SC 30-15 - MUPANDASEKWA v GREEN MOTOR SERVICES (PRIVATE) LIMITED

DUNMORE     MUPANDASEKWA

v

GREEN     MOTOR     SERVICES    (PRIVATE)     LIMITED

                                                                                    

 

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, GOWORA JA & GUVAVA JA

HARARE, JULY 8, 2014 & JUNE 25, 2015

Advocate T. Magwaliba, for the appellant

Advocate F. Mahere, for the Respondent

 

GWAUNZA JA:       This is an appeal against the entire judgment of the Labour Court, handed down on 28 January 2011.

The facts of the matter are aptly summarised as follows in the respondent’s heads of argument: The appellant was employed as a Logistical Officer/Controller by the respondent. In December 2009, he was charged, found guilty and dismissed, on grounds of gross negligence and inefficiency that led to the respondent losing revenue.  He lodged an internal appeal on 4 January 2010, but it was not heard.  He then lodged a complaint with the Ministry of Labour, but the matter was not settled at conciliation, and it was referred to arbitration.  The arbitrator found that there had been irregularities in the hearing.  He ordered that the appellant be paid salary arrears and benefits to the date of his award, then determined the matter on the merits and upheld the dismissal.  The Appellant then appealed to the Labour Court, which dismissed his appeal. 

The appellant has now appealed to this Court. However Mr Magwaliba for the appellant concedes the point made by Ms Mahere for the respondent and confirms that the appellant has abandoned all of his grounds of appeal except the one that reads as follows;

“The Labour Court erred by holding that appellant had to show more than a possibility of bias whereas he had shown actual bias”

The allegation of bias was directed at the chairperson of the disciplinary authority before which the appellant appeared. The specific charge in respect of which the appellant was found guilty and dismissed was given as follows:

“It is also alleged that with/or without Great Milan’s Knowledge you filled a Bill of Entry (ZIMRA Form 24) using a different name, Giband.  This was against ZIMRA requirements, and is a case of fraud.”

The following facts are not in dispute.   The Bill Of Entry issued by the appellant indicated that the consignee was “Giband Industrial Company” and quoted their BP number as “0200077700”.  The goods involved belonged to a different customer called Great Milan, which was obliged to pay presumptive tax to ZIMRA upon the goods entering Zimbabwe.  Giband, on the other hand, was only obliged to pay VAT and not presumptive tax.  There was suspicion that the appellant was bribed by an official of Great Milan to facilitate its non-payment of presumptive tax through use of Giband’s name and BP number.  There was also strong suspicion that this was just a tip of the iceberg.

As already indicated, the only issue raised in this appeal is whether the arbitrator - and the Labour Court by upholding his decision - erred in dismissing the appellant’s allegations of bias and proceeded instead, to consider the merits of the dispute. The appellant argues that the chairperson of the disciplinary hearing, one Chioneso Muvandi was part of the team that investigated the offences allegedly committed by him.  As a result, she was not only “compromised” but clearly biased.  Evidence of this bias is given as an advertisement that she caused to be published in a newspaper, before the hearing, to the effect that the appellant was no longer employed by the respondent.  He argues that this was indicative of the chairperson having pre-judged the matter and that, as a consequence, there was no possibility of her being fair at all in the circumstances.  The appellant further argues that the chairperson demonstrated actual bias by, among other things, denying him an opportunity to cross examine the respondent’s witness who stood as the complainant. 

The court was referred to the case of Nyikadzino v Tsvangirai 2012 (1) ZLR 405 (II) at 410 E-F, in which the appellant avers the rule in respect of bias, interest in the cause and fairness is set out. The arbitrator found against the respondent in respect of his dismissal, even though he agreed that there were some irregularities in the proceedings.  The arbitrator’s   remedy for the irregularities alleged by the appellant was an order for the respondent to pay the appellant back pay and salaries. 

2015

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