5 July 2012

Zimbabwe: Meaningless Grounds of Appeal


Disgruntled employees think they can seek recourse through the Labour Court and just file their heads of argument, even if they are meaningless. This not only wastes the court officials' time, but also delays other genuine cases that need to be heard.

Ben Mukunzve worked for Delta Beverages when he was charged and convicted of an act of misconduct and negligence.

It was alleged that he had left a valve open and this had led to loss of gas. Mukunzve's appeal at the workplace was on four grounds, which were all dismissed.

He took the matter to the Labour Court where he raised ten grounds of appeal.

With due respect and deference, some of these grounds are not grounds of appeal at all. It is best to discuss each ground.

Ground No 1: "Mr Ben Mukunzve was called by his superior to be informed that when he knocked off duty on the morning of May 5, 2006 he left the valve open."

This is not a ground of appeal at all. It is just a statement of what could have happened and it is of no appeal value.

Ground No 2: "The investigations which were conducted reveal that the valve in question was not supposed to have been closed by Mr Ben Mukunzve."

This is a challenge on a finding of fact. It is indirect contrast to the evidence led and the admissions made by Mukunzve himself.

There is therefore no way in which it can be argued that the committee grossly misdirected itself on the outcome as compared to the evidence led.

It is the duty of the appellant to have gone on to demonstrate the gross misdirection.

No such misdirection was alleged and none is apparent. The ground has no merit at all. A finding of fact is not normally a ground of appeal.

Ground No 3: "Mr Ben Mukunzve had reported for duty on May 4, 2006 at around 1800 hrs.

"He worked the whole night and all the crew he was leading knocked off at 6 am on May 5, 2006. Ben remained because Mr Nyoni ordered that he was supposed to finish the syrup."

This is not a ground of appeal at all.

Ground No 4: "Ben was helped to finish his shift by most managers who were on duty that morning of May 5, 2006."

This again is not a ground of appeal. It is just a colourless statement. After being helped - if at all - the last duty for him was to close the gas.

Mukunzve did not do so, and that formed the charge of negligence.

Ground No 5: "At around 8:30 am, Ben was called by Mr Nyoni in the office and he was given a disciplinary determination and at 9:00 am he knocked off."

This is not a ground of appeal. It is a statement that has no relevance to the charge.

Ground No 6: "Most line managers and foremen remained working in the factory until they knocked off at 5:00 pm on May 5, 2006."

This is not a ground of appeal at all.

Ground No 7: "Mr B Mukunzve lost the gas in question and something beyond his control was the cause of the loss."

This is a challenge to a finding of fact. One has to go on and show that indeed from the evidence led it can be seen that the committee grossly erred. This was not done.

Ground No 8: "There was an audit report by the Engineer, which tells all that had taken place, but the report was not allowed to be read in the meeting by the Engineer Manumwa."

This is an allegation that evidence was deliberately held back. Mukunzve was free to call that evidence and not wait to blame the employer.

If it was important evidence to his case he could have asked for it and explain its relevance.

But from the record of proceedings, this audit was not on the failure to close the valve.

Mukunzve admitted that he did not close the valve.

There is no need for an audit on this. The statement is not a ground of appeal at all.

Ground No 9: "The production report reveals no loss of gas at all. The loss report is false."

This is an allegation, which requires one to give more details as per record, about this report. It would have been ventilated in the hearings at which stage an appellant is expected to refer the court to specific areas where the evidence is found in the record.

The conclusion would then be that in the light of all this evidence, the finding is misdirection.

We do not have any of this information supplied. The previous appeal stage had room to build this ground if there was anything in it.

That was not done. It is not possible at this stage to simply accept the statement as one that is the correct position.

That is not the way an appeal is argued or presented.

The appellant must show the gearing contradiction between the facts on record and the finding of fact.

It must be capricious.

Accordingly, the ground has to be dismissed.

Ground No 10: "Mr C Dongonda and Mr Chigumbu were the two officers responsible for CO2 usage, that is, opening and closing valves and this instruction were

produced at the hearing and the persons were rejecting that report."

This is clearly out of line with the evidence on record.

If this was the situation, one would expect to find the argument throughout the earlier stages of this case.

At this stage, we expect reference to where this evidence is found on record as to then conclude that the finding is at variance with the facts. That was not done.

It is easy to observe that this appeal looked half-hearted. After going through the record of all proceedings, one gets the impression that Mukunzve lacked the ability to represent himself and unfortunately he did not get proficient helpers.

As a result, we find him failing to put across the relevant evidence and concentrating on making allegations and statements that are not supported by evidence.

On the point raised earlier in the appeal that the chairman was the investigator, prosecutor and judge, the defence was that the code allowed it.

There is need to amend the code in this regard as one should not be policeman and judge at the same time.

That is a travesty of justice.

However, in the present case the evidence against Mukunzve is not tainted by this error.

The charge is proven by even the admission by Mukunzve himself.

However, it is not satisfactory that the dismissal penalty was the correct one.

The reasons for the penalty were not clearly stated for one to appreciate how exactly the penalty was arrived at.

In the result, Labour Court president Mr Custom Kachambwa dismissed the appeal by Mukunzve against conviction.

Mr Kachambwa set aside the dismissal penalty and referred the matter back for a consideration of appropriate penalty.

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