Lloyd Masarirambi v C M E D (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/580/16
HELD AT HARARE 2 MARCH 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/580/16

HELD AT HARARE 2 MARCH 2016				CASE NO LC/H//197/15

& 23 SEPTEMBER 2016

In the matter between:

LLOYD MASARIRAMBI					Appellant

And

C M E D (PVT) LTD						Respondent

Before The Honourable Kudya, J

For Appellant			D Ngwerume (Legal Practitioner)

For Respondent		Miss N Mangidza (Legal Practitioner)

KUDYA J:

This is an appeal at the instance of the appellant employee against the decision of the respondent’s appeals body.  The facts giving rise to the matter are that the appellant was accused of breaching respondent code of conduct by receiving $5 parking fees for parking a bus at the designated car park yet he went on to pay an amount less than the $5 which he received.  He was brought before a disciplinary committee which reached a deadlock in respect of his guilt but was subsequently found guilty because of the chairperson’s casting vote.  He was consequently dismissed from employment.  He appealed internally without success until he came to the Labour Court on the appeal which is the subject matter of this judgment.

The basis of his appeal was set out as follows:

The Disciplinary Committee erred in its findings dismissing the appellant on the grounds that

The disciplinary committee ignored the appellant’s evidence to support the parking fee.

The principle of natural justice was not followed.  It was not fair for the appellant to be dismissed whereas other drivers with the same offence were reinstated.

The disciplinary committee erred in failing to consider that the BOH Panel investigated by phone and verified that parking fees were the ones appellant was given from CMED (Pvt) Ltd.

The disciplinary committee erred in not considering appellant’s contract of employment vis dismissal.

The disciplinary committee erred in not considering that a case of victimisation of members of the Workers Committee is apparent in the BOH which were of fabricated material.

The disciplinary committee erred in failing to consider that a policy document stating that parking fees were $5 for buses and that was produced after the BOH proceedings.

The disciplinary committed failed to consider that evidence brought against appellant is a mere quantum since the investigatory officer had promised to give business to the car park owners.

The disciplinary committee erred in failing to consider that the investigating officer was an interested party since he signed for the request of the parking fees.

In the result the appellant prayed for a reversal of the decision in the matter.  In

response to the appeal the respondent maintained that:

The disciplinary committee did not ignore the appellant’s evidence but carefully considered all the evidence that was before it before it came to a decision.

The principle of natural justice was followed as each case was considered on its own circumstances.

The disciplinary committee did not investigate over the phone but was merely seeking a clarification during the hearing.

The disciplinary committee did not err in not considering a matter of victimisation as this was not the matter they were seized with and it is not true that there was indeed victimisation of the appellant.

The disciplinary committee did not err as it used documents and evidence which were produced during the hearing to make a decision.

The allegation that the investigating officer had promised to give business to the car park is unsubstantiated.

The investigating officer was not an interested party but was within the scope of his duties.

It is settled law that the appellate court will not interfere with the exercise discretion

by a lower tribunal unless it can be demonstrated that such was exercised in circumstances which demonstrate gross misdirection.  See AG v Howman 1988 (2) ZLR 402 (S).

The law is categoric that it is not the duty of the appellate tribunal to substitute its discretion for that of the lower tribunal. See Nyahondo v Hokonya & Others 1997 (20 ZLR 45 (S).  In the light of the legal principles spelt out above it is clear that the court’s duty in the instant case is to find out from all the facts of the matter at hand and the attendant appeal grounds whether they indeed show gross misdirection on the facts of abuse of discretion by the lower tribunal on the matter.  Each of the appeal grounds is discussed below.

Ground 1

The test for the standard of proof in case of the instant nature is proof on a balance of probabilities.  See Zesa v Dera 1998 (1) ZLR 500.  In that light the question to be answered here is whether the evidential assessment made by the panel passes that test.  The main argument advanced by the applicant is that his version and that of the respondent’s first 2 witnesses tallied on that parking fees was said to be $5 hence to that end the $5 he got was commensurate with what he paid.

The counter evidence from Simbi said that fees was $3 and also there was no recorded evidence of what exactly was paid.  It consequently remained the appellant’s word against that of the parking owner who said fees was $3.  Whether it is a fact or not that the $3 evidence was birthed by a desire to attract business cannot be found by this court as it remained a bald assertion.

What was however quite apparent was that there was something remiss about the fees which gave rise to the charges.  To that extent the court finds no reason why the informant on the matter would have wanted to falsely implicate the appellant.  As for the fellow driver whose evidence was said to tally with the $5 version it would not be stretching one’s imagination too far to glean that his was coloured evidence as he had an interest to protect by siding with the appellant’s version.

The court is alive to the fact that scales tippedagainst the appellant due to the limited standard of proof there is nothing gross in the suggestion of his guilt.  To that end the court has no cogent basis to interfere on account of this ground of appeal.  It should therefore fail.

Ground 2

The law is clear that it is no excuse to argue that colleagues were acting irregularly to found one’s innocence.  Each case is dealt with on its own merits.  The reality of the case  at hand is that it was the appellant who was on trial and not his alleged colleagues so such a defence could not avail him.  It would be remiss to hold that he did not receive a fair hearing on the basis of this ground.  The court is not persuaded that the appellant has a good case on the basis of this ground.  The ground should thus fail.

Ground 3

The issue that procedurally the committee erred by phoning during the hearing is

not an appeal issue but a review one.  Technically the ground is flawed to that extent.  If the court were to accept the ground as it is still there is no demonstrable prejudice from that flow.  See Nyahuma v Barclays SC-86-04.  In that respect the argument cannot avail the appellant.  The ground is therefore without merit and should fail.

Ground 4

This terse ground does not mean much but it seems that appellant’s argument is that he was not employed as a driver so could not be charged as one.  The record is however replete with evidence that therefore nothing remiss in charging him within that sphere.  The ground is meritless and should fail.

Ground 5

The arguments about victimisation and bias are properly answered by the case Bailey professions quoted by respondent.  It is apparent that the argument advanced is not backed by evidence and it should therefore fail.  The ground being without merit should consequently fail.

Ground 6

This ground speaks to the same argument as the one raised in ground one.  What was said in ground one applies to this ground with equal force.  It should also fail.

Ground 7

This ground is inextricably linked to ground one and ground six.  It should fail for the same reasoning made in grounds one and six.

Ground 8

The bias argument was addressed in ground 5 above and deserves no restatement.  The ground should of necessity fail.

In the ultimate it is clear that the appeal is without merit in its entirety and should fail.

IT IS ORDERED THAT

The appeal being without merit in its entirety it be and is hereby dismissed.

Each party bears own costs.

Nyandoro & Mukwewa Legal Practitioners, appellant’s legal practitioners

TK Hove & Partners, respondent’s legal practitioners