Taruona Muchena v Zimbabwe National Water Authority (ZINWA)

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/168/25
HELD AT HARARE 12TH FEBRUARY 2025
CASE NO. LC/H/1266/24
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 12TH FEBRUARY 2025
AND

In the matter between
TARUONA MUCHENA
And
ZIMBABWE NATIONAL WATER AUTHORITY
(ZINWA)

APPELLANT
RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPELLANT: B. MUDIWA
FOR THE RESPONDENT: MS L. CHARANGWA
With her S. Makwarmba

MAKAMURE J:
[1] This is an appeal from the decision made by the respondent’s Disciplinary Authority.

[2] The respondent dismissed the appellant from employment following disciplinary proceedings for: “Abuse, that is sexual harassment of any employee or other person at the workplace or during the course of business, for example making unwanted sexual advances, inappropriate and unwanted gestures or suggestions or hints of a sexual nature, unwelcome physical or verbal conduct of a sexual nature that denigrates or ridicules or is intimidatory or is generally abusive of such employee or other person because of his or her sex or gender”. This was a violation of s3.14 as read with s3.14.2 of the Zimbabwe National Water Authority Employment Code of Conduct and Grievance Handling Procedure, 2017.
[3] The appellant was aggrieved by that decision hence the present appeal.

The matter involved a lady who was subordinate to the appellant and the appellant. For the purposes of this judgment the lady will be referred to as the complainant or CZ. It is common cause that the appellant was the Human Resources Manager’s deputy. He handled human resources matters in the absence of the Human Resources Manager.

[4] When parties appeared before this Court the respondent raised preliminary issues regarding the propriety of the grounds of appeal which were 8 in all. After some discussions counsel for the appellant took the position that grounds1,2,3 and 7 would be addressed jointly as they basically dealt with the same issue of evidence. That effectively resolved the need to raise a preliminary issue. That left the appellant, with four grounds of appeal, namely, the sufficiency of evidence, the question of *res judicata*, prescription and the appropriate penalty.

[5] According to the complainant sometime in August 2016 she raised a complaint of sexual harassment against the appellant. The allegations were that the appellant touched or pinched the complainant’s buttocks and then made denigrating remarks about her. For the purposes of the rest of this judgment the manner in which the appellant is said to have touched the complainant as indicated above will be referred to as touching the complainant in an inappropriate manner. The circumstances as narrated by the complainant were that there was a funeral for the respondent’s Human Resources Manager’s (Mr Kweza’s) daughter at Glen Forest Memorial Park. One Mwarazi who also works for the respondent, had a vehicle, a single cab truck. The complainant asked for a lift in that vehicle and Mwarazi agreed to transport her together with the appellant. The appellant sat in the middle while the complainant sat close to the passenger door. When they arrived at Glen Forest, the complainant got out first through the passenger door. As she was disembarking from the vehicle that is when she says the appellant touched or pinched her in the inappropriate manner alleged and made some denigrating remarks about her. She says she was shocked by the appellant’s conduct. She reported the matter to lady colleagues the following day. A few days later she reported to the Human Resources Manager (HR Manager) (the same person whose daughter’s funeral the complainant and the appellant had attended). The appellant was called to the HR Manager’s office. Mwarazi was also called. After the HR Manager had heard the two the appellant apologized to the complainant. The HR Manager told the parties that the matter ‘should not leave’ his office.

[6] The appellant’s version is a vehement denial of the incident. His version is that one day he and Mwarazi were going to Sam Levy’s Village (which is a shopping mall) for lunch. The complaint asked for transport to go to the same place. Mwarazi agreed and they went. The complainant according to the appellant was sitting between him and Mwarazi. He denied abusing or harassing the complainant in any manner. He acknowledged being called to the HR Manager’s office back then and apologizing but says he apologized for any wrong that he may have said to the complainant during that meeting.

[7] Over the years and as a direct result of that incident the relationship between the two was eroded. The appellant vowed never to speak with the complainant. The complainant on the other hand continued to feel that the appellant continued to verbally abuse her by badmouthing her before colleagues.

[3] In 2024 the complainant had an altercation with a woman colleague. As a result of that altercation there was talk that disciplinary proceedings would be conducted against the complainant. She was surprised by that possibility and was disturbed and questioned why her assailant had not received any adverse report for having sexually harassed 8 years earlier and yet she had made a report to the same office but nothing was done about it. She then wrote to the respondent’s Chief Executive Officer as follows:

‘My name is (‘CZ’), and I have been in the Authority since 2009, am currently serving in the Commercial Department. I am writing to formerly(sic) raise my grievance regarding a series of incidents involving harassment and unfair treatment that have left me distressed and have negatively impacted on my ability to perform my duties effectively.

In August 2016 I was sexually harassed by the Human Resources Coordinator, Mr Muchena. This incident deeply affected me, undermining my dignity and confidence, especially as a married woman working in the same organization as my husband. I reported my case to the Human resources Manager Mr Kweza who eased an apology from Mr Muchena. However I was recommended not to disclose the incident to my husband to avoid potential conflicts which, which I initially accepted, believing it was a pragmatic approach.

Following this, my professional relationship with Mr Muchena deteriorated. He began ignoring me, and colleagues informed me that he was speaking ill of me labelling me a “lose woman”. Despite my repeated complaints to the Hr Manager, I was told not to worry and wait for things to settle. Over time, I learnt to endure the indirect insults and insinuations quietly, becoming a silent victim. I felt compelled to let the matter go, not fully aware of my rights or the appropriate avenues for seeking redress at that time.

Fortunately or unfortunately, the situation escalated recently. I have been summoned for a disciplinary hearing due to an altercation stemming from a rumour that was reportedly spread by Mr Muchena. Out of frustration and a desire to clarify the situation, I confronted the colleague involved, which led to a verbal exchange. Despite apologizing and resolving the issue with the colleague in the presence of the HR coordinators, I was informed that disciplinary action would proceed regardless.

I find it deeply concerning that while my harassment complaint was addressed with a mere apology, this matter is being pursued to the extent of a potential dismissal. It seems that Mr Kweza, who, oversaw my first complaint, is now treating with undue harshness, possibly in retaliation for my refusal to comply with inappropriate requests. He recently undressed me in front of other colleagues simply because I have failed to meet his unprofessional demands.

It has become plain that my original complaint has not been resolved fairly, and the actions of both Mr Muchena and Mr Kweza have created a hostile work environment for me. I have served this Organisation for 15 years, dedicating a significant portion of my life to Zinwa, and I feel that I am targeted and punished for circumstances beyond my control.

Writing this report has prompted me to recall quite a number of depressing memories. At one point in time, I came to a conclusion that it was my entire fault to have been harassed, but internally I felt a thorn in my flesh every day, I found solace in blaming myself for all these allegations. In many instances I found myself crying to think of how I could rectify my reputation with my colleagues as they (Hr) have tagged me beyond retrieval. Coming to work daily has become a nightmare Sir as I would think of the torture I would face simply because I have nowhere to go and I am a woman. I am thankful for this opportunity to be able to speak up.

My intention is not to bring down anyone down neither am I seeking revenge with my superiors, for a fact this was one of the most difficult write ups I have ever written, and I know upon this they will strike further. It is quite unfortunate that this is being done by the Human Resources department Leaders, not to mention of those who have found themselves in my predicament. It is in their nature to conceal matters that exposes (sic) their unprofessionalism and unfair practices. I am fully aware that they will have cases against me for their defense but at this moment am not worried anymore as I have already lost my dignity as a woman.

I kindly request your intervention Sir, to ensure that my current disciplinary case is managed with impartiality and fairness. I also seek a thorough review of how my harassment complaint was managed and the continued mistreatment I have faced as a result. My plea is simply justice, fairness and an opportunity to clear my name and restore my professional reputation. The mental and emotional toll of this ongoing situation has been severe, and I hope I find closure and a fair resolution that will allow me to continue contributing positively to the Authority.

I appreciate your time and attention to this matter and am hopeful for a just and equitable outcome.

Yours Sincerely,

(CZ)’ (My underlining.)

[4]Following the above formal complaint, investigations were conducted into the allegations. At the conclusion of the investigations, it was recommended that disciplinary proceedings be conducted against the appellant to enable full ventilation of the matter.

As already noted, disciplinary proceedings were conducted. During those proceedings both parties gave their respective sides of the story and also called witnesses.
 [5] The complainant’s evidence was as follows. (She broke down as she was giving evidence). Back in 2016 she asked for transport from Mr Mwarazi so she could attend the funeral of Mr Kweza’s daughter in Glen Forest Memorial Park. The vehicle was a single cab. In the vehicle was the appellant who sat in the middle, that is between the driver Mr Mwarazi and herself. She sat next to the passenger door. When they arrived, she alighted from the vehicle and as she was alighting, the appellant deliberately touched her in an inappropriate manner. She screamed but the appellant laughed and made a rude remark at her. She did not return from the cemetery with the two men saying she was in shock. Before this particular incident the appellant had pointed to her private parts and made a sexually coloured remark to her but then she had ignored him.

[6] After the incident at the cemetery she made a report to one Mrs Maphosa, who is now late, and a Ms Eve Marope. She later made a report to the Human Resources Manager, Mr Kweza (HR Manager). The report was oral. A few days after she had reported Mr Kweza called both the appellant and herself. Mr Kweza addressed both of them. She said at first the appellant refused until Mr Kweza told him to apologize. She also said she told him (the appellant) that as a father of girl children what happened to her could happen to them. The appellant then apologized in the presence of the HR Manager.

[7] She was asked why if this happened in 2016, she reported in 2024. Her response was that she had gone back to the HR Manager and reported that the appellant was saying a lot of bad things about her and calling her names but nothing happened. She also said that the appellant had made negative comments to colleagues about her transfers within the respondent organisation’s various departments. The influence that the appellant had on colleagues resulted in her confronting one Beatrice Mwashita who she said was “waiting” for her, that is Beatrice Mwashita anticipated the confrontation and was ready for it. The complainant said that Beatrice Mwashita insulted her.
 [8] After this confrontation, Beatrice Mwashita complained that the complainant had verbally attacked her and the complainant was called to HR. This resulted in the complainant facing disciplinary proceedings.

[9] The complaint felt that it was unfair for the appellant to discuss the complainant’s transfer with one of the cleaners. She said she intended to lodge a complaint with the respondent’s Integrity Committee but when she heard that the appellant was a member of that Integrity Committee, she decided against it and decided to take the matter to the CEO instead.

[10] The complainant told the Disciplinary Authority that she was bruised for a long time and that 8 years after the initial report she was still under attack. She felt that she was alone. When her husband indicated that he wanted to see the HR Manager she said she felt uncomfortable. She told the Disciplinary Authority that she still wanted justice. She also said that the situation got worse because people were accusing her of lying. She also said that the late Mrs Maphosa and Ms Marope had advised her against confronting the appellant. Asked about how she felt the complainant told the Disciplinary Authority that she was emotionally hurt and that this negatively affected her performance at work.

[11] The complainant said she was victimized and sometimes she would blame herself. She said that the appellant was against her and had influence since he was an HR person. She said she did a Media Diploma and the appellant had remarked that she would not complete the course. (She must have completed the diploma course for she said she kept the diploma at home).

[12] When it was suggested that the appellant said that the allegations were false and that she was trying to tarnish his image and embarrass him, she denied this saying that she had no reason to revenge for something that happened in 2016. The Disciplinary Authority told her of the appellant’s version that they went to Sam Levy Village and not to Glen Forest on the material day. The complainant denied knowledge of this suggestion saying that she never asked for a lift to go to Sam Levy’s but that she asked for a lift to go to Glen Forest. She was told that the appellant said that she should have reported to the respondent’s Gender Focal Person and she indicated that she had no knowledge of such a person then. She also stated that the HR department was biased and that her situation was not easy considering that both she and her husband worked for the respondent. She further stated that she thought that it was enough for her to have spoken about her situation with the late Mrs Maphosa, Ms Marope and the HR department.

[13] She also said that she had no reason to lie and that she was telling the truth. Under cross-examination she articulated the route which they followed on their way to Glen Forest that is they left the workplace then went to Highlands SDA Church and thereafter proceeded to Glen Forest. It was put to her that in her report to Mr Kweza she had said that they went to Sam Levy but she denied this and insisted that this happened at Glen Forest. She also confirmed that the appellant caused an altercation between Beatrice Mwashita and herself. She also confirmed after being asked by the appellant that he had tormented her for 8 years.

[14] The Disciplinary Authority also put some questions to her. She confirmed the various departments that she had worked in. She confirmed the various inappropriate expressions that the appellant had used to describe her like what he said when he touched her in the inappropriate manner at Glen Forest and how he used unprintable words to say that she lacked intelligence (a denigrating description of how she thought). She also said when she and the appellant appeared before Mr Kweza it was Mr Kweza who asked the appellant to apologize. She said she could not remember the appellant’s exact words and that she did not quite get the appellant’s explanation but that he said: ‘I am sorry for what I did.’
 [15]Ms Evelyn Marope was called as a witness. She told the Disciplinary Authority that the complainant told her that she had had a challenge with appellant the previous day. The challenge was that the appellant had touched her in an inappropriate manner. She said she did not like what happened and started crying. This was in 2016 and this was said when Ms Marope was in the company of late Mrs Maphosa. Ms Marope told the Disciplinary Authority that they consoled the complainant and advised her to report to the HR Manager. After being asked about a policy on sexual harassment she said she could not remember whether there was such a policy then. Under cross examination by the appellant she confirmed having also gone to Glen Forest on the material day. She also confirmed that the appellant used to say negative things of a sexual nature about the complainant and that he gave her a negative label for example saying that the complainant was a woman of loose morals.

[16]The Disciplinary Authority also asked her questions. She confirmed her evidence and said she only listened to what the complainant said and that it was a sensitive matter.

[17]After the complainant’s case was closed the appellant gave his side of the story. He said before the complaint raised the allegations against him his relationship with her was cordial. The rest of his version is as follows. Sometime in 2016 he and Mr Mwarazi set out to go for lunch at Sam Levy’s. On their way out the complainant asked to join them and she got into the car. She sat between him and Mwarazi. Some three weeks later he was called by the HR Manager. He went and when he got there, he found the complainant sitting in that office. The HR Manager then advised him about the allegations of touching the complainant inappropriately being made against him. He said he was angry and started fuming. He told the HR Manager about the trip to Sam Levy. He told the Disciplinary Authority that Mr Mwarazi was called by Mr Kweza and said he saw nothing. Thereafter, he apologized to the complainant for the bad things that he might have said. He said that as far as he was concerned, that was the end of the matter.

[18] On 23 July 2024 he and two colleagues visited a place called Kent on Integrity Committee business (respondent’s business). They were there for less than 5 minutes and they left. After they had left, he says the complainant went to the reception and inquired in the vernacular: ‘Muroyi aenda here?’ (loosely translated this means: Has the witch left?) The appellant went on to state that on that same day the complainant had a dispute with one Beatrice Mwashita. This matter was reported to the Administration Officer, one Angeline. Angeline reported the matter to the appellant. Appellant said he asked the said Angeline to counsel both the complainant and Beatrice Mwashita. The appellant said the complainant remarked that Angeline was too young to handle the matter and that she wanted to speak with Angeline’s principal. Angeline therefore referred the matter the HR manager but the HR Manager refused to entertain her. The HR Manager asked both the complainant and Beatrice to write reports. He also said that the complainant called a place called Sanyati Catchment asking for the code of conduct so that she could report a case of sexual harassment in order to fix the him (the appellant). The appellant told the Disciplinary Authority that the complainant “says a lot of things”.

[19] The above version shows that the appellant made reports about the complainant of things which happened during his absence. He reported as if he actually witnessed what complainant was doing or saying. For example, he says of the day that he and others went to Kent, ‘as soon as he had left, the complainant asked….’ The question is how did he know what the complainant said or did if he had already left the place? He went on to say that on that same day the complainant had a dispute with one Beatrice Mwashita. The dispute was brought to his attention and he then gave instructions on how the dispute was to be handled. This particular situation shows that the appellant was in a conflicted position. He was busy keeping track of what the complainant was up to. At the same time, he was the authority charged with resolving her problems. With respect to the particular dispute involving the complainant and Beatrice Mwashita, it was the appellant’s evidence that Mr Kweza had refused to entertain her (the complainant). As is common cause Mr Kweza was the HR Manager charged with handling employees’ problems. This particular situation confirms the complainant’s assertions that the appellant was saying bad things to colleagues about her and at the same time she had nowhere (neutral, that is) to go with her problems. That is why she doubted whether the disciplinary proceedings against her were going to be handled fairly.

[20] It must be noted therefore that the reason for her complaint was concerned with, firstly whether she was going to get any justice from the Human Resources Department at the expected disciplinary proceedings and secondly whether the respondent could review whether her sexual harassment complaint which occurred in 2016 had been fairly dealt with. This would in no way block disciplinary proceedings to be held against her. She simply wanted to be reassured about her situation.

[21] Under cross examination the appellant confirmed that before the allegations arose his relationship with the complainant was cordial. After the complaint he decided that she was a dangerous person and would never have anything to do with her. As such he had not spoken with her for 8 years. He said the complainant was dangerous because she fabricated things. He confirmed attending the funeral of Mr Kweza’s daughter. He had a vehicle at the time and went to attend the funeral in the company of one Nkomo and one Chari. He did not call these two for them to support this assertion though. He denied being in the company of Mwarazi on the day in question.

[22] In response to a question on how the allegations could just come from the blue, he insisted that he was not with the complainant on the day in question and he did not touch the complainant in the manner alleged and further stated that he had a wife who is equally endowed. When asked as to why he went mad before the HR Manager he said it was because he understood the gravity of the allegations. On the question of the witnesses who testified in support of the complainant he remarked that he doubted the truthfulness of the evidence saying “She chose a dead person and picked her friend for a witness.” He was asked why he did not cross examine Eve, the witness who gave evidence in support of the complainant and his response was that it was the issue of trust. He also said complainant wanted to revenge because she believed that he was behind the transfers that were happening to her. Asked why the complainant would target him out of more than 1000 men in the respondent organisation, he said it was because of her assumption on his role in her transfers and also because of the pending disciplinary case.

[23]Mr Martin Kweza came to testify in support of the appellant’s case. He stated that the 3 of them without disclosing the names of the three went to Sam Levy and that is “where it happened”. In my reading of his evidence, Mr Kweza did not explain what “it” was. He also stated that the complainant never came back to him again after that initial report. He also said he took 14days’ leave following the death of his daughter. Under cross examination he could not confirm or deny whether the allegations happened at Glen Forest or Sam Levy indicating that he could only comment on what he was told. He said the matter involving the complainant and the appellant was not the first case of sexual harassment that he had dealt with. His version of what the complainant told her was that three of them went to Sam Levy. She sat at the far end of the vehicle and that she did not like what had happened. The sitting arrangement as stated by Mr Kweza was different from what the appellant said. On the day that he called the parties, he also called Mr Mwarazi but Mr Mwarazi said he did not see anything. He said it was difficult to make a decision. He said there were some harsh words said by the appellant. He asked the appellant to apologize. He said that it was very sensitive as both parties had spouses working for the respondent. He said that **the issue should remain in his office.** This means that he decided that disciplinary proceedings were not necessary. He stated that that was the last time they spoke about the matter.

[24] Mr Kweza agreed that what took place in his office was not a hearing and that he was trying to manage a situation. He was not aware that the relationship between the appellant and the complainant had deteriorated. He said he was also not told of the appellant badmouthing the complainant. He told the Disciplinary Authority that he and appellant were very close and that their relationship was professional. He has known the appellant since 1996. Mr Kweza confirmed the complainant’s version that while in the motor vehicle she sat close to the door as opposed to the appellant’s version that she sat in the middle. (P46).

[25] Mr Kweza then confirmed that the complainant had been transferred on a number of times within the respondent organisation saying that there were ‘issues’ concerning her. When he was asked about pending disciplinary proceedings involving the complainant Mr Kweza confirmed that a complaint had been raised and that the complainant had initially refused to submit a report and that he had asked one Mrs Mhandu to institute disciplinary proceedings. Mr Kweza further stated that the appellant knew about the matter because he (Mr Kweza) had handed the matter over to the appellant when he (Mr Kweza) was going on leave.

[26] Mr Kweza also told the Disciplinary Authority the it was difficult to say why the complainant was enjoying a lot of impunity saying that the thrust at the respondent organisation was to rehabilitate individuals and that they want to give the complainant a chance. He also said that he had dealt with two cases of sexual harassment. He could not recall whether or not the trip to Sam Levy was before or after his daughter’s funeral. He confirmed about the allegations that the complainant said she had been touched while the appellant denied it. He also confirmed that the appellant said some harsh words but he thought that everything was back to normal. He said if the complainant had come back to him, he would have remembered. Mr Kweza said that the appellant did not have anything to do with transfers.

[27] The next witness for the appellant was Mr Lawrence Mwarazi. He Could not remember whether or not he went to Glen Forest together with the appellant and complainant. He then said they went to Sam Levy. He could not remember the sitting positions since a long time had passed. He said he did not witness the appellant touch the complainant in an inappropriate manner. Under cross examination Mwarazi said he could not recall whether the meeting in the HR manager’s office was before or after the Mr Kweza’s daughter’s funeral. He also said that Mr Kweza thought that there was no case.

[28] After assessing what was presented, the Disciplinary Authority found the two had travelled together. It found that there was no motive by the complainant to falsely accuse the appellant considering that before the incident, the relations between the two was cordial. Further the suggestion that the complainant falsely accused him in revenge for the disciplinary proceedings pending against her did not hold any water since the allegations against the appellant arose and were reported long before the said pending disciplinary proceedings. It found that the complainant had made a report promptly. This was corroborated by the evidence of Ms Marope. Further the appellant was not responsible for transferring the complainant and there was therefore no basis to suggest that she accused him of being responsible for the transfers resulting in her raising false allegations against him. It also found that found that the HR Manager Mr Kweza had failed to deal with the complaint against the appellant, back then. It also found that Mr Kweza’s evidence could not be relied on. The Disciplinary Authority found, on the other hand, that the complainant was a reliable witness who maintained her version. It also found that she was emotionally bruised by the appellant’s conduct. It found that Mwarazi’s evidence did not take the appellant case any further.

[29] In Court the appellant maintained his position as submitted in the heads of argument. He continued to deny committing the misconduct and asserting that the Disciplinary Authority erred as shown in the grounds of appeal.

[30] The respondent’s position was that while the incident occurred in 2016 the appellant had continued to harass the complainant, a married woman, suggesting that she was a person of loose morals. As such the appeal should fail.

[31] In considering the evidence, it appears that the complainant was consistent in her evidence. Her evidence was corroborated by Ms Marope. It was also corroborated by Mr Kweza regarding the sitting positions in the motor vehicle. It was further corroborated by the appellant himself. He had a long version of what the complainant is alleged to have said or done. While he said he vowed never to speak to her, he kept a close track of what she was doing or saying. It is not disputed that he made negative comments about her. These comments were unwelcome, inappropriate and of a sexual nature.

[32] In British American Tobacco Zimbabwe v Chibaya SC30/19 the Supreme Court stated that: ‘If evidence is such that, the tribunal can say “we think it more probable than not, the burden is discharged, but if the probabilities are equal it is not.” See also Nyahondo v Hokonya & Ors 1997 (2) ZLR 457; ZESA v Dera 1998 (1) ZLR 500 (S). In Nyarumbu v Sandvik Mining & Construction Zimbabwe (Private) Limited SC31/13 the Supreme Court stated that: ‘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 disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law.’

[33]In the present matter the complainant made a prompt report of sexual harassment back in 2016. The responsible person decided to silence the complainant. The assailant kept track of her. He continued to harass her. This created a toxic working environment for the complainant. The appellant was a senior person at work. In the absence of the Human Resources Manager, he ran that department or office. The complainant’s efforts to get a remedy fell on deaf ears. The fact that the appellant was a senior person who occasionally ran the department to do with employees’ complaints did not make it easy for the complainant. This is reflected by the appellant’s own detailed narration of how he knew the details of ‘who was saying what’ about the complainant. To make matters worse, he called her names or described the complainant to colleagues in derogatory terms which were of a sexual nature.

[34]The appellant raises the ground that there was insufficient evidence. However, most of issues were common cause. The appellant can therefore not say that there was no evidence. It was really a question of whose version was believable. The appellant was consistent from the beginning. Her evidence was corroborated. There did not appear to be any motive. There was a genuine concern of why her complaint which was one of sexual harassment did not receive the same attention as one of a verbal altercation. The Human Resources Manager, by his own admission decided to silence the complainant. While he denied that the complainant never came back to his office with the complaint, it is apparent from the evidence of the appellant that at one point the same HR Manager refused to entertain the complainant. The version of the appellant as shown above is sufficient proof that the complainant was sexually harassed. This continued over a long period. There was therefore sufficient evidence for the
 Disciplinary Authority to consider and come to a conclusion. There is therefore no merit in this ground.

[35] When regard is had to the above, it is clear that the complainant’s matter was never heard. It cannot be held to ever have been resolved. The plea of *res judicata* cannot under the circumstances be raised by the appellant. In order for the requirements of res judicata to be met it must be established that a) a matter is between the same parties; b) in respect of the same issues as are now sought to be brought before the court; c) was brought before a court of competent jurisdiction; and d) which court made its determination on that issue. **Farai Nigel Chitsinde and Nyasha Amanda Chitsinde v Stanny Musa and Another HH 274-2010.** In **Robert Dombodzvuku v CMED (Pvt) Ltd SC31/12** it was held that:

‘It is trite that in order for the special plea of res judicata to succeed it must be established that the judgment given in the prior action concerned the same parties: was founded on the same grounds and was between the same parties.’

[36] The parties herein never appeared before a court of competent jurisdiction. The HR Manager who received the report decided to silence the complainant instead of having the matter determined in terms of the appropriate procedure. This can not by any stretch of imagination be compared to appearing before a court of competent jurisdiction. The matter was therefore never resolved. There is no merit in this ground.

[37] Appellant raises the question of prescription. The complaint was made promptly and the efforts to have it resolved were fruitless. This means that the matter continued to be unresolved from 2016 until a proper disciplinary process was conducted. The matter was therefore not prescribed.

[38] The question of what the appropriate penalty should be was raised. This is the province of the employer. This is trite. **Tregers Plastics (Pvt) Ltd v Woodreck Sibanda & Anor**


SC22/12. In *Circle Cement v Chipo Nyawasha SC60/03* the Supreme Court held that once an employer took a serious view of a misconduct committed by an employee and considered that it went to the root of the employment contract and considered such to be a repudiation of the contract of employment punishable by dismissal, a penalty less than dismissal would not be available.

[39] The appellant also raised the question of violating of the rules of natural justice in how the appropriate penalty was arrived at. As already indicated, this is the province of the employer. The question is not one of only being heard, but of who decides what the penalty should be. Both parties were heard and the employer had to make a decision on what the appropriate penalty is. The employer found dismissal to be the appropriate penalty. This, the Court cannot interfere with (*Circle Cement (above)*). This means that there is no merit in this ground. In view of the foregoing, I find that there is no merit in all the grounds of appeal.

[40] In the face of the evidence presented before it, the Disciplinary Authority found that the complainant’s version was more reliable than that of the appellant. I agree. I think that I do not have to repeat the above. The complainant’s version has a ring of truth in it. The version of the appellant on the other hand, sounds difficult to believe. On the question of satisfying the essential the essential elements of the misconduct of sexual harassment as defined in the respondent’s code of conduct, the elements have been met. The facts show that the appellant touched the complainant in an inappropriate manner and made unwelcome denigrating comments of a sexual nature to the complainant. In *ZINWA v Mwoyoyunotsva SC 28/15* the Supreme Court at page 7 of the cyclostyled judgment had this to say:

‘[16] It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.’

In the present case I cannot say that the findings of the Disciplinary Authority were grossly unreasonable as envisaged in Mwoyounotsva (above).

[41]Having found no merit in all the grounds of appeal, I find that the appellant has failed to prove his case on a balance of probabilities. In the result I find that there is no error or misdirection on the part of the Disciplinary Authority. There is no need to interfere with its decision. The appeal fails.

Accordingly, it is ordered that:

The appeal be and is hereby dismissed with costs.

MESSERS RUFU MAKONI LEGAL PRACTITIONERS, APPELLANT’S LEGAL PRACTIONERS.

MUVINGI &MUGADZA, RESPONDENT’S LEGAL PRACTITIONERS.
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