Martin Matenhere v Cornway College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/74/2023
HARARE 27 FEBRUARY 2023
9 MARCH 2023
CASE NO LC/H/949/22
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/74/2023

HARARE 27 FEBRUARY 2023&                                    CASE NO LC/H/ 949/22

9 MARCH 2023

MARTIN MATENHERE					APPELLANT

CORNWAY COLLEGE					RESPONDENT

Before the Honourable G. Musariri Judge:

For  Appellant		Ms Mahlangu, Attorney

For Respondent	Mr Marange, Attorney

MUSARIRI, J:

On the 16th September 2022, respondent’s disciplinary authority dismissed appellant from employment for misconduct. Appellant then appealed to this Court in terms of section 92 D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were four-field. They basically challenge the ruling on a preliminary point, sufficiency of the evidence led and the appropriateness of the penalty. I shall deal with the three issues in turn.

Preliminary ruling:

Before the disciplinary authority, appellant raised the point that the proceedings were pre-determined and had become moot. This was largely based on the recruitment of a new headmaster. The disciplinary authority ruled as follows,

“It is common cause that respondent was suspended without pay and benefits and the school has to continue to function even in his absence and that cannot be taken to mean that the hearing is academic or predetermined since the evidence that will be led during the hearing will also be assessed and a determination on the merits of the matter be made based on whether the complainant has managed to prove its case on balance of probabilities and whether respondent has also managed to prove his innocence. It will be improper in the circumstances to pre empt the merits before evidence has been led.

The authority rightly indicated that her ruling would be based on the evidence adduced. The appointment of a new headmaster by itself is not evidence of predetermination.  The insinuation that the matter was predetermined was properly discounted.

Evidence

The main finding by the disciplinary authority went as follows,

“It is my finding that respondent as the headmaster and administrator of school allowed a student to attend classes without informing the responsible authority. From the evidence adduced, it is common cause that a meeting was held at the school being an opening staff meeting. The respondent addressed the teachers that there was a student called Anotichengeta Honde who had attended vacation lessons and was going to continue coming and teachers were free to assist her. The idea of being told that they were free to assist meant that there was nothing to be afraid of since she not part of the school officially. It is also common cause that the said student was at one time entered into a class register. The reason why she was entered into the class register is because she was present in class. No teacher would enter into a class register student who is not present. The issue of the class register was never disputed”.

The authority also noted the evidence of Mrs Mukoni (teacher) that she taught the student (Honde) in one of her English classes. Her evidence is recorded in the minutes. An excerpt shows,

“ Mrs Mukoni: Anotida started attending lessons at Cornway College during vacation, thereafter we were given an instruction by the headmaster on the opening day that we should proceed assisting her from the instruction as I proceed to the class I found her in class and just taught her, in respect of the instruction from above ………………….

Ms Mahlangu: I put it to witness that it is actually you who fabricated the issue. It is evidenced even where you made the report. It cannot be coincidence you have a relative who goes home to the responsible authority then boom there is that allegation. What is your comment?  I say it is you who actually fabricated.

Mrs Mukoni: No I never fabricated”.

Just why Mukoni would fabricate allegations against appellant was never shown. The fact that she was related to the responsible authority (Mr Kurotwi) cannot as a matter of logic prove the alleged fabrication. No proper motive was shown for the “fabrication”. The clear and consistent testimony of Mukoni was that she taught Honde in her class after being told to assist her by appellant. Honde was not enrolled as a student at the college. Appellant had no business

facilitating her attendance in class for free without the consent of the responsible authority. The attack against Kurotwi’s evidence was misdirected. The critical evidence was that of Mukoni who was corroborated by Kurotwi. Further and in any event it was permissible to convict appellant on the uncorroborated evidence of a single but credible witness as provide by section 53 of the Civil Evidence Act, [Chapter 8:01] 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”.

Penalty

The 4th ground of appeal declaimed thus,

The Hearing Authority erred and seriously misdirected itself at law in imposing an unreasonably harsh penalty of dismissal from employment in the circumstances without considering a penalty that presents a corrective measure”.

The gravity if the offense in casu is underscored by the evidence of Kurotwi,

“Dr Kurotwi: yaa  it is the responsibility of the headmaster because, he the headmaster was a nonteaching head. This was actually part of his responsibility to make sure that each and every student who is enrolled at the school pay tuition fees. And even if you go to his contract clause number 7 ‘do all the necessary administration work in order to ensure smooth running of the school: Also if we go to clause number 6 again I say that ‘ensure that all other resources required to note the objectives of the responsibility are in place. You do this in liaison with the responsible authority --------”

A resource critical to ensure the smooth running of the college are the school fees. Instead of securing fees due to his employer, appellant played Father Christmas by offering free tuition. It was not his place to give charity at the expense of his employer. The employer took a serious view of the misconduct and imposed the penalty of dismissal. That was well within the employer’s discretion.

See MTC v Mutangadura 2012(1) ZLR 183 S at 186 B where ZIYAMBI JA stated

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appellate court, will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of contract of employment.”

Conclusion

Appellant’s case fell short on all the issues raised by his grounds of appeal. In the result the

appeal ought to be dismissed as devoid of merit.

WHEREFORE IT IS ORDERED THAT,

The appeal be and is hereby dismissed, and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E