Lioyd Mosi v Ran Mines

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/166/2023
HARARE 6 JUNE 2023 16 JUNE 2023
CASE NO LC/H/109/23
LIOYD MOSI
APPELLANT
RAN MINES
RESPONDENT
Before the Honourable G. Musariri Judge:
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/166/2023

HARARE 6 JUNE 2023 16 JUNE 2023

CASE NO LC/H/109/23

LIOYD MOSI

APPELLANT

RAN MINES

RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant    Mr L.Pwanyiwa, Unionist

For Respondent    Mr D. Drury, Attorney

MUSARIRI, J:

Appellant worked for Respondent as an Acting Plant Operator. He was dismissed from employment for misconduct. He appealed to the employer’s appeals authority which turned down his appeal. He then appealed to this Court in terms of section 92D of the Labour Act Chapter 28:01. His grounds of appeal were initially three-fold.

In an interlocutory ruling this Court struck off the 1st and 2nd grounds of the appeal. The remaining ground reads as follows;

“3. The Tribunal a quo, did as the Disciplinary Committee, grossly misdirected itself on issues of fact that no reasonable person exercising their mind would arrive to such conclusion and this amounts to an error in law in that

3.1 A starting finding was made that Appellant committed gross incompetency or inefficiency in the performance of his work by failing to supervise his subordinates when it was common cause that there was no evidence of the alleged misconduct thus appellant was wrongly charged and convicted.

3.2 The preferred charge did not marry the circumstances of the matter if regard is had to the investigation report thus Appellant was wrongfully charged and convicted.”

It is common cause that appellant was on duty at the time of the alleged misconduct. He had 5 employees under his supervision including Samson and Honest. The critical evidence from minutes of the disciplinary hearing read thus,


“37 TM adopted his statement as a whole and narrated that in the early morning of the 23rd October I went to the plant access gate to take off my jacket and drink water, that’s when I saw Samson and Honest returning into the plant from outside and I said nothing to them.

44 LP states since Mosi was not fixed at one station during the shift, its possible that he was duped by his subordinates by them taking advantage this and sneaking around.

45 TM responded to this by saying that Mosi could see the people working at the ball mill as it is less than 30 meters from where he was stationed (CIL Tanks) and that Chanyuka Manungo who was working the CIL Tanks went to cover for the two who went out of the security fence at the ball mill leaving Mosi at the CIL Tanks.”

The Disciplinary Committee’s findings read thus,

“63. Accordingly, on a wholesome consideration of all the facts and circumstances in this matter, we find Mosi guilty of gross inefficiency as it was his duty to supervise his subordinates and that the two who went outside were well within his sight from where he was working from. Only carelessness and negligence of a great degree would have led to this. Further Moss was well aware that it was his contractual duty to be aware of the whereabouts of his subordinates. With all the resources available, surely Mosi could have seen that the subordinates in issue were not around. This smells of collusion. Nonetheless, that is not the charge in the present matter.”

The appeals authority dismissed the appeal in the following terms.

“22. The above findings (by the Disciplinary Committee), as mentioned are factual findings, which were made having regard to the candour of the witnesses and their demeanour. Indeed, in the ruling by the disciplinary committee, Tatenda Mariranyika, was found to be calm and collected. Her was also found to be honest and reliable.

23. In the premises, I cannot, for the mere asking arrive at a different finding so long as the finding is reasonable. I add that I did not have the benefit of seeing how Mr Mosi performed. On a consideration of this facts, I accordingly dismiss the substantive points raised on the basis that I did not find any error or unreasonableness in the findings made.”

Evidently both the disciplinary committee and the appeals authority were impressed by the evidence of Tatenda Mariranyika (TM). TM’s evidence raised the inference that appellant did not properly supervise his subordinates if at all. How else could the disappearance of 2 out of 5 subordinates go unnoticed. Nothing was shown or queried to discredit the veracity of TM. It is permissible for a tribunal to rely on the evidence of a single but credible witness as provided by section 52 of the Civil Evidence Act Chapter 28:01 which provides that
 “Subject to any other law, a court may make a finding and base its decision on the evidence of a single competent and credible witness.”


Furthermore, this Court can only interfere with factual findings of lower tribunals were irrationality or gross misdirection on the facts is shown. None such irrationality or misdirection was substantiated. Therefore, the appeal was misconceived and ought to be dismissed. I am fortified in this view by the remarks of the venerable Korsah JA in the matter of Hama v NRZ 1996(1) ZLR 664(s) at 670C

“The general rule of the 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 facts 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 accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at such a conclusion.”

In all the circumstances this Court concludes that the appeal ought to be dismissed.

Wherefore it is ordered that,

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E


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