Telone (Pvt) LTD V J Nyaguwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/529/2016
HARARE, 5 JULY 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/529/2016

HARARE, 5 JULY 2016			     	    CASE NO. LC/H/566/15

AND 9 SEPTEMBER 2016

In the matter between:-

TELONE (PVT) LTD					Appellant

And

J NYAGUWA							Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr J Dondo (Legal Practitioner)

For Respondent	Ms C Mahlangu (Legal Practitioner)

HOVE, J:

The appellant employed the respondent as a technical adviser.

The appellant charged the respondent with acts of misconduct, found him guilty and dismissed him.

The respondent appealed to the National hearing committee which reversed the decision to find him guilty and to dismiss him.

The appellant was aggrieved and it noted this appeal to this court.

The facts which lead to the dispute between the parties are that the appellant instructed the respondent through its client Services Chinhoyi on 10 September 2014 to put his home phone on incoming services only because it had accumulated a lot of arrears due to non payment.

The employer argued that Mr Nyaguwa did not follow that instruction.  His phone was to only receive incoming calls and he was to disable it from making calls.  He was alleged not to have followed the instruction and instead he continued to enjoy out going services i.e., he continued to make calls.  When auditors visited the Makuti Exchange on 3 October 2014 they tested the respondent’s phone and found that it was not disconnected and it was able to phone out.

After discovering that the phone was able to phone out, the auditors tested his meter and discovered that it was not stepping what this meant was that calls could be made but the meter would not step, that is the meter could not account for the calls made.  The auditors concluded that the meter had been tempered with so that one could phone and the meter would not record the calls.

The respondent was then charged for failing to follow instructions and also for tempering with the meter so that it would not step.

The respondent accepted that he had indeed got the instruction to disconnect his home phone and that of another of his colleagues on 9 September 2014.  He submitted that he had not disconnected his home phone on that day but he did disconnect on the following day the 10th of September 2014.  He submitted that his meter reading had moved from 49551 to 49563.  In other words it had stepped with 12 units.  He says this was because his family was not aware of the disconnection.  He then disconnected the phone. When the auditors came, they tested the meter and found that it was not stepping and further, they found that his phone had not been disconnected.  Respondent argues that he had disconnected it, he submitted that when it was tested by the auditors, he was not present.

The Regional hearing committee found him guilty of tempering with the meter and also of failing to obey the instruction.  He was dismissed.  The national hearing committee found him not guilty and reversed the decision of the regional hearing committee.

They reasoned as follows:

That there had been procedural irregularities in that the matter had taken too long to be concluded.  The code prescribed 14 days and although in practice the 14 days could be extended for good cause shown, no good cause had been shown in casu.  The provisions of the Code had been flouted.  They found merit in the procedural ground raised.

The national hearing committee also agreed with the respondent that the meter testing and reading ought to have been done in the respondent’s presence and not in his absence as had been done.  They reasoned that there was no evidence as to who had tempered with the meter.

The national hearing committee also found that the appellant had failed to prove that there was any prejudice suffered by the company.

They also found that there was no proof that the meter had been tempered with.

For these reasons, they found the appellant not guilty.

I will consider hereunder whether in so finding, they were correct.

Whether or not the National hearing committee ought to have found the respondent not guilty on the basis that there were procedural irregularities

The position of law in this regard is trite and the court does not intend to detain itself on this point.

It is not every procedural irregularity that vitiates proceedings.  There is need to show that the party concerned was prejudiced by the irregularity complained of Nyahuma v Barclays Bank (Pvt) Ltd 2005 (2) ZLR 435.

A party must therefore show that the irregularity was calculated to prejudice him in order for him to succeed in having the proceedings set aside on the basis of procedural irregularities.

The National hearing committee did not apply its mind to the issue of whether or not there had been prejudice suffered before allowing the irregularity to vitiate the proceedings.  The National hearing committee clearly misdirected itself in this regard.

Whether or not the meter reading ought to have been done in the respondent’s presence and whether or not there was no evidence as to who tempered with the meter.

Had these been criminal proceedings, one would have been tempted to agree that it would have proved beyond any reasonable doubt that the phone had not been disconnected and the meter was not stepping if these had been tested and found to be so in the presence of the respondent.  No reasonable doubt would have been left.  But these are civil proceedings

In finding facts and making inferences in civil cases, the committee could go upon a mere preponderance of probability.  Even though in so doing it would not exclude every reasonable doubt.

It is only in criminal cases were every fact material to establish guilt of the accused must, unless it is admitted be established by proof beyond a reasonable doubt and inferences from fact must, in order to be permissible, be such as to leave no reasonable doubt of their propriety and correctness.  This however is not so in civil cases where by balancing probabilities, the regional committee would be well within its rights to select a conclusion which seems to be the more natural or plausible a conclusion from amongst several conceivable ones.

Who among the auditors would have an interest in tempering with the meter to cause it not to step or what would be the motive, for the auditors to lie that the meter was not stepping? Why would the meter read 12 units when it ought to have been disconnected.  The person who stood to benefit was the respondent and the National hearing committee ought to have found that it was more natural and plausible that the meter had been tempered with and it was also more plausible that it was the respondent who tempered with the meter, as he stood to benefit.  The reading on the meter after he had been instructed to disconnect the phone was probably because he did not obey the instruction when the instructions come.  Further why would the auditors lie that the phone was not disconnected when in fact it was; on the basis of the authorities laid down in the Govan v Skidmore 1952 (1) SA 732, the probabilities were that the respondent was guilty.

Whether the appellant had failed to prove that there was prejudice suffered

Again the standard of proof is much lower than in criminal cases the standard is that of a balance of probabilities if the meter had been tempered with and was not stepping it means that the appellant was not charging for calls made when the meter would not step.  Prejudice would be suffered if calls were being made and not being charged.

In Zesa v Dera SC 79/98 the court held that it was common cause that in Labour matters the burden of proof is on a balance of probabilities and not proof beyond a reasonable doubt.

It is therefore clear that there National hearing committee misdirected itself in this regard as well.  The inferences made by the initial hearing committee were more supportable when one weighed or balanced the probabilities.

Whether there was proof that meter has been tempered with

The auditors and the loss control team stated that the meter had been tempered with.  That was evidence on record from the witnesses to prove that the meter had been tempered with.  The National hearing committee clearly ignored the evidence on record to this effect when they held that there was no evidence that the meter had been tempered with.

Any decision which cannot be supported in terms of the evidence is a clear misdirection.  It is an acceptable principle of law that findings of a court must be supported by the evidence.  See in this regard the case of Zimasco v Chema SC 38/07.

In the result the National hearing committee is found to have misdirected itself in coming to the conclusion that the appellant was not guilty of the charges he was facing.

Accordingly,

The following order is made:

The appeal is upheld.

The decision of the National hearing committee is set aside.

The decision of the regional hearing committee is upheld.

Each party will bear its own costs.

Dondo & Partners, appellant’s legal practitioners

Munyaradzi Gwisai & Partners, respondent’s legal practitioners