Zimpost v John Makombe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/738/16
HELD AT HARARE 11 OCTOBER 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/738/16

HELD AT HARARE 11 OCTOBER 2016			CASE NO LC/H/56/16

& 18 NOVEMBER 2016

In the matter between:

ZIMPOST					Appellant

And

JOHN MAKOMBE				Respondent

Before The Honourable Kudya, J

For Appellant		C Kwaramba (Legal Practitioner)

For Respondent		V Mazhetese (Legal Practitioner)

KUDYA J:

This matter was set down as a n appeal at the instance of the appellant employer against the decision of the appellant’s internal National Hearing Committee (herein after referred to as NHC).

The NHC had entertained an appeal by the respondent employee against the decision of the Regional Hearing Committee (RHC) which had found him guilty of abusing his office by soliciting and accepting a bribe from a company (Chovu Chovu) that was supplying Zimbabwe Flags to Zimpost where he was employed.  He was thus said to have contravened category 3 (8) (iv) and 4 (17) of the Zimpost Code of Conduct.  The respondent had in turn counter-appealed against the NHC’s decision where it had held that the RHC had faulted procedure by entertaining the dispute in the presence of a lawyer yet the Code did not make provision for such presence.

The NHC had gone ahead and ordered that the RHC hears the matter de novo taking into account the irregularity about the lawyers’ presence.  Essentially both the employer and the employee had been offended by the NHC decision as it sought to address procedural niceties which neither party had raised yet failed to deal with the substantive issues which had been placed before it.

On the set down date at the Labour Court the parties agreed that indeed the NHC had erred and its decision had to be set aside.  The parties on 14 July 2016 therefore agreed that the NHC decision be set aside by consent and that the appeal which had been lodged with it be heard de novo.

The parties were also in agreement that no purpose would be served by directing that the matter be entertained by the NHC taking into account the error it had just made.  It was finally agreed that the labour appeal court be asked to deal with the appeal de novo in the wider sense looking particularly at the issues which had been interrogated by the RHC and to determine whether decisions on them were sound or not.

In the result the appeal court ordered by consent that the NHC decision be set aside and that the labour appeal court hears the matter afresh.  It is the de novo hearing which is the subject of this judgment.

It is worth noting that the parties incorporated the appeal grounds to the NHC to be the grounds to be effectively determined by this court.  Within these grounds points were in limine by the employer speaking to the point of fact – law debate.  Such points were however dropped so that the matter could be resolved on the merits.  The dropping of these technical points resulted in the court concluding that deciding such points would only be academic and no purpose would be served by such an exercise.  The net effect of the above approach was that all that this court was called upon was to decide 2 main issues that is sufficiency of evidence to found the conviction and propriety of the dismissal penalty in the wake of mitigation and aggravation on the matter.  The court will therefore primarily address these 2 points only.

Sufficiency of evidence

It was argued on the employee’s behalf that his conviction was not supported by sufficient evidence.  The main argument was that the witnesses who gave evidence about the bribery contradicted themselves on the exact figures which allegedly passed hands between the parties.  The employee also suggested that the witnesses were making up the story for no apparent reason.

On the other hand the employer was adamant that the employee’s guilt had been proven.  It argued that the basis for this conclusion emanated from the graphic and detailed account given by the  Chovu Chovu family of how the kick-backs were given to the employer.  Of particular note were the intricate details about the date, venue and phone calls made between the parties.

All those were said to have demonstrated the fact that the parties had had some kind of discourse together.   It is settled law that appellate court can only interfere with factual findings where it is demonstrated that such reveal a serious misdirection on the trier of facts part  Nyahondo Hokonya & Others 1997 (2) ZLR 475 (SC).

A reading of the proceedings by the RHC demonstrate that the Chovu Chovu witnesses, in particular the mother gave a detailed account of her dealings with the employee.  She explained out clearly that her errors on the exact figures which passed hands was the fact that the events in question took place at a time when she had just lost her husband.  In any event no cogent reason was advanced by the employee as to why the Chovu Chovus would want to falsely implicate him.

He was not dealing with the Chovu Chovu only in his line of duty so there was no cogent reason only they would account him to lose his job.  On the other hand the employee was adamant that since there was no clear sync of the exact figures which passed hands and as to who handed over same from who it meant that he was not guilty.  The law is clear that standard of proof in labour disputes is proof on a balance of probabilities (See ZESA v Dera SC-79-08.

The cumulative effect of the evidence led on the matter point towards the employee’s guilt.  The court has to reason to want to interfere with the RHC’s exercise of its discretion.  This ground therefore lacking in merit should fail.

Penalty

It has been stated countless times that penalty is at the discretion of the employer.  See Innscor v Chimoto SC-6-12 .  In the case at stake what was in issue were corruption allegations.   It would be fool hardy for the appeal court to say that the employee should have been persuaded by the 23 year track record to depart from dismissing him.  It is clear that the employer took a serious view of the infraction hence the dismissal.  See Nyawasha v Circle Cement SC-60-03.

Since the offence served the employer employee trust the appeal court has no basis to ask that the penalty TO be vacated.  In the ultimate it is clear that the penalty was well placed and the appeal by the employee cannot succeed on this account.

IT IS ORDERED THAT

By consent the appeal against the National Hearing Committee be and is hereby allowed.  The NHC decision is set aside and in its place the Labour Court has to hear de novo on the merits the matter which was before the RHC.

The decision of the RHC being well placed intact and at law be and is hereby upheld.  The employee’s dismissal is accordingly confirmed.

Each party to bear own costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Mazhetese & Partners, respondent’s legal practitioners