own use but this was not before giving the appellant part of the money this was captured on CCTV. The money was clearly meant to buy her silence.

The standard of proof in civil proceedings such as labor matters is on a balance of probability inverse on the higher standard applicable in criminal cases. The courts have on numerous occasions explained the standard of proof thus;

“it is trite law that in general, in finding facts and making inferences in civil cases the court may go upon a mere preponderance of probability although in so doing does not exclude every reasonable doubt,” and

“In civil… one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones even though that conclusion be not the only reasonable one”

See in this regard the cases of Ebrahim v Pittman NO 1995 (1) ZLR (H) and Govan v Skidmore 1952 (1) SA 732.


The disciplinary authority chose a conclusion that seemed the more natural, the more plausible and the appeals officer upheld that decision there is nothing grossly unreasonable in the appeals officer’s decision. The facts on record show that the senior manager who converted the funds meant for the whole staff shared some of his loot with the appellant. Appellant did not protest or refuse the money she instead seeks to attack the decision to find her guilty on the grounds that she could not have reported the senior manager because, according to her, the senior manager exerted fear and was intimidating all his subordinates at the workplace. It is this fear and intimidation that made her not to report the theft. This is in actual fact an admission that she knew that the senior manager’s activities were illegal but she could not report because she was afraid and felt intimidated.

This cannot exonerate here from the wrongful act of participating in the senior manager’s unlawful acts. She in fact made herself an accomplice.

In grounds of appeal numbers 2,3 and 4 the appeal and does not deny that the senior employee was mishandling part of the tip money meant for all the workers she seeks to excuse her reprehensible conduct by saying that the senior manager intimidated her and all of his others subordinates and instilled fear in her and in others. This can never be a valid excuse for allowing the rot to go unchecked and worse still, to benefit from the corrupt act.

In grounds of appeal numbers 2, 3 and 4 to the appellant acknowledges that the senior employee was mishandling the funds. In ground of appeal number 3 the appellant accuses the appeals office of failing to excuse her participation in the corruption on account of the fear and intimidation that had been made to bear upon her and others. And in ground of appeal number 4 the appellant actually accuses the appeals officer of holding that her failure to report and her acceptance of the bribe money made her an accomplice.

The findings of fact by the appeals officer was the more natural, more plausible conclusion. The appellant thus failed to prove her allegations of gross mis-directions on the part of the appeals officer. The inference that she knew that the us $5 given her was part of the stolen money was a reasonable one and in the circumstances.

It is only in criminal cases that there is the requirement that before the court can rely on circumstantial evidence when convicting an accused person, such inferences sought to be drawn must be consistent with all the proven facts hence the appellant’s attempt to rely on criminal cases in Moyo v the state SC 65/13. This is not a requirement in civil cases.

There was evidence sufficient to find the appellant guilty which included;

1) the fact that the appellant admitted that a tip was paid in the sum of us $200
2) The evidence from the CCTV footage showing that the tip was not placed in the tip box as should have happened
3) The admission that she knew that the tip had not been placed in the tip box
4) The evidence from the CCTV footage showing her receiving part of the money
5) the CCTV footage showing that the money was paid in a manner that shows that the appellant was being given her share of the money or was being paid to see no evil.
6) the fact that the appellant just received the money without asking why she was being given the money, especially when applicant knew that the senior manager engaged in underhand activities.

I find that the evidence against the appellant was overwhelming, there was therefore no basis for the appeals officer to interfere with the decision of the disciplinary committee. I agree with the respondent’s submission expressed in the following quotation from the case of **Nickolas Van Hoogstraten v Tapiwa Nelomeve SC 4/20** which states that;

“this court has in a number of cases, followed the general rule on whether to interfere or not which was expresses in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 where the court said;

‘The general rule of law as regards irrationality is that an appellate court will not interfere with the 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 or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’”

**Disposition**


In the result, I find that the appeal is absolutely devoid of merit and must be dismissed.

**order**

1. The appeal be and is hereby dismissed.
2. Each party bears its own costs.
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