Mejury Chigombe v Great Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/MS/20/2013
HELD AT HARARE ON 20 NOVEMBER, 2013
CASE NO.
JUDGMENT NO. LC/MS/20/2013
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/MS/20/2013

HELD AT HARARE ON 20 NOVEMBER, 2013	   	CASE NO. LC/MS/02/2011

AND 6 DECEMBER, 2013

In the matter between:-

MEJURY CHIGOMBE					-	Appellant

And

GREAT ZIMBABWE					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	In Person

For Respondent 	-	Ms W.L. Chirongoma (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an appeal against an arbitral award handed down on 21st December, 2010 which award confirmed the appellant’s dismissal from employment as being substantively fair.  After listening to arguments by both parties and upon perusal of the record the court on 22 November 2013 handed down an order to the following effect;

The appeal be and is hereby dismissed with no order as to costs.

The arbitral award handed down on 21 October, 2010 be and is hereby confirmed.

I indicated then that the reasons will be captured in the main judgment which would follow.  The following constitutes reasons for the judgment.

The background facts to the matter are as follows;

The Appellant was employed by the Respondent as a Secretary to the Bursar.  Her core duties were that of answering telephone, keeping the bursar’s diary and helping.  Appellant was suspended from employment on allegations that she had committed two acts of misconduct.

Breach of Section 4(a) of the National Code of Conduct (Statutory Instrument 15 of 2006) i.e. Any act or conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her conduct.

Theft or fraud.

The allegations were that on February 23, 2009 an Accounts Clerk Mrs Mundoko received US$545 and 274 Rands.  At about 1645hrs she came to Appellant’s office looking for Acting Bursar in order to deposit the money in a safe.  Upon being advised that the Acting Bursar had gone home the Accounts Clerk and Secretary agreed to place the money in bottom drawer of the desk inside the Bursar’s Office.  The three i.e. the Appellant, the Accounts Clerk and the Chief Accounts Clerk then left after locking the door.  The Appellant however returned shortly with the Chief Accounts Clerk Mrs Muza to collect an umbrella left by Mrs Muza in her office adjoining the Appellant’s office.  Mrs Mundoko was left behind in the car park.

The Appellant was the first person to enter the office the next day i.e. 24 February 2009.  She was then followed by four other persons including Mrs Mundoko and Mrs Muza.  Appellant at same point checked for the money and found the money missing.  The Respondent initially had five suspects with Appellant being the Chief suspect.  The matter was reported to the police.  Charges were withdrawn against the others with the Appellant only remaining to face the criminal charges.  Appellant was acquitted on the criminal charges.  She was however arraigned before a Disciplinary Hearing authority on 6th July 2009.  The charges she was facing were (i) theft and (ii) failure to discharge duty.

The Appellant was found guilty on both charges and a penalty of dismissal was consequently imposed on her with effect from 18 August, 2009.  The Appellant referred the matter for conciliation and when that failed compulsory arbitration.  The Arbitrator in his award confirmed the Appellant’s dismissal as being substantively fair.  Aggrieved the Appellant noted now the present appeal.  The Appellant has not drawn up proper grounds of appeal.  She has in the form of a Founding Affidavit set out, in narrative form her misgivings with the award.

The grounds of appeal can however be deciphered to be as follows;

The Arbitrator grossly erred in reaching his conclusion as his award does not capture the complete evidence and arguments presented before him.

The Arbitrator erred at law by awarding 3 months in damages for perceived procedural irregularities.

The Arbitrator erred in his conclusion that Respondent established the second charge considering that her duties did not include safe keeping of cash.

The Arbitrator erred at law by not weighing properly the probabilities and concluding the Appellant was the only probable suspect.

The Appellant was initially represented by a Representative from the Trade Union when she filed this appeal.  The Representative however failed to turn up resulting in the Appellant appearing as self-actor.  She failed or overlooked to address the three procedural irregularities raised above.  Those grounds not having been argued before me were consequently dismissed as not specifically pleaded.

There were in my view two issues before the court.  The first was whether the Appellant was properly found guilty on the charge of ‘Failure to discharge duty’ when it was not part of her duties to handle or even safeguard cash received on behalf of Respondent.  The second issue was whether the decision by the Arbitrator having been based on circumstantial evidence was properly arrived at.

The Appellant contented that as it was not part of her core duties to handle or safeguard cash the Arbitrator erred in finding her guilty on the charge.  The Respondent’s submission was that it was an extension of her administrative duties as the Bursar’s Secretary.  This was not the first time it had taken place there was a practice where she could receive cash in the absence of the Acting Bursar.  Whilst it is accepted that indeed receiving and handling cash was not part of her duty the Appellant did by accepting to take the money and storing it in the drawer assume those responsibilities.  She could have refused to accept the money but she did not. By assuming the responsibility for the money it was her duty to keep it safe until it was handed to the Assistant Bursar.  She failed however in her duty by placing the money in an unlocked drawer in an office which was also unlocked.  The charge was in my view property leveled.  I also considered that there had been no unfair splitting of charges as the evidence required to prove each of the two charges was different.

The second issue is based on the circumstantial evidence.  The Arbitrator in his award concluded that based on the facts the only probable inference to be drawn from the facts was that the Appellant stole the money.  Although he did not use the same words his reasoning was very clear.  He stated as follows;

“Though it can be argued that M. Chingombe’s duties were not to handle cash but on this particular day she did and the money went missing.  In the case of CSAR v Adlington and Company 1906 IS 964, gave as an example of gross negligence the case of a person who when he has taken charge of property leaves it so exposed that thieves might carry it off.  This was more or lee the scenario that took place in this matter.  It’s even if it was that she did not take the money was exposed to danger.  In view of the above M. Chingombe did not properly do safeguard the money in custodian.  This also could go hand in hand that she stole the money because it was not secure.  Herself and the accounts clerk were the people who knew where the money was.  M. Chingombe was the bursar’s secretary in the same office she had left the money.  In view of the above all evidence is pointing to her that she took the money.  In my view, substantively, her dismissal was fair.”

The Arbitrator’s conclusion was that Appellant was grossly negligent when she left money in the drawer.  She exposed the money to danger.  She did not properly safeguard the money.  As a result of her conduct he concluded that she could have stolen the money as she knew it was not in a secure place.  He also concluded that cumulatively given that Appellant and the Accounts Clerk knew where the money was, the fact that Appellant was working in the same office where the money had been left, all the evidence seemed to point at Appellant as the culprit that took the money.

Circumstantial evidence was discussed in the matter of S v Tambo 2007(2) ZLR 32 (H).  Circumstantial evidence can, according to that authority, be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts.  It must be supported by rational reasoning and an analysis of the proved facts.

The record shows clearly that it was the evidence of the witnesses before the disciplinary hearing that Appellant, when approached by Mundoko with the cash, had instructed same to place the money in the bursar’s office in the drawer that did not lock.  It is common cause the office was also unlockable.  Having done so it was Nyaradzo’s evidence that the Appellant had then removed the money and placed it in a bottom drawer that the Appellant regarded as safe.  Upon leaving the office with Appellant and Mrs Muza, Appellant had then returned with Mrs Muza presumably to collect an umbrella left by Mrs Muza.  The two spent 15 minutes in the process.  Mrs Muza’s evidence was that once in the office she proceeded to collect her umbrella and left Appellant alone in the office.  The Disciplinary Committee based on the following pertinent facts:

That the Appellant was guilty of failure to attend to duty in that she had placed money in an unlocked drawer in an unlocked office thereby putting the Respondent money at risk;

That she had on at least three established occasions been alone in the office where the money was;

On a balance of probabilities then concluded that the Appellant could have taken the money.

The conclusion that the Appellant was guilty of the misconduct charged, was to my mind simply the only probable inference to be drawn from the facts.  It was for this reason I believed that this court should not interfere with the decision by the Arbitrator.  I consequently handed down an order as referred to supra.

Appellant In Person

Chihambakwe, Makonese & Ncube