Phineas Chakauya v Moonlight Funeral Assurance and Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/MC/38/2013
HARARE, 2 JUNE & 8 NOVEMBER
CASE
NO
JUDGMENT NO LC/MC/38/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/38/2013

HARARE, 2 JUNE & 8 NOVEMBER		 CASE NO LC/MC/35/2012

2013

In the matter between:-

PHINEAS CHAKAUYA					APPELLANT

Versus

MOONLIGHT FUNERAL ASSURANCE 		RESPONDENT

AND SERVICES

Before the Honourable L Kudya 	:   	Judge

For the Appellant			In person

For the Respondent		T W Nyamakura (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the Negotiating Committee Appeals board for the Commercial Sectors of Zimbabwe (“N.E.C.”), where it confirmed the dismissal of the Appellant by the Respondent Company.

Facts of the case are that, the Appellant who was in the Respondent’s employ at the time of the alleged misconduct was brought before the Designated Agent on allegations of having stolen some cellphone lines which were being used by the Respondent Company for promotional purposes. He is said to have admitted his infraction before the designated agent. As a result of that admission he was found guilty of the misconduct and consequently discharged from employment.

He appeared before his employer as provided for by the Industry Code and the employer confirmed his dismissal. Aggrieved by the dismissal, he approached the Local Joint Committee for the Commercial Sector. The Joint Committee confirmed his dismissal. That confirmation led him to approach the Negotiating Committee with a view to it setting aside his dismissal. The Negotiating Committee however, also confirmed the dismissal. It is against the decision of the Negotiating Committee that he has now appealed to this court.

The grounds of appeal which he relies on are:-

Minutes of the hearing which saw the Appellant’s dismissal were doctored. He was denied the handwritten copy of the minutes upon request.

The complainant at the police was the Appellant’s immediate superior yet at the disciplinary hearing the Regional Manager appeared as the complainant notwithstanding the fact that, he was not based at the branch where the misconduct took place. On the same note, the Appellant, says he explained to the Regional Manager that he had been authorised to sell the lines by his immediate superior.

The Appellant was employed by the Respondent as an undertaker and not a vendor, so it is questionable how he could be said to have accessed the lines, yet they were kept under key and lock by his immediate superior.

No evidence was led as to how the lines were issued taking into account that sale of same started in June 2011 and no one made an issue out of that.

The Appellant was denied the right to be heard. He was not given a chance to present his side of the story. He was not given the chance to cross examine witnesses in his case. Had he been given the chance to present his side of the story he would have shown the panel evidence of some cards which he says began selling before the lines in the instant case.

The hearing was conducted before a thorough investigation of the matter. The designated officer did not consider that the Manager/Appellant’s boss was the custodian of the lines and sale of lines began in January 2011. In respect of the lines in instant case, the Appellant was authorised to sell the same to take care of the financial problem that he was in.

The Negotiating Committee accepted the fact that, the Appellant had admitted theft of the lines at the police yet he did not make such an admission.

The Appellant was acquitted by the Criminal Court on the charges arising out of the lines in question. This shows that there was no good case against him for the theft of the lines.

In response the Respondent maintained that:

The N.E.C rightly and lucidly dismissed the Appellant’s appeal from the local joint committee.

In limine the Appellant raised new grounds at N.E.C which grounds were not before the Local Joint Committee and these are that:

Hearing minutes were doctored and the Appellant denied handwritten copies of the same.

Chirairai who was the complainant before the police and the Appellant’s supervisor had authorised the Appellant to take the lines yet the Regional Manager based at Mutare argued in the proceedings as the complainant that the Appellant had stolen the lines in question.

The Appellant reported directly to the branch manager who he alleges authorised him to sell the lines. Since the manager was custodian of the lines, there was need to establish how the Appellant had accessed the lines in question.

The Appellant was said to have admitted theft of the lines at the police yet at the time of the hearing the magistrate had not yet ruled on the criminal case in question.

Local Joint Committee relied on argument that the Appellant admitted the theft before the police yet in truth and in fact that was not so.

In essence, the Respondent’s argument in respect of the above was that an appeal court was not allowed at law to deal with points which were not raised in the Court below it. In the instant case the points stated above were said not to form part of the arguments raised before the Local Joint Committee. These only surfaced for the first time at the N.E.C and in the Respondent’s view they should have been disregarded as they were new grounds which had not been deliberated on previously. Consequently the Respondent urged this court to also dismiss the quoted grounds on this basis alone.

The Respondent argued that the Appellant was granted a chance to be heard. He was represented at the disciplinary hearing and was afforded the chance to cross examine the complainant. In fact he signed the minutes of the hearing. Such minutes reflected that he waived his right to cross examine the complainant.

Investigations were carried out and sufficient evidence gathered as borne out by the witnesses’ statements. Further to that, the Appellant admitted in his warned and cautioned statement to the police and during the initial hearing as borne out by the minutes which he approved and signed.

In the result the Respondent prayed that the appeal must fail on the basis of the above stated grounds.

The law relating to appeals of this nature is settled, that the Appeal Court will only interfere with the exercise of the discretion of the lower tribunal if it is satisfied that the lower tribunal exercised such discretion improperly, maliciously or capriciously. See case of AG vs Howman 1988 (2) ZLR 402 (SC)

Applying the test in the quoted case to the facts of the instant case, the question which the court has to answer is whether or not it can be said the N.E.C and the other adjudicating bodies below it failed to exercise their discretion properly when the Appellant was found guilty of theft of promotional cell phone lines and subsequently dismissed from employment.

A reading of all the grounds of appeal as amplified by the oral submissions made by the Appellant shows that the basic thrust of the appeal is that the Appellant is of the view that he was found guilty in improper circumstances since the person he alleges gave him the authority to sell the lines was not brought before the Disciplinary Committee to give evidence and for him to cross examine him.

The other major argument is that, the minutes by the Designated Agent and before the employer, were doctored hence any admissions of guilty contained therein were of no force or effect. The Court needs to make an observation at the outset that, the Appellant’s appeals all the way from the Local Joint Committee up to the Labour Court took a snowballing effect in that at every stage he raised new issues that were not raised before the previous adjudicating body. That is clearly not permitted at law as indicated by the authorities cited by the Respondent on that point which authorities in this Court’s view deserve no re-statement.

What is apparent from the very first decision on the matter is that it was based on the Appellant’s guilty plea as well as his statement to the police. Whilst it is accepted that criminal proceedings and disciplinary proceedings are mutually independent of the other. It need be noted that labour disputes call for an even lower standard of proof. See ZESA v Dera SC 79/98.

To that extent, the only question to be asked is whether it was outrageous for the Designated Agent to accept the Appellant’s concession that he took the lines to solve his financial problems vis his father’s burial. As correctly pointed out by the Respondent, the designated Agent who dealt with the matter at the onset was an impartial body neither linked to the Appellant nor the Respondent. It would therefore, be quite curious why same would decide to doctor the minutes to find the Appellant’s guilt. The explanation given by the Respondent why the minutes before the employer were not signed seems to accord with the truth of what transpired.

In the same breath the fact that, the Appellant was eventually acquitted by the Criminal Court is neither here nor there as already discussed above in respect of the degrees of proof in such cases.

In the ultimate, it is clear that of all the grounds raised by the Appellant none has merit and none shows that the N.E.C failed to exercise its discretion well. The appeal should therefore fail on that basis.

IT IS ORDERED THAT:

The appeal being devoid of merit in its entirety be and is hereby dismissed with costs.

L KUDYA

JUDGE – LABOUR COURT

Mtetwa & Nyambirai Legal Practitioners, respondent’s legal practitioners