Oswald Chiwashira v Vehicle Inspectorate Department and Minister of Transport and Infrastructural Development

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/01/21
HELD AT HARARE ON 5th NOVEMBER, 2020
CASE NO. LC/H/51/20
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THE LABOUR COURT OF ZIMBABWE	       	        JUDGMENT NO. LC/H/01/21

HELD AT HARARE ON 5th NOVEMBER, 2020      CASE NO. LC/H/51/20

AND 19TH FEBRUARY, 2021

In the matter between:-

OSWALD CHIWASHIRA							Appellant

And

VEHICLE INSPECTORATE DEPARTMENT				1st Respondent

And

MINISTER OF TRANSPORT AND

INFRASTRUCTURAL  DEVELOPMENT				2nd Respondent

Before the Honourable Mhuri, J.

For Appellant		     :	Mr. K. Musoni (Legal Practitioner)

For 1st & 2nd Respondents  :	Mr. D. Machingauta (Law Officer Civil Division of the Attorney General’s Office)

MHURI J.

The factual background of this matter which is generally common cause is that:

Appellant was in 2nd respondent’s employ under the 1st respondent and his duty among others was to conduct road tests on holders of Learners licenses and if the holder proves that he is competent to drive, issue him/her with a certificate of competency.

There are certain tests that are specific to certain classes of vehicles and are not applicable to other classes, namely the 3 point turn is conducted on class 4 and not class 2 road tests.

On the 27th August, 2019 appellant conducted a road test for class 2 vehicle on Razaro Kachikopa.

After the test, Kachikopa was advised that he had failed the test.

Kachikopa was not satisfied with the test result.  He took the matter up which eventually led to the appellant being charged with the act of misconduct that led to his dismissal.

Appellant was charged with violating paragraph 24 of the Public Service Regulations 2000 as amended i.e. ”acting inconsistently with the discharge of official duties including abuse of authority”.

The allegation being that on the 27th August, 2019 appellant acted inconsistently with the discharge of his official duties by deliberately failing Mr. Razaro Kachikopa who had passed a Class 2 road test.

Aggrieved by the verdict and penalty appellant noted this appeal on 3 grounds:

Against the verdict and

Against the penalty

Appellant‘s ground of appeal against the verdict was that:

the Disciplinary Authority erred and misdirected itself in dismissing appellant when all the evidence submitted indicated that no offence whatsoever was committed by appellant. There was no corroboration between complainant and his witnesses on the deliberateness done by appellant to fail complainant.

On the penalty, the two grounds can be summarised as follows; that the Disciplinary Authority erred and misdirected itself in failing to consider that the dismissal penalty was irrational, failing to consider other optional penalties and also failing to explain why these were not applicable in the circumstances.

The Disciplinary Hearing Committee considered evidence from the complainant Mr. Kachikopa, Mr. Bumhira the Depot Manager, Mr Rufus, the driving Instructor and the check sheet.

In summary, the Disciplinary Hearing Committee considered the evidence that:-

On the 29th August, 2019 Kachikopa was taken for a class 2 road test by appellant after having successfully executed the yard test.

The class 2 test did not entail executing a 3 point turn.

From the road test, Kachikopa was given a form to fill in his personal details by appellant.

Appellant left the office and called the instructor Mr. Rufus into another office where he asked him “if he had brought his things” when asked what things, appellant got angry and told Rufus that he was wasting his time.  He then left.

On his return to the office in which Kachikopa was, appellant took the forms Kachikopa was filling in and gave him a check sheet to sign.

On the check sheet it was indicated inter alia that he had failed a 3 point turn test.

Kachikopa immediately reported this to his instructor who in turn reported to the Depot Manager who took no action.

Eventually the matter was taken up by the Association of Instructors who made a report at Appellant’s Head Office.

On the 24th August, 2019 Mr. Kachakopa had undergone another road test which he failed.  He was not given any forms to fill in his personal details upon being advised of his failure.  He was made to sign a check sheet.

In summary appellant’s evidence was a denial that he gave Mr. Kachikopa any forms to fill his personal details.  He indicated that the check sheet was doctored by Mr. Kachikopa to show that he had failed a three point turn.  He was adamant Mr. Kachikopa had failed the test.  He queried why the matter was reported at Head Office and not at the depot.  He was of the view that the complaint letter was not written by Mr. Kachikopa.

With this evidence placed before it, the Disciplinary Hearing Committee had to consider the credibility of the appellant.  It made the following findings which in my view are beyond reproach;

that:-

Mr Kachikopa indeed took a test on the 27th August, 2019 at VID Eastlea.

there is credibility in the claim by Mr Kachikopa because he failed a road test taken on the 24th August 2019 but did not lodge a complaint.

appellant abused his office by deliberately failing Mr. Kachikopa who had passed a class 2 road test.

Appellant did not dispute the fact that after the test he briefly left Kachikopa in the office to converse with the instructor.

Appellant did not dispute the instructor’s evidence

the RTLD 9 Form is the only form given after the test to successful applicants to fill in personal details.

Appellant emotionally marked on 3 point turn and mounting a curb which is not examinable in a class 2 test.

These are findings which this Court cannot lightly interfere with.  Neither can this Court interfere with findings on the credibility of the main witnesses.

See:	HAMA  v  NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S) at 670 C-E.

NICKOLAS VAN HOOGSTRATEN  v  TAPIWA NELOMWE SC 4/2020

quoting with approval

STATE  v  MLAMBO 1994 (2) ZLR 410 at 413 C.

“The assessment of the credibility of a witness is par excellence the province of the trial Court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense”

Considering the evidence placed before the tribunals aquo, it is abundantly clear that there is nothing that raises concerns of defiance of reason and common sense by the Disciplinary Hearing Committee when it considered the credibility of Mr. Kachikopa.  The Disciplinary Hearing Committee weighed the evidence of the two contesting parties and it came to the conclusion on a balance of probabilities that Mr Kachikopa’s evidence corroborated by his witnesses was more credible than that of appellant.  I find no basis to interfere with the findings of the Disciplinary Hearing Committee which were confirmed by the Disciplinary Authority.

The evidence was sufficient enough and strong enough to support a guilty verdict.  I find that appellant’s first ground is totally without merit and is to be dismissed.

As regards the 2nd and 3rd grounds, principles have been established and stated time without number by the Supreme Court to the effect that once an employer has taken a serious view of the misconduct committed by an employee to the extent that it considers it a repudiation of the contract which repudiation it accepts by dismissing the employee, the question of a penalty less severe than dismissal will not arise for consideration.

CIRCLE CEMENT (PRIVATE) LIMITED  v  CHIPO NYAWASHA SC 60/03

It is also a well-established principle that the imposition of a penalty is the sole discretion of the employer.  Unless that discretion has not been judiciously exercised, an Appellate Court cannot interfere with the penalty so imposed.

Malaba JA’s (as he was) remarks in the case of

STANDARD CHARTERED BANK  v  MICHAEL CHAPUKA   SC 125/04

to the effect that

“……. conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter.”

are apt.

Appellant was found guilty of acting inconsistently with the discharge of official duties, including abuse of authority.  Section 50 of the Public Service Regulations provides the penalties any of which can be imposed by the Disciplinary Authority, discharge from the service being one of them.  In casu, the Disciplinary Hearing Committee considering its findings, recommended that appellant be discharged from the service.  Acting on the Disciplinary Hearing Committee’s recommendation, the Disciplinary Authority discharged appellant from service.

Save to say that the penalty was severe, that he was a 1st offender appellant did not show any irrationality on the part of the Disciplinary Authority to warrant interference with the penalty by this Court.

As stated in the CIRCLE CEMENT case (supra), where the employer has taken a serious view of misconduct and dismisses the employee the question of a penalty less severe than dismissal does not arise for consideration.

Further this was an exercise of discretion by the employer.  I find no basis to interfere with it more so in the absence of gross unreasonableness, mala fides or capriciousness.  Nothing convincing has been proffered by appellant to this Court for me to hold that the dismissal was reached upon based on a wrong principle or mistake of facts for me to interfere and substitute the penalty.

These two grounds are equally without any merit and ought to be dismissed.

All the grounds having been found to be without merit, it follows that the appeal must be dismissed in its entirety.

To that end, it is ordered that the appeal be and is hereby dismissed with costs.

MUSONI MASASIRE LAW CHAMBERS- Appellant’s legal practitioners

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondents’ legal practitioners