Winnet Nyabunze v ZIMRA & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/146/2021
HARARE, 28 JULY 2021
CASE NO LC/H/162/21
24 SEPTEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/146/2021

HARARE,  28 JULY  2021                     		        CASE NO LC/H/162/21

24  SEPTEMBER  2021

WINNET NYABUNZE				      APPLICANT

ZIMRA  						    1st   RESPONDENT

CATHRINE LAJI					    2nd RESPONDENT

Before the Honourable G. Musariri,  Judge:

For  Applicant			Mr  W, Nyabunze, Officer

For 1st Respondent		Mr T.L. Marange, Attorney

For 2nd Respondent		Mr N.P. Chinzou, Attorney

MUSARIRI, J:

On the 15th April 2021  Harare Applicant, as a Labour Officer, issued a ruling.  She ordered 1st Respondent (employer) to reinstate 2nd Respondent (employee) or pay her damages in lieu of reinstatement.  Apparently the employer did not comply.  Applicant then applied to this Court in terms of section 93(5a) of the Labour Act Chapter  28:01 for the confirmation of her ruling. The  employee supported the application whilst the employer opposed it.

The facts of the matter fall within a narrow compass.  The employer required its employees to declare their assets. The declaration was in an Asset Declaration Form.  The relevant form is filed of record.  The employee completed the form. However she did not include 3 properties being

Helensvale property stand Number 7 of stand 237.

Stand 307 Mainway Meadows, Waterfalls, and

Stand 3808 Mainway Meadows, Waterfalls.

The employee wrote a Memorandum dated 26 April 2018 to the Supervisor as follows:-

“,,It is true that I have not declared the said properties in any of the asset declaration forms that  I have availed to the organisation and do not intend to ever declare the said properties in any asset declaration forms. What is not in dispute is that the documents (Agreements of Sale) for the immovable properties are in my name where I am identified as the purchaser. That is where it ends. In dispute however is that I own the said properties.”

These were the salient facts that form the basis of the misconduct charge laid against the employee.  The charge was

“Deliberate misrepresentation of facts in the declaration of assets.”

The matter was referred to Applicant in terms of section 101(6) of the Labour Act. During the hearing before Applicant, the employee produced a Power of Attorney. The Power was purportedly executed by one Ali Manjengwa.  It authorised the employee and her husband to purchase and develop the 3 properties in question.

In her ruling Applicant opined that

“In this case, the document tabled by the claimant before the tribunal, is an authentic piece of evidence and what can be drawn from it is that the 3 immovable properties were purchased for and on behalf of the claimant’s brother in law. This tribunal is of the view that, the claimant did not commit any offence in as far as the declaration of the immovable properties is concerned.”

I agree with the employer that Applicant overlooked the precise requirements of the Declaration form.  The relevant column required the declaration of assets owned or purchased by the employee for and on behalf of child/spouse/other person. The underlining is for emphasis. It shows that what was in issue was not just ownership.  Assets purchased by the employee for 3rd parties had to be declared. Obviously that would enable the employer to check and verify the source of monies used by their employee in the transactions.

The production of a Power of Attorney authorizing the employee to purchase property on behalf of the 3rd party does not absolve her.  She was simply required to declare the assets. In fact she should have produced the Power during investigations by the employer.  That she did not do so, suggests that the document was drawn up as an after-thought.  The document is undated and does not appear to be properly authenticated.  There was no satisfactory

explanation why the original or clearer copies were not produced. Be that as it may, I consider that the matter does not turn on the contents of the Power. It turns on the contents of the asset declaration form.

The employee was required to declare the 3 properties.  She did not do so. The omission amounted to a fraudulent misrepresentation for which she was charged with misconduct.

I therefore conclude that Applicant erred in finding that the employee did not commit any offence. Accordingly Applicant’s ruling cannot be confirmed and needs be set aside.

Wherefore it is ordered that

The application for confirmation of ruling be and is hereby dismissed;

The Applicant’s ruling dated the 15th April 2021 is set aside, and

2nd Respondent is deemed as dismissed from employment by 1st Respondent with effect from the date of her suspension.

G MUSARIRI

J-U-D-G-E