Paul Simango v Chibuku Breweries (Delta Beverages (Pvt) Ltd)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/733/13
HELD AT HARARE ON 4TH NOVEMBER, 2013
CASE NO. LC/H/25/01
AND 3rd JANUARY, 2014
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/733/13

HELD AT HARARE ON 4TH NOVEMBER, 2013   CASE NO. LC/H/25/01

AND 3rd JANUARY, 2014

In the matter between:-

PAUL SIMANGO								Appellant

And

CHIBUKU BREWERIES

(DELTA BEVERAGES (PVT) LTD)				Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: E. Maponga(General Secretary UFAWUZ)

For Respondent: G. Chingoma (Legal Practitioner)

MHURI J.:

This is an appeal against the Appeals Board’s decision that upheld the Grievance and Disciplinary Committee’s decision upholding Appellant’s dismissal from Respondent’s employment.

Appellant’s grounds of appeal as captured in the notice of appeal are as follows:-

“The company should have dropped the case against Mr. Paul Simango, because 30 days had elapsed before the appeal hearing was conducted.  Chibuku Code of Conduct Section 7.7.4 as read with Section 6.6.7.

Mr. Paul Simango should not have to give false information of what he did not see.  (Chibuku Code of Conduct Section 9 subsection 5).

Stock book was tampered with to suit their case against P. Simango.

Absence from work; It was his break and Mr. V. Munjimba confirmed that, there was flexible break this is reflecting in the minutes of 9 November, 2000.  Mr. Paul Simango has no case to answer”

These grounds of appeal leave a lot to be desired I must say.

It is a well settled position that a notice of appeal must contain concise grounds of appeal.

See STATE V McNAB 1986 (2) ZLR 280 (S)

in which DUMBUTSHENA CJ (as he then was) had this to say at page 281

“An appeal must set out clearly and specifically the ground of appeal.  That which the Appellant is attacking in the judgment of convicting court must be set out.  A generalization ….is not good enough … .”

Appellant’s grounds 2 and 3 fall far short of this requirement.

I turn however to deal with each ground of appeal

Ground 1.

This ground of appeal ought not to have been raised by Appellant at all.  The Appeal Board’s letter dated the 17 November, 2000 to the Appellant, being the outcome of the Appeal hearing shows that this ground fell away as Appellant accepted the explanation by the Industrial Relations Consultant during the appeal hearing.  As a result the Appeal Board did not deal with it to make a determination on it.

“You appealed to the Appeal Board on the following grounds:

You denied both charges …

You claimed that standard procedure had not been followed in that the specified time had elapsed between your appeal to the Appeals Board and the actual hearing.

Dealing with second ground of appeal.  You accepted the explanation given by the Industrial Relations Consultant.  This ground fell off “

The ground having fallen off as stated above, it was not proper for Appellant to raise it again before this Court.

Even if the ground had been properly raised before this Court, it would not assist Appellant at all.

Clause 5.10 of Respondent’s Code of Conduct (The Code) stipulates that the decision of the Hearing Officer shall be communicated to the offender within 30 days of the commencement of the disciplinary proceedings.  If 30 days elapse before any determination is made then the case is dropped (Underlining my own) Clause 6.7 speaks to the same requirement.  In casu Appellant was notified of the disciplinary proceedings by a letter dated 25th February, 2000.  By a letter dated 6th March, 2000 he was notified of the date of hearing - 9th March, 2000. By a letter dated the 24th March, 2000 he was advised of the outcome (letter of discharge which he received on 27th March, 2000).

Respondent therefore complied with clauses 5.10 and 6.7.

Clause 7.4 stipulates that an Appeal Board shall convene to hear and determine the appeal within 30 days of receipt of the appeal.  Unlike clauses 5.10 and 6.7 clause 7.4 does not state that if 30 days elapse and the matter is not determined the matter shall be dropped. (Underlining my own)

In casu, Respondent did not comply with clause 7.4.  The delay occasioned, however did not mean that the case had to be dropped.  The procedure open to Appellant was to make an application for an order compelling the Appeal Board to issue a determination.

ZIMRA V MPINDIWA SC 85/2006

Ground 2 is very difficult to comprehend.  It is not clear what Appellant actually was aggrieved by which he wants this Court to decide on.

Ground 3 is equally vague as ground 2.

From the submissions as contained in the Heads of Argument I do not see how the tampering of figures affected Appellant.  He said the figures before the “tampering” were

After stock taking 				38 272

Actual stock						37 262

Surplus							 1 010

After tampering

After stock taking 				38 032

Actual stock 						37 348

Loss								   684

My simple arithmetic does not show any loss.  It is noted that Appellant was charged with aiding misconduct in that he loaded 6 pallets on truck 3590 and helped off loading the pallets at a place known to him.  He was also charged with absenting himself from work for

1½ hours.

As for ground 4, the Hearing Officer found as proved the fact that Appellant was absent from duty for close to 1½ hours.  This was a factual finding which this Court cannot interfere with unless it is shown that it was so unreasonable.  Appellant did not deny that he left his work station for close to an hour.  He did not advise his supervisor.  He admitted that his break time was 30 minutes but he was away for more than 30 minutes.

In view of the above, can it be said that the Hearing Officer’s finding was so unreasonable to warrant interference by this Court?  Certainly not in my view.

See NICHOLAS HAMA V NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S) at 670 C-E

cited with approval in the case of:-

VIMBAI MBISVA V RAINBOW TOURISM GROUP SC 32/2009

in which the principle was aptly stated that an Appellate Court not to interfere with a decision of a trial Court based purely on a finding of fact.

This Court therefore has no legal basis to interfere with the factual findings of the tribunals aquo.

To that end, this appeal must fail.  Accordingly it is ordered that the appeal be and is hereby dismissed.

UFAWUZ–Appellant’s Legal Practitioners

Dube, Manikai and Hwacha–Respondent’s Legal Practitioners