Wencilas Bizeki v CAFCA Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/119/2024
HARARE, 7 MARCH, 2024
CASE NO LC/H/454/23
19 MARCH 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 7 MARCH, 2024

19 MARCH 2023

JUDGMENT NO LC/H/119/2024 CASE NO LC/H/454/23

WENCILAS BIZEKI	APPELLANT

CAFCA LIMITED	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- Mr A. Nyamukondiwa, Attorney

For Respondent	- Mr W. Magaya, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The triplicate grounds of appeal read as follows;

“1.	The charge which led to appellant’s dismissal was dealt with out of time in terms of CAFCA code of conduct time limit.

Appellant is not the one who did the job and allegations hereto are grossly misplaced.

There was no convincing evidence brought before the disciplinary committee nor the appeals authority to prove the alleged offense.”

The 1st ground is a ground for review rather than appeal. It is discounted on that basis. The remaining 2 grounds raise one (1) issue: - viz

Whether the appeals authority correctly upheld the guilty verdict returned by the disciplinary committee in light of the evidence led:

The Disciplinary Complaint Form defines the offence as “Dishonesty (e) False Evidence.” The particulars are set forth thus

“On the 6th September at Shrink Wrapper it was discovered that pallet number ZG 00106 was duplicated as this pallet number was used on 18 July 2022. You are denying the allegation of duplicating the pallet.”

The decision of the Disciplinary Committee (DC) reads

“7. We have deliberated as the Disciplinary Committee and we have found Wencilas Bizeki guilty of 7.5.4 Dishonesty, Theft, Fraud and other related matters clause (e) false evidence. The reason of arriving on this decision is due to the following;

The accused deliberately chose not to record 106 in the copper tracking book to cause confusion and on a balance of probability with the intention to depriving the company of the pallet 106.

You did not elevate to the team leaders that there was a pallet that was sitting at the Shrink Wrapper for 6 days.

This pallet missed at least 12 transfers. You had a period in the time in question that you were in the morning shift but you still did not do anything about this pallet. After having consulted the Code of Conduct the prescribed penalty for the charge is Dismissal.”

It is common cause that appellant was issued the bar code 106 on 18th July 2022. He claims he did not use it and does not know who did. Appellant relied on the Copper Tracking Book to show that the codes he was issued were also used by other Operators. That is apparent from the book which shows that of the orders 101 to 105 issued to appellant some were used by other Operators. However, the DC found that he used 106 but did not record it in the tracking book probably with view to stealing pallet 106.

The Court noted the definition of the offence in the relevant Code as

“Deliberately giving untrue erroneous or misleading information or testimony verbally or in writing.”

The DC found that appellant used code 106. There is no record of use of the code. Therefore, the DC must have relied on circumstantial evidence. The evidence before them was that appellant got codes 101-5 on 1st July 2022. On 18 July 2022 he got code 106. Yet he had not used code 105 which he only used on17 August 2022. Investigations showed code 106 was used on 18 July 2022 though not recorded. Who used it? That was the sixty-million-dollar question. The answer is provided by inferences from all the circumstances i.e. circumstantial evidence. Why else would appellant use 105 in August when he still had 106 from July? He must have used the 106 he got in July for him to be using 105 in August. That is the most likely scenario rather that the possibility that somebody else used 106. In other words, the DC’s finding that appellant used 106 is consistent with the circumstantial evidence. The Court is fortified in this view by the case of

Ebrahim v Pittman 1995(1) ZLR 176 Per Bartlett J at P 185 F

“I should point out that in another case referred to by Mr Gillespie… it was again emphasized that it is not necessary for a plaintiff invoking circumstantial evidence in a civil case to prove the inference which he asked the court to make as the only reasonable inference.

He will discharge the onus which rests on him when he has convinced the court that the inference, he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”

It therefore follows that the appeals authority correctly upheld the DC’s verdict. By logical extension the appeal to this Court against the appeals authority’s ruling ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall

J-U-D-G-E