Tedious Wycliff v Autobrakes (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/94/21
HELD AT HARARE ON 18TH MAY, 2021
CASE NO. LC/H/24/20
JUDGMENT NO. LC/H/94/21
---------




IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/94/21

HELD AT HARARE ON 18TH MAY, 2021               CASE NO. LC/H/24/20

AND 16TH JULY, 2021				       X REF: LC/H/APP/330/20

In the matter between:-

TEDIOUS WYCLIFF						Appellant

And

AUTOBRAKES (PRIVATE) LIMITED				Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr. L.C. Ndoro (Legal Practitioner)

For Respondent    :	Ms. Tsungayi Chiminya (Legal Practitioner)

MHURI J.

Appellant was found guilty and dismissed from employment by Respondent’s Disciplinary Authority for having committed two acts of misconduct, namely –

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

and

theft or fraud or commits a crime involving dishonesty.”

The allegations were that on the 21st March, 2019 Appellant collected clutch and pressure plates from a customer outside Respondent’s premises and without the customer, proceeded with these items into the workshop and left them without a job card having been opened.  After the items were sorted, appellant was involved in having them taken out without payment having been made for the job done.

Aggrieved by the Disciplinary Authority’s decision, Appellant appealed to, firstlythe Appeals Authority and thereafter to the Appeals Committee of the National Employment Council but his appeals were unsuccessful.  He then noted this appeal on 7 grounds, 4 of which he abandoned (1, 3, 4 and 5) leaving grounds 2, 5 and 7 which are:

(2) 	The Appeals Committee erred at law in upholding the appellant’s dismissal when there was evidence enough to prove that the Appellant followed all the required procedures.

(5)	The Appeals Committee erred at law in upholding the Appellant’s dismissal when the Respondent was not in any way opposing the Appeal.

(7)	The Appeals Committee erred at law in upholding the dismissal when there was no evidence enough to prove that the Appellant had underhand dealings.

Appellant’s prayer, having abandoned the alternative prayer, was to have the Appeals Committee’s decision set aside and have appellant’s dismissal set aside, and that he be reinstated within 48 hours without loss of salary or benefits from the date of suspension.

To substantiate his grounds, Appellant’s submissions were that there was no evidence adduced at the disciplinary authority level proving that it was part of his job description to enter with a customer.  He submitted further that it was during lunch time when the customer came and every one had gone for lunch, as such there was no one to do the diagnosis, therefore there was no need to enter with the customer.  He also submitted that it was not his duty to open a job card but the foreman’s (Edward Bhodho) as such the issue of a job card not having been opened did not in any way suggest underhand dealings on his part as he is not the foreman.

Appellant’s position was that he followed all the procedures and therefore his appeal ought not to have been dismissed.

On the other hand Respondent’s submissions were that Appellant’s grounds are an attack on factual findings which findings cannot be lightly interfered with unless gross unreasonableness is shown.  It was also its submission that the burden of proof in such proceedings is on a balance of probabilities and this was satisfied.  Reliance was made on the cases of:-

BECKFORD vs BECKFORD 2009 (1) ZLR 27(S)

in which it was stated

“….. In any event an appellate court would not readily interfere with findings of fact made by a trial judge.”

TM SUPERMARKET vs MANGWIRO 2004 (1) ZLR 186 (S)

wherein it was stated

“And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that in contrary to the evidence actually presented.”

It was therefore Respondent’s submission that it was not shown that the finding of the Committee on the guilty of the appellant is grossly unreasonable in light of the evidence presented to it, as such the finding cannot be interfered with.

As submitted by Appellant’s legal practitioner, the appeals of Edward Bhodho under case No. LC/H/25/20 and that of appellant Tedious Wycliff LC/H/24/20 are intertwined.  The law applicable to both is the same, namely that an appellate court will not lightly interfere with the tribunal aquo’s factual findings unless it is shown that they are grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion.

This legal position was well established in the cases of:-

ZINWA  vs  MWOYOUNOTSWA  SC 28/15

and

HAMA  vs  NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S) at page 670 C-E.

On the basis of the evidence some of which was common cause, the Disciplinary Authority and the Appeals Authority found on a balance of probabilities that appellant indeed was involved in dishonesty dealings.  The Appeals Committee confirmed the findings that, indeed appellant took the customer’s items into the premises and left them unattended and did not call the foreman (E. Bhodho) to come and open a job card.

If appellant had entered into the premises with the customer, then the customer care cycle was not completed as appellant left him and the items unattended at the table as he went for lunch.

The customer’s hesitation to state who had brought in his items strongly pointed to the fact that he wanted to protect appellant.  Appellant’s submission lacked consistency and on a balance of probabilities appellant was guilty of dishonesty through his involvement in underhand dealings with a customer.

Considering the facts, evidence placed before the Disciplinary Authority and the Appeals Authority and their findings, I am of the view that the appellant has failed to show the gross unreasonableness of the Appeals Committee’s findings confirming the findings of the tribunal’s aquo.

It was during lunch time.  Appellant collected 2 items (pressure & clutch plates) from a customer from outside respondent’s premises and entered into the premises.  This is the same customer who came on the 18th March and returned with the condemned items on the promise that he would bring the 2 items to fit on the flywheel that he had left behind.  Appellant had the 2 marked by the security guard and according to the guard he was alone and not with the customer.  Appellant left the 2 items on the table unattended and without ensuring that the foreman opened a job card.  The next thing, the customer is intercepted on his way out with the items (fixed) but without any paperwork or proof that the items had been paid for.  At this juncture it was discovered that the job card had not been opened.  It was only after this interception that the manager directed that a job card be opened for all 3 items.  But for the alertness of the guard, the customer would have managed to take the items away without payment.  The Disciplinary Authority made the inference that on a balance of probabilities appellant was involved in underhand dealings with the customer.  Otherwise how would the customer have known that the items have been serviced and were ready for collection.

In view of the above, I find no basis for interfering with the Appeals Committee’s decision upholding the Disciplinary Authority’s and the Appeal Authority’s findings.  There is no gross unreasonableness in their findings and they came to the correct decision on the evidence before them.

In that regard the appeal fails.  It is therefore ordered that the appeal be and is hereby dismissed with costs.

THONDHLANGA & ASSOCIATES – Appellant’s legal practitioners

CHIMINYA & ASSOCIATES – Respondent’s practitioners