Richard Chitema v Kukura Kurerwa Bus Company

IN THELABOUR COURT OF ZIMBABWE       JUDGMENTNO LC/MC/25/2013
HARARE, 29TH MAY & 30TH AUGUST, 2013      CASE NO LC/MC/27/12

RICHARD CHITEMA                                APPELLANT

Versus

KUKURA KURERWA BUS COMPANY                     RESPONDENT


Before The Honourable LF Kudya                        : President


For Appellant          :     Mr B Sasvikiro (Union Official)

For Respondent         :     Mr D Shaishai (H.R. Manager)


KUDYA L,

     The   Appellant       was    dismissed    by     the   Respondent
Company on allegations of theft of money meant to be
remitted to the bus company by him after conducting
his bus conductor duties. A Disciplinary Committee
sat over his matter and dismissed him. Aggrieved by
the dismissal,         he appealed      to the      internal appeal
structures without any success. Finally he appealed
to this court and it is that appeal which is the
subject matter of this judgment.
     Facts      of   the   case   are   that    the    Appellant    was
engaged    by    the    Respondent      in   November       2008   as   a
mechanic based in Mutare. He was later transferred to
Harare where he took on conductor duties in October
2011. On 2 March 2012 when he was carrying out his
duties, two incidents occurred which gave rise to the
theft allegations which caused his dismissal.
                                                     JUDGMENTNO
LC/MC/25/2013

        Firstly, when the bus had left Mbare and was at
Featherstone          the    supervisor    who       got    in   discovered
that    the     Appellant        had   issued    a    $10-00     ticket   in
place of the $21-00 dollars which he had been given
by the passenger. Secondly, as the supervisor carried
out further checks within the bus, he discovered that
another couple which had given the Appellant $20-00
had only had a $10-00 ticket issued meaning that the
other passenger had no ticket.
       The supervisor asked the Appellant about the two
cases. The Appellant’s explanation was that the $21-
00 case was an error which had been caused by the
passenger concerned later indicating that he also had
a   kitchen      unit       to   transport.     Due    to    that   mix   up
Appellant         erroneously          wrote     both        luggage      and
passenger fares on the same ticket resulting in the
anomaly observed by the supervisor.
        As regards the $20-00 he stated that, he had
been stopped mid transaction by a police roadblock
which he had to attend to first before he completed
writing the tickets. Resultantly when he came back,
he forgot that he had to complete the transaction. In
the    end      the    supervisor       found    him       before   he    had
regularised       the       transactions.       He    was    charged     with
theft on both counts and accordingly dismissed.
       His grounds of appeal as they were articulated by
his representative on the papers filed of record are
the following:
                                                    JUDGMENTNO
LC/MC/25/2013



  1) The record of the disciplinary hearing is an inaccurate reflection of what
     transpired.
  2) The Appellant was dismissed in terms of a wrong code of conduct.
  3) The record of the disciplinary hearing does not bear a full analysis of
     what transpired.
  4) It was undisputed that the Appellant explained clearly to the foreman
     about why the two incidents had taken place.
  5) No elements of theft were canvassed at all during the disciplinary
     hearing.
  6) The Appellant’s dismissal was improper, instead the Appellant should
     have been rewarded for his honesty.
  7) No intention to commit the offence was shown hence the Appellant’s
     dismissal was not supported by law.
  8) The authenticity of the record of the proceedings at the Disciplinary
     Hearing Committee was questionable because it did not have all the
     signatures of the panellists and one of the panellist’s name which
     appeared on the body of the hearing did not appear on the list of the
     names of the panellists.
  9) The Respondent’s Human Resources Manager acted improperly in that he
     heard the Appellant’s internal appeal yet he is the one who was dealing
     with the same issue from the early stages of the case hence when he sat as
     an appeal body he was already an interested party hence could not deal
     with the appeal in an impartial manner.
                                                       JUDGMENTNO
LC/MC/25/2013

       In response to the appeal the Respondent referred
the    court    to     the “Response Minutes where Chitema admits his
offence.”


       It is pertinent to observe that a reading of the
appeal grounds demonstrates that the Appellant had
issues both with the procedure/process which was used
to    arrive      at      his     dismissal       which     is     the   review
component       of     the      case   as    well      as   the    substantive
component       of        the     case      which      is    the     appellate
component of the case.
       The   Labour         Court      Rules      provide     for     the    two
separate procedures and parties are supposed to file
their pleadings based on the particular aspect of the
proceedings which               they are       not happy          about. Being
that    as   it      is     the   court     was     however       prepared   to
condone the mixing of the review and the appellate
issues in the same set of pleadings.
       This was so taking into account the fact that
both parties involved in the instant case are not
legally competent persons who the court would expect
to be well versed with the legal niceties of drafting
of    pleadings        or    presentation         of    cases      before    the
court. This judgment will therefore address both the
review and appellate issues which the Appellant says
were not handled properly by the tribunals below. For
clarity of record the court will address each ground
in turn.
                                                  JUDGMENTNO
LC/MC/25/2013

Ground One
       This is a reviewable ground where the Appellant
takes issue with the record of proceedings in the
case    where      he    was   dismissed.     He    argues      that   the
record was not a true reflection of what transpired
during the proceedings. Apart from that mere say so
there was nothing further which the Appellant brought
before the court to show that indeed the record was
not a complete reflection of what transpired.
       The   law    is   clear      that   when    one   sets    out   the
grounds      of    appeal      these   should      be    set    out    with
sufficient         clarity     to    enable       the    Respondent      to
respond meaningfully to them. Judging from the way in
which this ground is couched there is nothing more in
it for the court to find that it has merit. It is
thus accordingly dismissed.


Ground 2
       As regards the Code of Conduct, the management’s
view is that the Respondent quoted the code as it
previously was before amendment to the new statutory
instrument. The law relating to use of a wrong code
of conduct is clear that, if the code is wrong to the
extent that the offence so cited is non existent or a
wrong one completely then it will be ruled that all
the proceedings were a nullity.
        In the instant case, the averments made seem to
only pertain to the wrong citation but the meat of
                                                JUDGMENTNO
LC/MC/25/2013

the offence remaining intact. The court is satisfied
that in     the absence         of evidence       demonstrating how
such    a   technicality        prejudiced      the    appellant   the
court is not inclined to rule that the proceedings
were void ab initio but voidable. To that extent, the
court is satisfied that the remedy lies in asking the
Respondent      to   amend   the    citation       and   reflect   the
correct citation. The ground succeeds to the extent
of the correction to be made as stated above.
Ground 3
       The Appellant says dismissal was made without a
full analysis of the matter. The court agrees that a
reading of the minutes of the hearing shows skimpy
notes of what the Appellant was saying and what the
Respondent stated. It is not clear indeed how the
Appellant’s      guilt    was     found.   To     that   extent,   the
ground has merit and it shall stand.
        It need however be noted that in the light of
the case of Air Zimbabwe vs. Chiku Mnensa and Mavis
Mwarwenye SC 89/04 the law is clear that an employee
should not escape his           guilt on technical grounds but
on grounds that he is innocent.
                Facts of the instant case show that the
Appellant       received        money      from       passengers    in
circumstances calculated to show that he wanted to
deprive the      Respondent Company           of that     money. The
fact that the hearing seem to have been botched up
means    that   such     should    be   put     right.   This   ground
                                       JUDGMENTNO
LC/MC/25/2013

therefore succeeds to the extent that the Respondent
has to reconvene the hearing and deal with the matter
in a procedurally correct fashion.
Ground 4
     This ground is intricately linked to ground 3
above and the remedy suggested in 3 should address
the argument raised in ground 4.
Ground 5
     As pointed out in ground 4, the cogency or
otherwise of the excuses given by the Appellant can
only be decided upon if the hearing had been done
properly. Since it was not, it thus means that the
remedy in 3 also takes care or this ground.
Ground 6
     This again is on all fours with grounds 3 to 5
and same remedy applies thereto.
Ground 7
     Same sentiments in ground 3 to 6 apply to this
ground.
Ground 8
     This is linked to ground one and two which are
about the record and, as stated in 3 the remedy lies
in a hearing de novo of the matter.
Ground 9
     The court does not want to do more than repeat
that where the procedure was flouted it should be put
right. See      Tichawana Nyahuma   vs. Barclays    Bank   SC
67/05
                                                     JUDGMENTNO
LC/MC/25/2013



          In the main, it is clear from the analysis of
all   the       grounds    that      the    Respondent         bungled    the
procedure of handling the Appellant’s case and that
should be put right by dealing with the matter afresh
in a procedurally correct fashion.




IT IS ORDERED THAT


1. The appeal being with merit in the main be and is
   hereby upheld.
2. The order dismissing the Appellant is set aside
   and    in     its   place     the     Respondent       is    ordered   to
   reconvene a disciplinary hearing to deal with the
   Appellant’s case afresh in a procedurally correct
   manner       within     30    days      of   the     receipt    of    this
   judgment        failing      which       the      Appellant    will     be
   deemed to be reinstated without loss of pay and
   benefits       from    the     date     of     his   suspension       and,
   alternatively          to    be     paid     damages    in     place    of
   reinstatement in a quantum to be agreed upon by
   the    parties.        If    there      is   no    agreement     on    the
   quantum either party can approach this court for
   quantification.
                                          JUDGMENTNO
LC/MC/25/2013

L.KUDYA
PRESIDENT- LABOUR COURT


Transport       and   General   Workers   Union   –Appellants
Representatives.