Tichaona Dube v Zimparks Wildlife Management Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/282/2024
HARARE, 21 MARCH 2024 & 1 JULY
CASE NO. R-LC/H/443/23
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 21 MARCH 2024 & 1 JULY

2024

In the matter between: -

TICHAONA DUBE

ZIMPARKS WILDLIFE MANAGEMENT AUTHORITY

Before the Honourable Kudya J

JUDGMENT NO LC/H/282/2024 CASE NO. R-LC/H/443/23

APPELLANT

RESPONDENT

For the Appellant	Makore Mavurere(Unionist)

For Respondent	Emilia Tendai Mandaza (Legal Practitioner) KUDYA, J:

This is an appeal against the decision of the respondent employer’s appeals committee which upheld the guilty verdict and the dismissal penalty which was meted out on the appellant by the disciplinary committee following allegations of fraud in breach of SI 124/23.

The background facts of the matter are that appellant who was in the respondent’s employment as a ranger did on 2 occasions under receipt money which was paid to him as fishing fees and entry fees yet the receipts book he was using was self-carbonated suggesting that same figures should have appeared on both the top and the bottom copies of the receipt. He was brought before a disciplinary committee which concluded that he was guilty and penalised him with dismissal. Aggrieved by his dismissal, he approached the appeals committee which confirmed the guilty verdict and the dismissal penalty. He is still of the view that he should not have been found guilty and penalised with dismissal. He has therefore appealed to this court against both the verdict and the penalty.

He has brought before the court appeal grounds which can be summarised as follows:

Ground 1

Minutes of the disciplinary hearing were not a correct record of what transpired at the hearing.

Ground 2

Appeals committee erred to confirm appellant’s guilty verdict in the face of the threats by his superior at the investigation stage which threats were heard on the audio in the appellant’s possession.

Ground 3

Appellant’s right to be heard was breached because he was not called to present his appeal physically before the appeals committee.

Ground 4

Appellant did not admit to the charges but committed a genuine mistake when he receipted the amount.

In the result he prayed that the court hears and determine the matter and that he be reinstated to his original position without loss of salary and benefits or that he be paid damages if reinstatement is no longer possible.

In response to the appeal the respondent maintained in limine that there are no proper appeal grounds on a point of law to the extent that there is no appeal before the court. On the merits it maintained the following;

Ground 1

This ground is disputed Appeals committee deliberated the minute’s issue and concluded that appellant was served with the minutes but he refused to sign them. In any event he suffered no prejudice vis the issue of the minutes.

Ground 2

The issue of the threats was deliberated but was found to have no foundation on the disposal of the matter. The matter was concluded on the basis of the available evidence.

Ground 3

Appeals committee was not obliged to call appellant to present his appeal. It was perfectly within its powers to determine the matter without calling the parties to appear before it.

Ground 4

Appellant’s guilt was well founded on evidence given the fact that he could not explain how 2 self-carbonated receipts could bear different amounts and he could not account for the under receipted money.

In the result the respondent prayed that the court concludes that there are no valid appeal grounds and that it dismisses the appeal as it is in its view frivolous and vexatious and it is apparent that appellant has no defence to the charges levelled against him. It further prays that the appeal be dismissed with costs on a higher scale.

In his heads of argument, the appellant made the point that he had alleged gross misdirection against the appeals committee to the extent that his appeal was validly before the court. He concluded further that there was no opposing draft order so in his view these was no valid opposition to the appeal. He also quizzed the respondent’s explanation about the delay in filing of its response which he says it attributed first to IECMS challenges and then later to absence of a case number on the paper. He finally stated that the threats were recorded and that they demonstrated that there was no procedural fairness on his dismissal. He also stated that the minutes were incorrect and that they did not bear his or his representative’s signature.

Appellant stated in the heads of argument that he remitted all the money to the employer and that the receipts which gave rise to the misconduct charges were manufactured by the respondent employer and that his signatures were forged on the same. In the ultimate he stated that the employer suffered no prejudice at all to the extent that his appeal should be allowed as prayed for. The respondent in its heads of argument was adamant that there was no point of the law worthy of determination by the court. It reasoned that the grounds were unclear and that

JUDGMENT NO. LCH/282/24

the factual findings are irrefutable. It concluded that there was no reason for the court to upset the trier of facts’ decision as there was no outrage on the factual findings. It stated also that at the appeals committee stage the appellant argued that he had not been given the minutes and that they were not signed yet before this court he was arguing that the minutes were an incorrect record of what transpired. It repeated that the alleged threats had no impact on the case.

In the result the respondent maintained that the appeal had to be dismissed both on the basis of the point in limine and on the merits. On the date of the hearing of the appeal the court asked the parties to address it both on the points in limine by each party at the same time with the merits of the appeal. For clarity of record however, the court will rule on all the points in limine attendant on the matter first and then proceed to determine the merits of the appeal strictu sensu.

Absence of opposing draft order

Under this head the employee had taken the point that the opposing affidavit on file was bad at law as it was not accompanied by an opposing draft order. When quizzed on the foundation of such an argument the employee could not point out to any. It is clear that the point is without any legal foundation both in the Labour Act or the rules and it should be dismissed with the impunity it deserves.

Imprecise and inconcise appeal grounds

Under this head the employer maintained that the employee failed to set out the appeal grounds with sufficient particularly to the extent that what the court was being called upon to do was to sift through the grounds to figure out exactly what the employee is unhappy about. For the test for clear and concise CPCA VS Kunonga SC646/15. A reading of the grounds demonstrate clearly that they were inelegantly crafted and that they posited more to be review grounds than appeal grounds. The court however concluded that since it appreciated what the appellant was unhappy about it could let the inelegance pass and proceed to rule on the meat of the grounds in question. In the result the court dismissed the point in limine vis the validity of the appeal grounds. Having concluded on the points in limine what was left to be ruled on were the merits of the appeal grounds in their inelegantly crafted form.

JUDGMENT NO. LC/H/282/24

Each of them is discussed below:

Ground 1

Under this ground it is clear from the record that the employee’s disquiet about the minutes is the recording of the same yet at the appeal’s committee stage his query was that he had not been favoured with the same and that he had not been given a chance to sign the same. It is settled that the appeal court cannot interfere with an issue which was not determined by the trier of fact See Chironda vs Swift. 1996(1)2CR 142(S)

In the case at hand it is clear that the new issue which appellant has brought up about the incorrect record of minutes was not an issue before the appeals committee to the extent that the court has no basis to conclude whether or not the appeals be correctly or wrongly decided the minute’s issue. In any event it is on record that appellant refused to sign for the minutes so it does not come as a surprise that such can be said to be unsigned. The court in conclusion is satisfied that this appeal ground has no merit and it should fail.

Ground 3

Under this ground appellant says his right to be heard was breached since he was not called to appear before the appeals committee to present his appeal. As stated earlier it is clear that appellant has mixed review and appeal grounds contrary to the spirit of the Labour Court Rules which states that he can bring the two separately. The court however did not take much issue with such as the argument that the right to be heard as a legal construct can be adjudged a point of law determinable in an appeal. That being as it may it is pertinent to observe that clause

11.3I of SI 124/23 states clearly that the appeals committee is not obliged to invite the parties for the appeal hearing. On that account there is no gross direction which can be said to have been committed by the appeal’s committee when it failed to call the parties to present themselves before it for the determinate of the appeal. This ground also lacking in merit should be dismissed.

Ground 2

The appellant commented that he was intimidated during the investigation of the matter and to that end he filed with the court a recording which demonstrated that one Tavashavira the

financial controller threatened Dube with dismissal and bragged that he had a record of firing people. In response to this ground the employer stated that the appeal’s committee had not found merit in the threat argument. The court’s view is that even if it were to be accepted that such threats did occur the question is how did they influence the outcome of the matter. It need be observed that the employee’s guilt was not birthed by his admission which he could claim could have been taunted by threats. It is clear that the guilt was birthed by the fact that 2 self- carbonated receipts issued by appellant contained conflicting information. In fact, it is interesting to note that in his heads of argument to this court appellant would want the court to believe that his employer manufactured the evidence of the receipts to cause him to lose his job. Nowhere in the hearing did he ever say such a thing. Even his new argument that he was a novice who could not write the receipts properly was not placed before the hearing committee. It is patently clear that the appellant was trying to build his case he went along. He has no cogent explanation as to how the same receipt number could bear the different information. The court is therefore not persuaded that the alleged threats had any basis in his dismissal. The ground of appeal being without merit should also fail.

Ground 4

As stated in ground 2 appellant tried to argue that he made a genuine mistake and that no loss was suffered by the employer but all this does not tally with what happened when he was found guilty. It is clear that the act spoke for itself that the self-carbonated receipts with different information were enough to find appellant guilty. There is therefore no misdirection that can be said to have bedevilled the appeal’s committee decision. The ground should also fail.

Costs

Respondent has prayed for costs on a higher scale but no clear motivation for the same was made. It need be observed that such scale is only reserved for exceptional cases. See Mahembe vs Matambo HC-B-13-03. In the case at hand the Matambo(Supra)level. has not been demonstrated. As such it is just and proper that each party be made to bear own costs. In the ultimate the appeal fails in its entirety with each party bearing own costs.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with each party bearing own costs

Chinogwenya and Zhangazha-Respondent’s Legal Practitioner