ZINWA

v

JOSEPH MWOYOUNOTSVA

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GWAUNZA JA & HLATSHWAYO JA

HARARE, JUNE 5, 2014 & JUNE 23, 2015

J Dondo, for the appellant

The respondent in person

ZIYAMBI JA

[1]     This is an appeal from a judgment of the Labour Court (KACHAMBWA P) which upheld an arbitral ward against the appellant.  It is the appellant’s contention that the Arbitrator sitting as an appeal court erred in law when it interfered with findings of fact made by the Disciplinary Committee of the appellant and that the Labour Court similarly erred in upholding the award.

THE BACKGROUND TO THE APPEAL

[2]    The respondent was employed by the appellant (alternatively referred to as “the Authority”) as an accountant.  On 5 January 2011 he appeared before a disciplinary hearing of the appellant on two charges of misconduct, the first being that he had committed an act or conduct inconsistent with the terms of his contract of employment as provided in s 4 (a) of the Labour Employment Code of Conduct; and the second being a violation of s 4(d) of the Code: theft or fraud.  The charges arose from the following events.

[3]   On 29 May 2009, as part of his conditions of employment, the respondent signed a document entitled: ZIMBABWE NATIONAL WATER AUTHORITY: CONDITIONS OF USE OF AUTHORITY VEHICLES. Of relevance are the following clauses:

Clause 3: The vehicle shall not be used after 19.00hours during weekdays, during weekends and holidays except while on official duty for which written approval will have been issued by my Head of Catchment Department.

Clause 9.0: I will not tamper with or attempt to have the vehicle that has been involved in an accident repaired without the prior consent of management.

Clause 10:  Any breach of these Conditions of use of an authority vehicle will constitute a breach of my contract of employment which may lead to such disciplinary action as the offence warrants.