Sheunopa Ruwanza v Silo Food Industries Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/98/2023
HARARE 27 MARCH, 2023
CASE NO LC/H/1051/22
31 MARCH 2023
SHEUNOPA RUWANZA
APPELLANT
SILO FOOD INDUSTRIES LTD
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/98/2023

HARARE  27 MARCH, 2023

CASE NO LC/H/1051/22

31 MARCH 2023

SHEUNOPA RUWANZA

APPELLANT

SILO FOOD INDUSTRIES LTD

RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant    Mr M. Nkomo, Attorney

For Respondent    Mr N. Chidembo, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal is provided for in terms of section 92 D of the Labour Act Chapter 28:01. The grounds of appeal were initially eight-fold. Upon challenge by Respondent the Court struck out half of the grounds leaving the following four grounds,

“(c) The Appeals Officer erred and misdirected himself in at law when held that the evidence led by the complainant and collaborating witness statements and communication records supported the charge of sexual harassment when in actual fact, the disciplinary authority used a wrong and unlawful standard of proof to weigh the evidence of the witnesses, especially the complainant.

(e) The Appeals Officer erred and misdirected himself at law when he failed to find that the disciplinary hearing authority was wrong when it based its determination on an allegation that appellant forced his entry into complainant’s room, when such allegation was never supported by any evidence.

(f) The Appeals Officer further erred and misdirected himself when he turned a blind eye to the fact the disciplinary authority erred in relying on uncorroborated and un-verified evidence by complainant who clearly had every motive to frame and trap the appellant in order to fix him for exposing her shortcomings at work and merely endorsed the findings of the disciplinary hearing authority.

(h) The Appeals Officer fell into grave error by endorsing the disciplinary authority’s error and misdirection of disregarding the appellant’s mitigation and imposing a sentence of dismissal without showing it had found other disciplinary measures prescribed by law to be inappropriate in the circumstances.”

On the basis of these grounds appellant prayed that his dismissal be set aside and he be either reinstated or paid damages for loss of employment.

The grounds of appeal raise basically 3(three) issues which will be dealt with in turn. The Appeals Officer upheld the determination of the disciplinary authority. Therefore, this judgment focuses on the latter’s findings and conclusions.

1. Whether the Disciplinary Authority applied the wrong standard of proof

The disciplinary authority concluded its findings and analysis thus;

“17. It is the Disciplinary Authority’s finding that the evidence led by the complainant was sufficient and credible. It is fairly probable that the alleged offender sexually harassed Ms Matubu. Such conduct is not acceptable with the Silo Food Industries Limited and is inconsistent with the fulfilment of the express or implied conditions of his contract.”

It is clear that the authority used the balance of probabilities standard in assessing the evidence. Appellant argued that the correct standard should have been proof beyond reasonable doubt. Why, because the charge connoted criminal conduct. In support of the argument appellant cited cases where the courts used the reasonable doubt standard in matters involving attorneys charged with misconduct for breach of their professional code. The cases are distinguishable because the present case involved breach of an employment contract. It had nothing to do with a professional code of ethics. The applicable law was laid down in the case of ZESA v Dera 1998 (1) ZLR 500 (S) where McNALLY JA noted with approval, thus (p503)

“Joubert The Law of South Africa Vol 9 para 573 at p 340 says equally unequivocally: In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

It is therefore clear that the disciplinary authority applied the correct standard of proof.

2. Whether there was credible evidence of appellant’s guilt:

The conclusion by the disciplinary authority quoted above showed that it was impressed by the complainant’s evidence. The evidence showed that the harassment started as verbal requests to meet outside working hours which persisted despite rebuff. The harassment then turned physical on the trip to Bulawayo for the trade fair. The following excerpt of complainant’s evidence is apposite,

“So, whilst he was standing by the door and I was inside my room he tried to get into my room, as big as he is, he could easily push me aside. Vakabva vapusha kupinda mu room mangu ini ndichibudawo panze at the same time. Vakapinda mu room vakatora phone yangu from the bed. By then I was standing outside. He then called me back inside so that we could watch together. I kept refusing to. He then touched my hand using his right hand and pulled me. He pulled me hard and I resisted. In resisting I twisted my hand that is when he let me go and I moved to stand at a distance.”

The above excerpt shows the culmination of the harassment that appellant subjected complainant to. He evidently wanted a relationship with her but she didn’t want. He then sought to impose himself on her. I consider that the disciplinary authority correctly found the appellant guilty of sexual harassment. The argument that appellant’s conduct was non-sexual is just a cynical denial. The totality of the circumstances shows a male boss imposing himself upon a female junior in circumstances where the more likely conclusion is one of sexual harassment. All the arguments that the witnesses did not corroborate complainant do not avail. In civil proceedings a tribunal can convict on the basis of the evidence of a single but credible witness. See, section 52 of the Civil Evidence Act Chapter 8:01 which provides that,

“Subject to any other law, a court may make a finding and base its decision on the evidence of a single competent and credible witness.”


I am satisfied that there was competent and credible evidence against appellant.

3. Whether the penalty of dismissal was appropriate

Appellant argued that the disciplinary authority improperly failed to consider a lesser penalty. It was argued that punishment should in the first instance be aimed at reforming the offender. This flies in the face of appellant’s attitude in denying his guilt. How can he be reformed or corrected if he does not acknowledge his guilt? The argument further flies in the face of hallowed case precedents like the case of MTC v Mutangadura 2012(1) ZLR 183 (S) where ZIYAMBI JA at 186 B stated;

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion ….”

Sexual harassment is a serious offence which violates the person and dignity of the victim. It is aggravated in casu by the fact that appellant abused his senior position to victimise his junior for his aggrandisement. It was well within the employer’s discretion to impose the penalty of dismissal.

Conclusion

The foregoing analysis of the disciplinary authority’s determination show that the Appeals Officer correctly upheld the determination. Thus, there is no basis upon which this Court can interfere with the Appeals Officer’s decision.

Wherefore it is ordered that,

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E
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