Shepherd Marara v Total Zimbabwe

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/137/24
CASE NO. LC/H/105/2020
ZIMBABWE HARARE, 16TH NOVEMBER 2023 AND 26TH MARCH, 2024
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 16TH
NOVEMBER 2023 AND 26TH
MARCH, 2024

SHEPHERD MARARA
And
TOTAL ZIMBABWE

Before the Honourable Kachambwa J,
Judge;

P. Mleya (Legal Practitioner)

S. Sadomba (Legal Practitioner)

KACHAMBWA, J:

The Appeal

1. This is an appeal against the judgment of the employer in which the appellant was convicted of three acts of breaching section 4(a) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006. It reads;

“any act or conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract”.


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 2. The grounds of appeal are that;

“1. The Appeals Authority erred in upholding the decision of the disciplinary authority in finding the Appellant guilty of failure to make effective follow up on his recommended action plan when the charge was “failure to make follow up” in light of the evidence adducing (sic) demonstrating that follow ups were made.

2. The Appeals Authority erred at law in making a finding that the Appellant was responsible for implementation of recommended action plans in light of the evidence and its own admission that it was not the duty of the Appellant.

3. The Appeals Authority erred in upholding the testimony of a single uncorroborated and inconsistent witness, Felix Ncube who relied on hearsay.

4. The Appeals Authority erred at law in finding the Appellant guilty of the second charge after relying on evidence of Francis Tegwe (who) neither testified (nor) attest (ed) to an affidavit.

5. The Appeals Authority erred in and misdirected itself at law by making a finding that the Appellant was guilty of the third charge yet there was no evidence placed before it to prove the same.

6. The Appeals Authority erred in upholding the penalty of the disciplinary committee (authority) which failed to take into account the mitigation factors submitted by the Appellant considering that the Respondent did not make any submissions in aggravation”.

3. The Appellant prayed that the appeal succeeds and that he be reinstated without loss of salary and benefits or that he be paid damages for loss of employment.
 4. The Appellant was employed by the respondent for a good thirty five years. At the time of termination of employment he held the post of retail controller. In that capacity he carried out an audit at Rusape service station and made recommendations that had to be actioned.

These plans were not carried out and this failure led to the charge of first count which was failure to follow on recommended action plans. The Appellant was convicted on failure to make “an effective follow up” and not just failure to make a follow up. The same state of affairs continued September to December and to March of the following year leading to further losses of cash. The Appellant was said to have been expected to do more than what he did so as to ensure that the action plans were executed.

5. On the theft of the USD$200-00 the Appellant was said to have received this money from a caretaker at a service station in Glenview. The information came out as an aside on investigations carried out at the station.

6. On the third count, that of deliberately omitting to mention the existence of a shop being operated by an employee at Glenview Service Station it was a fact that such a shop existed. It was operating illegally at the station. It was said that circumstances existed to show that he should have seen evidence of its presence failing which the failure would be a sign of failure to do a proper audit. He was convicted despite his denial.

7. The counts were taken as one for the imposition of a penalty.


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8. On the question of follow up the Appellant is raising two issues. Firstly he said that he did his part in terms of his job parameters and secondly that “effective follow up” is not the charge that he was charged of. It is different from simple “follow up”. He argued that these are two different charges.

9. On the issue of the theft of the USD$200-00 the complaint is simply that the single witness evidence was not credible. Further the witness had a bone to chew with the Appellant. Therefore there was no evidence to convict.

10. On the question of the illegal shop operating at the Glenview service station the issue is one of inadequate evidence and an incredible witness.

11. All the factual findings were challenged.

12. The penalty was challenged on the grounds that the respondent did not consider the appellant’s mitigation in the absence of an address in aggravation.

The Response

13. The Respondent argued that the factual findings were in order. Further there was no gross misdirection on the findings and thus an appeal court is ill advised to interfere with them. As for the penalty it was said that it is discretionary and in any case it was not true to say that the respondent did not address on it. In the absence of an ill exercise of the discretion the penalty should not be disturbed.


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Arguments in Court

14. Both parties cited precedent for their arguments. The Appellant was insistent that he had done his duty sufficiently. He emphasised the danger of a one witness who was disgruntled for that matter because he had left employment due to the very audit giving rise to the charges. The respondent on the other hand was adamant that the charge was proved. The witness’ evidence was said to be unassailable and the penalty fitted the offence.

Analysis

15. The bottom line in the case is whether there was evidence to convict and if there was whether there was a misdirection on the penalty. The issue of factual findings by a trial court and the extent to which an appeal court is free to interfere with such findings is well captured in precedent. An appeal court does not lightly interfere with such findings. There has to be a case of serious misdirection on those findings. Such is not the argument before this court. It is also worthy reminding ourselves that this was a manager who was tried by his peers who are versed in what they as management understood to be each one’s responsibility on the operations of the company. As is amply argued, follow up was not a cosmetic thing. It was not a work to rule thing. It was about results. It was about change. For a controller to go for six months or so without seeing implementation of recommendations and without taking further action was unacceptable in the eyes of his peers. It was like dereliction of duty. It does not seem that they were wrong in finding such conduct as falling below what was expected of him. For that it would not seem proper that their finding should be disturbed. Proof in these matters is on a balance of probabilities.


It is not as high as in criminal cases. See **Lawsign Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Itd SC** 13/2013 at page 3.

16. The Appellant also argued that he was convicted of an entirely new charge altogether. On the other hand the respondent says that that is a matter of semantics. Indeed the record shows that there was a move from “follow up” to “effective follow up”. But is that semantics?. Is it the same as negligent and gross negligence?. It would appear that it was common cause that the appellant had done a template and had sent communication on his recommendations. What was in contention was that that alone was not enough and the appellant was expected to do more. The purpose of his work was not to file recommendations on action plans but to see that remedial action was taken. To that extent his argument that he has done his party falls out. He had to see to it that his recommendations had been effected and the problems were remedied. Thus the conviction would be right in that regard. The work is not about making recommendations. It is about recommendation, implementation and results.

17. On the issue of one witness evidence it is not enough to argue that it was one witness. It is a question of credibility and the evidence on the other side. In this case the evidence was found credible. The issue of credibility is better assessed at the trial stage. For that reason the appellate court is also unwilling to readily jump in to upset such evidence. The same should apply here. The circumstances do not show that the witnesses were lying to fix the appellant.

The Law


18. The appellate court must be slow to interfere. The cases on this point are numerous. One of the classic cases is **Hama v NRZ** 1996(1) ZLR 664 where at 670 it is said that;
 “The general rule of law, as regards irrationality is that an Appellate Court will not interfere with a decision of a Trial Court based purely on finding of fact unless it is satisfied that having regard to the evidence placed before the Trial Court, the finding complained of is outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion. **Bition v Rosenberg** 1936 AD 380 at 395; **Secretary of State for Education and Science v Metropolitan Borough of Tamerside** [1976 ALLER 665 (CA) at 671 E-H; **CCSV v Ministry of the Civil Service** [1984] 3 ALLER 935 (HC) at 950 H.”

This position was reaffirmed in **ZB Bank v Maria Masunda** SC 48/15 where at page 8 of the cyclostyled judgment ZIYAMBI JA said that;

“It is a trite principle of our law that an Appellate Court should not interfere with an exercise of discretion by a lower court or Tribunal unless there has been a clear misdirection on the part of the lower court. In other words, the decision the decision must have been irrational, in the sense that of being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his (her?) mind to the question could have arrived at such a conclusion.”

19. The law has imposed a very high standard for upsetting the decision of the Trial Court on the factual findings. A party wishing to have such done has to show that indeed the standard has been met. It is not a question of another court coming up with a different conclusion in criminal cases.
 20. On the question of the count of follow up the law is also clear that a person shall not be convicted of a charge that he/she was not charged of unless it is a competent verdict for the charge that he/she faced. The law is also clear that charges framed by lay persons should not be strictly analysed so as to result in decisions being made on mere technicalities. The essence of the charge is what is important. An employee facing trial before his/her colleagues should not escape on a technicality but should escape because of being innocent. The courts have emphasised the need for resolution of the real issue between the parties rather than to dwell too much on technicalities. In **Edmore Taperesu**

**Mazambani v International Trading Company (Private) Ltd and Another** SC 88/20 MANTHONSI JA had this to say;

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities”.

21. In **Edmore Mapondera & 55 others v Freda Rebecca Gold Mine Holdings Ltd** SC 81/22 BHUNU JA also remarks that;

“It is therefore clear from the authorities that the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of simple procedural errors in order to do real and substantial justice”.

22. On the argument on the follow up and effective follow up one could also have regard to the remarks in **Lawsign Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd** SC 13/13 wherein PATEL AJA (as he then was) said at page 3;

“As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases. By the same token, a
 8 disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless there are certain basic principles that neither a court nor tribunal can depart from. One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognisable affinity with one another”.

We are alluding to this case in the sense that at the workplace undue strictness may lead to failure to do justice between the parties and that we must always bear in mind what the standard of proof is.

23. Coming to the penalty this is a discretion of the employer. An Appeal Court must not lightly interfere with that discretion. In **Innscor Africa (Pvt) Ltd v Letron Chimoto** SC 6/2012 MALABA DCJ (as he then was) remarks at page 2 of the cyclostyled judgment that;

“A principle has now been firmly established to the effect (that) an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court”.

Applying The Law To The Appeal

24. It would appear that the issue of conviction on effective follow up rather than follow up is a mere technicality indeed, a matter of semantics. This is even moreso considering that this was a trial by peers wherein the parties knew clearly the problem that they were grappling with. It was a problem of the appellant not having done enough to arrest the problems that he had identified. Therefore this conviction should stand.


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25. Coming to the challenge on the findings of fact it also appears that there is no serious misdirection at all. There is no rule of law that says the evidence of one witness cannot find conviction. It is a question of the sufficiency of that evidence, the credibility of the witness as seen by the “trial court”. There does not seem to be any reason to discredit the finding by the trial court and hence that of the appeal tribunal. The record is not replete with evidence that show that there was a serious misdirection. For this court to interfere that would statemount to just replacing the finding with its own just because it differs. There is no justification to do that. In the chain of command and responsibility over this problem the respondent faced the appellant stands out prominently. He cannot escape liability. Others might have deserved to be punished as well but that does not exonerate him.

26. On the failure to notice that there were foreign goods in the shop certainly appellant should have seen those if he was engaged in a thorough audit.

27. On the USD200-00 the evidence to establish guilty on a balance of probability exists. It is not a case of hearsay.

28. Coming to the penalty, once the employer has taken the view that the offence goes to the root of the employment contract and decides to terminate the contract one has to show that the offence does not go to the root of the contract. It is not enough to say that there were alternative penalties. The exercise of discretion is not misplaced here.

Disposal

In the circumstances discussed above the appeal does not succeed. It is accordingly ordered that;


The appeal be and is hereby dismissed with costs.
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