Judgment record
M. Zodziwa v Redwing Mine
[2013] ZWLC 18LC/MC/18/20132013
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INTHE LABOUR COURT OF ZIMBABWE JUDGEMENT NO. LC/MC/18/2013
HELD AT MUTARE ON 28 MAY 2013 CASE NO: LC/MC/37/11
In the matter between
M. ZODZIWA APPELLANT
And
REDWING MINE RESPONDENT
Before Honourable Kudya, L President
For Appellant - In Person
For Respondent - Mr M. Maunga (Legal Practitioner)
KUDYA, L
This is an appeal against the decision of the Respondent to dismiss the
Appellant on allegations of contravening the Respondent Code of conduct SI 165 or
1995 Part B Section 4 (a) (iv) Misappropriation; applying or attempting to apply to a wrong use for
unauthorized purpose any funds, assets or property belonging to the company ;
and
4 (a) (i) bribery or corruption; giving or receiving or attempting to give or receive any bribe of inducing, or
attempting to induce any person to perform any corrupt act;
and
4 (a) (ii) false evidence, deliberately giving untrue, erroneous or misleading information or testimony
whether verbally or in writing.
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The facts are that, Appellant who was in the employ of the Respondent was
arrested by one Sergeant Kisi at a mill sump which was said to be a restricted area.
This allegedly happened or a day when power had gone off and all the employees
had left
JUDGEMENT NO. LC/MC/18/2013
their workstations as was required by the Respondent’s orders that, upon power
failure employees had to leave their workstations for security reasons.
It was further alleged that, at the time of arrest of the Appellant, he had been
seen with a bucket in the mill sump area and when the bucket was subsequently
retrieved after the mill had been started it was discovered that it contained ore in it.
Appellant’s explanation was that he had taken the bucket to the mill sump to fill in a
certain chemical for use at his workstation which was close to the mill sump.
After the arrest, the Appellant is said to have attempted to bribe Kisi with cash
when he took out his wallet and phone during the arrest. Appellant agrees that he
took out the wallet but he states that it was not for bribing Kisi but only as a
measure to show that there was no such bribe money equivalent to what is claimed
that he wanted to use for the bribery.
He was also said to have lied to the arresting detail that he was only sitting
trying to fix the bucket pending use yet in truth and in fact he wanted to use it to
access the ore in question from the mill sump.
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He was brought before a Disciplinary Hearing Committee which found him
guilty and dismissed him from employment. Aggrieved by the decision he utilized
all the internal appeal structures. All the appeal structures were convinced that he
did not have a good case for appeal and they consequently threw it out. It is the
confirmation of his dismissal by the appeal bodies which he has appealed against in
this court.
JUDGEMENT NO. LC/MC/18/2013
The grounds of appeal are as follows:-
1. Appellant was not given adequate time to present his case as he was given short
notice to attend the hearing hence he attended the hearing ill prepared.
2. The alleged scene of the offence was not out of bounds for Appellant but one
within the precincts of where he was supposed to conduct his duty from.
3. Appellant was improperly accused of bribery and the hearing authorities relied on
biased evidence from the witnesses who were called to testify in his case.
4. The dismissal penalty was too harsh in the circumstances taking into account the
fact that he had been in Respondent’s employ for about 9 years at the time of the
allegations and the imposition of the penalty.
On the other hand, the Respondent maintained that the appeal had no merit for the
following reasons:-
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If the record of the proceedings or the Disciplinary Committee is anything to
go by, it is clear that Appellant’s guilt was proven by the evidence of the witnesses
who testified against him hence there was overwhelming evidence to find him
guilty. In particular the Respondent wanted the court to note that Appellant had
been at the restricted area contrary to the standing position that following a power
cut all employees have to leave their workstations for security reasons.
He could not have been working at the mill sump since it had stopped
working then. Further to that he was seen with a bucket which was later thrown
into the sump and upon its retrieval it contained gold ore. Whilst Appellant claims
that he was forced by Kisi to throw the bucket into the sump he proffered no good
explanation why that would have been done yet it was clear that bucket could be
damaged upon the resumption of the mill sump.
JUDGEMENT NO. LC/MC/18/2013
Appellant was aware of the standing instruction of vacating the mill upon a
power cut and even if he argues that he was doing his job how could he do that
without telling his supervisor. The bribery allegations were proven as evidence was
led directly from the person who he wanted to bribe. The dismissal penalty was
appropriate in the circumstances.The Respondent therefore prayed that the appeal
be dismissed with costs as it lacked merit.
The law governing appeals of this nature is set out on the case of Nyahondo vs
Hokonya and others 1997(2) ZLR 475 (SC) It is clear from this case that the appeal
court can only interfere with the exercise of the discretion by the tribunal below it if
it shows that the exercise of such was unreasonable as to be construed to be
malicious or biased.
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Further to that the test to be applied on the procedural irregularities raised by
the Appellant is whether they go to the root of the case and whether the Appellant
was indeed prejudiced by them. The cases of Tichawana Nyahuma vs Barclys
Bank Private Limited SC 67/05 is instructive in this respect.
It is clear from a reading of the grounds of appeal that the Appellant has
mixed both review and appeal grounds in the same case even though the Labour
Court rules provide for the 2 as separate procedures. No issue was taken by
Respondent on that and also given the fact that the Appellant is a self-actor who is
not well versed with legal niceties the court was prepared to condone the mix up.
From the facts of the case already outlined it is clear that there are very few
facts on which both the Appellant and the Respondent are agreeing. In essence it is
those
JUDGEMENT NO. LC/MC/18/2013
parts of disagreement which the Appellant relies heavily on as making out the basis
of his appeal.
Firstly there is the issue about the power cut. The Appellant maintained in his
oral submissions that the power cut was not within the area where the offence
allegedly took place. Respondent maintains that it was, and submits that, that is why
the mill sump was not working. It is important to note on this point that the
Appellant concedes that the mill sump was not working hence the damage which
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almost occurred to the bucket when the mill was started with the bucket in. This
piece of evidence makes the version of the Respondent more probable than that of
the Appellant hence the court finds as a fact that there was no power on the date
and time in question.
The Appellant argues that he was within his area of operation whilst
Respondent says he was not. He however does not dispute that it is a standing
instruction of Respondent that when power is off all employees have to vacate their
areas of operation. In view of the acceptance of the fact that there was no power it
is therefore clear that if Appellant remained within the area whether close to the mill
or his area of operation that does not absolve him from having failed to abide by the
instruction of vacating the workstation. That therefore makes his stay of working on
his own to fill chemicals without supervisor’s authority more improbable than the
version given by the Respondent’s witnesses. The court therefore also finds as a fact
that the version given by the Respondent on this fact seems to resonate with the
truth.
On the bribery issue, Appellant says he took out the wallet to show the
arresting details that it was not possible that he could have wanted to bribe Kisi with
$20 as there was no such money in the wallet. Kisi on the other hand gave evidence
before the committee that Appellant wanted to bribe him. The decision as to who
between the 2 told the truth was made based on how the witnesses’ testimonies
persuaded the hearing
JUDGEMENT NO. LC/MC/18/2013
authority. It appears from the record that Kisi’s evidence was taken holistically with
the evidence of the other witnesses and statements which confirmed the Appellant’s
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guilt. To that end the court has no legal basis to find fault with the Disciplinary
Committee’s finding on this fact.
During the course of the oral submissions Appellant also took issue with the
fact that he was not given the record of proceedings of the Disciplinary Committee
when he requested the same. He maintained that, when he asked about it he was
denied the same and told that he would get it from the Labour offices. The court
notes that if that is what the Respondent did, it was irregular as the Appellant had a
right to see the record in question and also to sign the minutes of the hearing as an
affirmation of the fact that what was recorded is what had transpired during the
proceedings.
He therefore cannot be faulted for having failed to challenge the minutes if he
genuinely laboured under the view that same would be with the labour offices as he
had been told. However, whilst the court accepts that the non-availability of the
minutes to the Appellant was irregular the question to be asked by the court is what
effect does that have on the totality of the issues at stake on the matter.
As already pointed out it is not all irregularities which vitiate proceedings. In
the instant case it is clear that the minutes basically contained the testimonies of the
witnesses which are in sync with the statements of same filed of record. Appellant
himself confesses that his guilt was based on the witnesses’ statements hence the
court is not persuaded that Appellant suffered any prejudice by failing to access the
record timeously. This is so because, he is adamant that what all the witnesses told
the hearing panel were creations calculated to let him lose his job. It therefore
becomes a non-issue whether the minutes got to him early or not.
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JUDGEMENT NO. LC/MC/18/2013
The only critical question which has to be answered is why would all the
witnesses team up to create these allegations against him. It is clear that at the
outset, even during his oral submission Appellant never told the court why that
would be so. It is only when the court had allowed him a chance to delve further
and deal with his argument about the citation of the charges that he came up with
the story that he understood that the workers had been told that if they caused his
arrest whoever did that would be rewarded.
He said the animosity was brewed by the fact that he owned a car and the
question was where he was getting his money from, to afford such a life style. The
court finds this as such a far-fetched excused as to be an incredible one. It therefore
stands to reason that, the Appellant has no good and cogent reason why all the
witnesses would team up to lie about what he did not do. The court is convinced
that Appellant is just clutching at straws when it is amply clear that he was found at
fault and resultantly dismissed from employment.
Appellant also took issue with the citations of the charges and the dismissal
sections. It was however apparent that there was no anomaly in this respect as the
sections for the charges remained clearly distinct from the penal provisions. The
court was therefore satisfied that nothing turned on this aspect of bias and harsh
proceedings.
Appellant maintained that, it took about a month for the Respondent to
gather evidence on the matter hence it’s clear that all that while Respondent was
8
busy creating evidence to dismiss him. As has already been pointed out above, the
reason proffered for the false incrimination is ridiculous hence the court does not
find the period of 1 month to be outrageous as to vitiate the proceedings.
JUDGEMENT NO. LC/MC/18/2013
The court is not persuaded that it has any legal basis to upset the findings of
fact of the tribunals below as all the decisions made therein were based on
evidence which was tendered and accepted as the truth of what had transpired.
There is no evidence of unreasonableness or irrationality in the handling of the
evidence by the tribunals below. The court is therefore satisfied that there is no
merit in upholding the appeal on the merits or on all the grounds in relation to the
Appellant’s conviction.
As regards the penalty, Respondent’s counsel correctly cited the cases of
James Kadoma vs Shades of Black Cosmetics SC 115/04 and that of Standard
Chartered Bank vs Chapuka 2005( 1) ZLR 52 These cases set out clearly that
where there fabric of trust between the worker and the employer has been broken it
would not be irregular for the employer to dismiss the employee.
In the instant case it is clear that the charges which the Appellant was found
guilty of went to the root of the employment relationship. The court therefore finds
nothing amiss about the dismissal notwithstanding the period which the Appellant
had served the company. The court is satisfied that the appeal is not merited on this
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ground as well. In view of the Appellant’s self-actor status no order of costs would
be granted.
It is therefore ordered as follows:
1) That the appeal lacking in merit on all the grounds be and is hereby
dismissed.
2) No order as to costs.
L. KUDYA (MRS) -----------------------
PRESIDENT- LABOUR COURT
Maunga, Maanda and Associates-Respondent’s Legal Practitioners
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