Court name
Supreme Court of Zimbabwe
Case number
SC 41 of 2002
Civil Appeal 179 of 2001

Maadza v Air Zimbabwe (Pvt) Ltd. (79/01) (SC 41 of 2002, Civil Appeal 179 of 2001) [2002] ZWSC 41 (05 June 2002);

Law report citations
Media neutral citation
[2002] ZWSC 41


DISTRIBUTABLE (34)

















Judgment
No S.C. 41\2002


Civil
Appeal No 179\01

















VHUKANI
MAADZA v AIR ZIMBABWE (PRIVATE) LIMITED











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & MALABA JA


HARARE
MAY 7 & JUNE 6, 2002








The
appellant in person





D.M.
Foroma
,
for the respondent








MALABA JA:
The appellant was employed by the respondent as an accounting
officer. On 30 September 1999 he got to work late
at 8.30 am. The
official time at which he should have got to work was 8 am. The
respondent kept a register, at the security gate,
in which employees
who arrived at work late recorded their names and employment numbers.
Instead of writing his true name and employment
number 037515 in
the register, the appellant wrote that a person by the name “V.
Mhlanga” whose employment number was 039475
had got to work late.





The
information the appellant wrote in the register was clearly false.
His fraudulent conduct was discovered by a security guard
later in
the day. A report was made to the appellant’s supervisor who
caused him to submit a written explanation on the conduct.
The
appellant submitted a report in which he admitted what he had done
and said he was very sorry for it.





On 8 October
he was brought before an investigation panel to answer a charge of
having committed an offence under paragraph 4(a)
of Part 5 of the
Schedule to the respondent’s employment Code of Conduct (“the
Code”). The allegation was that he had committed
the offence of
falsification of information. The offences listed in paragraph 4(a)
of Part 5 of the Code are:-





“… forgery
or falsifying of any signature, document or information.”









The
appellant admitted committing the acts charged against him. He was
given the opportunity to give reasons for what he did.
He said he
was under some mental depression. He did not say that he did not
know what he was doing. The investigation panel
found that the
appellant had deliberately falsified the information he wrote in the
register with the intention of misleading the
employer into believing
that he had got to work on time. They found that he had committed
the offence charged, that is to say,
falsification of information and
recommended to the Disciplinary Committee that he be dismissed from
work.






The
appellant appeared before the Disciplinary Committee on 11 November
and the charge of committing the offence of falsification
of
information was again put to him. Having admitted the acts charged
against him and given the chance to explain his conduct,
the
appellant again said he was suffering from a mental depression.
Members of the Disciplinary Committee investigated the matter
much
more closely but still found that he had deliberately falsified the
information he wrote in the register in order to mislead
the employer
into believing that he had not arrived late at work.






The
Disciplinary Committee found that he had committed the offence
charged. It looked into the question of whether there were
circumstances that could persuade it to impose a penalty other than
dismissal notwithstanding the fact that under the Code committing
a
Part 5 offence warranted termination of the contract of employment.
The Disciplinary Committee found that the appellant’s conduct
was
aggravated by dishonesty. It was gross misconduct inconsistent with
the continuance of a contract of employment. He was dismissed
from
work.





The
appeal to the General Manager of the respondent was unsuccessful.
So was the appeal to the Labour Relations Tribunal (“the
Tribunal”). Although one of the grounds of appeal to the Tribunal
was that what the appellant was found by the Disciplinary Committee
to have done was not covered by the offence he was charged with, it
was not relied upon when the appeal was argued before the Tribunal.

The Tribunal proceeded on the basis that the appellant acknowledged
that he had been properly charged with the breach of paragraph
4(a)
of Part 5 of the Code and found guilty.





The
learned Chairman of the Tribunal said at p 2 of the judgment:-





“The
appellant eventually acknowledged and admitted his guilt. He
nevertheless argued that he was not liable to dismissal because
there
were strong mitigating factors in his case.






The
mitigating factors which he advanced were that he had worked for the
respondent for 15 years. He also said that he used to put
in a lot
of overtime work without being paid.





The
mitigating factors advanced by the appellant do not, in my view,
carry sufficient weight to avoid dismissal where one is facing
an
allegation of dishonesty. The longer an employee stays with one
employer the more reliable he is expected to be … On the
basis of
such observation, I come to the conclusion that there is absolutely
no merit in this appeal.”








The appeal
to the Tribunal was dismissed with no order as to costs. The
appellant brought the decision of the Tribunal on appeal
to this
Court on the frivolous ground that the conduct he was found to have
committed was not covered by the offence of falsification
of
information under paragraph 4(a) of Part 5 of the Code. The
appellant abandoned this submission as a ground of appeal to the
Tribunal. He had accepted the fact that he had been correctly
charged with the commission of the offence of falsification of
information
under paragraph 4(a) of Part 5 of the Code. The
Tribunal did not have cause to consider the propriety or otherwise of
the charge
preferred against the appellant. Strictly speaking there
was no ground of appeal against the decision of the Tribunal.






It is clear,
however, that what the appellant did on 30 September 1999 constituted
the offence of falsification of information.
He deliberately wrote
in the register false information about his identity as the
respondent’s employee. He was falsifying
information on the name
and staff number by which he was known to his employer. He was, in
my view, properly charged with the offence
under paragraph 4(a) of
Part 5 of the Code. The appeal is without merit.





The
respondent indicated that it would not insist on an order of costs in
its favour in the event of the appeal being dismissed.





The
appeal is dismissed with no order as to costs.











CHIDYAUSIKU
CJ: I agree











SANDURA
JA: I agree












Sawyer &
Mkushi
,
respondent's legal practitioners