Manasi Masaopatali v Irvines Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 17 MARCH, 2023 AND 16 JUNE, 2023
JUDGMENT NO. LC/H/168/23 CASE NO. LC/H/19/23
In the matter between:-
Manasi Masaopatali
Appellant
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==============================IN THE LABOUR COURT OF
ZIMBABWE HARARE, 17 MARCH,
2023 AND 16 JUNE, 2023

Judgment no.
LC/H/168/23 CASE NO.
LC/H/19/23

In the matter between:-

Manasi Masaopatali
Appellant

Versus

Irvines Zimbabwe (Pvt) Ltd
Respondent

Before The Honourable L. Hove, Judge:

For Appellant : Mr. ET. Moyo
For Respondent : Mr. R.Matsika

HOVE J:

This appeal is against the whole decision of the disciplinary hearing authority of the respondent handed down on 3 March 2022.

Background facts

The appellant was employed by the respondent as its transport and logistics coordinator. The appellant faced allegations of misconduct he was found guilty and dismissed from employment.

The allegations were that on 19 January 2022, two police officers wanted to affect an arrest on the appellant. This was at respondent’s premises, a scuffle ensued between the two police officers and the appellant. The police appear to have struggled to affect the arrest and the appellant’s shirt was left unbuttoned. The employer alleged further that the appellant was involved in the transportation of timber and the employer was of the opinion that the appellant had breached the respondent’s conflict of interest policy.


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The appellant was suspended from work. While he was on suspension, he is alleged to have sent an email to his colleagues misrepresenting the facts of his absence and he was also alleged to have breached the terms of his suspension when he visited the respondent’s premises while on suspension.

The appellant denied the charges. The tribunal a quo found him guilty and dismissed him. He noted an appeal to this court. His grounds of appeal are three and these will be considered ad seriatim.

**Ground of appeal number one**

The respondent challenged the first ground of appeal by raising a preliminary point to the following effect:

It was submitted that in terms of the rule 19(1) (a) of the Labour Court rules, a notice of appeal should be in form LC4 and in terms of that prescribed form, grounds, of appeal must be concise and precise.

It was argued that the first ground was not concise.

The respondent argued more specifically that the appellant failed to cast his complaint with sufficient clarity to enable the court and the respondent to understand the exact nature of the complaint. The ground lacked clarity and specificity. It was argued that the ground was thus invalid.

The ground reads s follows;

**‘The disciplinary hearing authority erred and misdirected herself in finding that the lapse of the time frame prescribed for holding the hearing was not material to continuation of the proceedings on the notice given’**

A reading of the challenged ground does show that the ground lacks sufficient clarity to allow for a clear understanding of the complaint.

Is in the case of **Songono vs minister of law and order 1996 (4) SA 384** the court stated that,

*“The purpose of grounds of appeal is to cast the complaints of the appellant in such a manner that the respondent and the court faced with the appeal know what the complaint is”*


The 1st ground of appeal’s meaning should be apparent and what is challenged must be clear. It should not be necessary to resort to heads of arguments to be
 able to understand what exactly is being challenged. It is not clear what the ‘time frame’ is relating to and how it was material. It is also not clear what the words ‘notice given’ are referring to. The ground of appeal is not specific in details of the exact nature of the complaint. The case of **Zvokusekwa v Bikita Rural District Council SC 44/15** was not in any way suggesting that grounds of appeal should not be clear. It was not addressing the issue of whether or not the grounds should be precise and concise. It does not assist the appellant’s case in any way.

There is therefore merit in the preliminary objection.

**Ground of appeal number 2**

The ground reads as follows;

“The disciplinary authority grossly erred and misdirected herself in arriving at a guilty verdict as follows;

2.1 In finding contrary to evidence of witnesses before her that the appellant resisted arrest.

2.2 In concluding in any event that the arrest of the appellant was in itself conduct inconsistent with his express or implied conditions of employment change of improvement.

2.3 In finding that there was conflict of interest established in the circumstances of the matter either at all or such as may have given rise to a duty to disclose the terms of the respondent’s conflict of interest policy; and

2.4 In any event by applying the conflict of interest too widely in the circumstances as to render it unreasonable and contrary public policy.

2.5 In finding that there was anything inconsistent with the appellant's express or implied conditions of service in the email he sent to his colleagues on 20 January 2022.

**Analysis of ground number 2**

This ground of appeal is an attack against the findings of facts made by the authority.
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 An appellate court cannot readily interfere with findings of facts made by a lower court or tribunal unless the findings complained of are grossly unreasonable.

This principle of law has been stated in several Supreme Court decisions. In the case of Hama V national railways of Zimbabwe (1) ZLR 664 (S) The court stated as follows;

“The general rule of law as regard irrationality, is that the appellate court will not interfere with a 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 and accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.”

In a more recent case of **Fraser Muyaka V Bak logistics (pvt) Ltd SC 39/2017** the court stated that

“Findings of fact in any proceedings, except where an appeal is heard in the wide sense (rehearing), are made by the initial disciplinary authority, tribunal or court of first instance. They can, except in the case of an appeal in the wide sense, only be made once by such disciplinary authority tribunal or court. In this case, they were made by the initial disciplinary authority…. On appeal the task was not to make findings of fact but to assess the findings of facts made against the standard of gross unreasonableness in circumstances they were made.”

In this case, the 2nd ground of appeal attacks findings of fact without alleging that such findings were grossly reasonable and neither has gross reasonableness been demonstrated in the appellant’s case.

The manner in which the appellant has argued his case in relation to ground of appeal number 2 is as if he wants this court to make findings of facts which can only be made by the tribunal which heard the matter first. This cannot be done on appeal where the court cannot interfere with factual findings unless it is alleged or demonstrated that the findings made were grossly irrational.


The appellant correctly states that the scale of which the burden is discharged in civil matters is that of a balance of probabilities. In criminal cases the burden is higher. See the case of **Astra Industries Limited v Peter Chamburuka SC**


27/12. It is trite law that in general, in finding facts and inferences in a civil case, the tribunal could go upon a mere preponderance of probability, even though in so doing it may not exclude every reasonable doubt.

This is not so in criminal cases where the standard of proof is higher. In such cases every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond a reasonable doubt and inferences from facts must, in order to be permissible, be such as to leave no reasonable doubt of their propriety and corrections.

In casu, the disciplinary authority could by balancing probabilities select a conclusion which seems to be the more natural or plausible amongst several conceivable ones even though that conclusion be not the only reasonable one.

See Ebrahim v Pittman NO 1995 (1) ZLR H 184-185 and Govan v Skidmore 1952 (1) SA 732.

Whether or not Appellant resisted arrest.

The witnesses who gave evidence confirmed that there was a scuffle at the end of which the appellant’s shirt was unbuttoned. The appellant himself States that he was manhandled and bundled into the police vehicle. He confirms the scuffle by saying that he could not have remained calm. The question that an appellate court should ask is whether the decision that the appellant resisted arrest was grossly and unreasonable. The answer in my opinion is in the negative. The police had to use force to affect the arrest. The disciplinary authority cannot therefore be said to have taken leave of its senses in arriving at its factual finding of fact. The disciplinary authority decided this issue on a balance of probabilities.

2.3 And 2.4

Whether or not there was conflict of interest established and whether the term was widely applied.

The appellant was employed as a transport and logistics manager. He involved himself in his brother's transportation business to the extent that he identified and engaged a driver for the brother’s transport business. He was consulted by the driver when a load was to be ferried from Mutare to Harare, acting as the intermediary between the driver and his brother in connection with the terms of ferrying the load to Harare, acting as the driver's contact person when the vehicle was impounded and in taking steps, on his brothers behalf, to establish what had caused the truck to be impounded.

The evidence showed that the appellant's involvement in the brothers’ transport business was such that the driver and the client formed the view that appellant was the owner of the truck. The disciplinary authority found under such circumstances that the appellant actively participated in his brother's transport business. It is on the basis of facts that the disciplinary authority found that there was potential conflict of interest.

The appellant being the respondent's employee had a duty to act in the best interest of his employer and should not have placed himself in situations which would create a potential conflict of interest. The facts showed that he was practically managing his employer's transport affairs and at the same time effectively availing himself for his brother's business which also dealt with the transport business.

Under those circumstances, can it be said that the disciplinary committee overstrained the concept of conflict of interest and that the disciplinary authority made findings which no reasonable authority which had applied its mind to the decision to be made, could have made. I do not believe that the factual findings can be categorised as grossly unreasonable. In in the case of **Zimbabwe mining and smelting co. V Zakeyo, 2007 (1) ZLR 132** the court found as follows;

“... The general rule, the breach of which founded the ground of misconduct with which respondent was charged, is that any person who is in a relationship wherein there is a duty to act in the best interest of the other party is not allowed to put himself in a position where personal interests conflicts, or might conflict, with the interest of one whom he is bound to protect...

The duty to disclose does not depend upon proof of existence of the actual existence of conflict of duty and self interest only. It is sufficient for the purpose of this rule that there be a potential conflict of duty and self interest arising from the engagement entered into or about to be entered into.
 It follows that the application of the rule is not confined to situations where actual or potential conflict of interest is by reason of and during the actual execution or discharge of duty by the employee. The rule has its roots in the general standards of loyalty, good faith and avoidance of conflict of duty and self interest.”

Under these circumstances it cannot be said that the disciplinary authority came to factual conclusions which were grossly unreasonable.

2.5 Did the appellant break any express or implied condition of service in sending the email that he sent to his colleagues on 20 January 2022.

The disciplinary authority found that there was a material misrepresentation in the said email. The appellant stated that he would be away from duty between 20 January and 5 February 2022. This he said when he well knew that he had been suspended. The letter gave the impression that he was away from duty for reasons other than his suspension. The finding made on these facts was that the email contained a deliberated falsehood. He deliberately gave misleading information. He was dishonest.

Again, on the assessment of the factual conclusions, it cannot be said that they were grossly irrational. There is thus no merit in the ground of appeal raised under ground 2.5.

**Ground of appeal number three**

Did the acts of misconduct go to the root of the contract of employment?

The allegations of conflict of interest and conduct inconsistent with one's contract of employment is conduct which goes to the root of the contract of employment. The employer's trust in the appellant was destroyed. The record shows that the employer took a serious view of the acts of misconduct. That being said, the law is clear that an employer can dismiss for acts of misconduct that the employer takes a serious view of. Once the employer forms this impression the onus will now rest on the appellant to show that the misconduct was so trivial and so inadvertent so aberrant or otherwise excusable that the remedy of dismissal was not warranted.

The appellant argued that the events had not occurred at the workplace, that his brother’s truck was not engaged in the employer's business that there was no betrayal of trust but merely relate to a difference in views.


These arguments do not show that the misconduct was so trivial, so aberrant, so inconsequential to make the decision to dismiss him an improper exercise of discretion. Where the employer forms the view that the act of misconduct is serious and that it goes to the root of his contract of employment the employer is well within its rights to dismiss.

The law on sentence is firmly established. See the case of **Toyota Zimbabwe v Post SC 55/07, Zimbabwe Platinum Mines (Pvt) Ltd v Godice SC 2/16. And ZB Financial Holdings v Manyarara SC 2/12**

In the final analysis, I find no merit in the appeal and make the following order;

**Order:**

1. The appeal is dismissed
2. Each party will bear its own costs.
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