Labour Court order reinstatement of Zimra employee

Bulawayo Labour Court judge Justice Moya-Matshanga has reinstated an employee who was two years ago dismissed by his employer, the Zimbabwe Revenue Authority (ZIMRA) for taking annotated statutes into an examination room, a practice that is prohibited by the employer in terms of its standing instruction.

The Worker reported that Alphaeus Makhado who was employed as a revenue trainee appealed against the decision to expel him by his employer.

He was suspended on the September 23 2013 and was then subsequently charged with carrying out an act, which is inconsistent with the express or implied conditions of the contract of employment. (D 25 charge).

Makhado was subsequently arraigned before a disciplinary committee, and discharged after a hearing.

On his grounds of appeal Makhado said the appeals committee grossly misdirected itself both at law and in fact in that it did not consider that the appellant is the one who alerted the invigilator by sighing indicating that he had noted that the reference books he was about to use in an examination had some markings.

"The respondent became overzealous and rushed to conclude that the appellant was intending to check without any basis at law. Critical to note is the fact that a person is supposed to be clearly aware of the act which is being carried out. In this case the appellant was not aware that he had been given marked books of reference," he said.

Makhado added: "It is common cause that if the trainers (invigilators) had found the appellant doing anything covered by this provisions they were going to disqualify him. It must be noted that trainers are the custodians of the training centre standing instructions and thus it Exam cheating taxman reinstated follows that they do understand it thoroughly. Please take note that appellant was allowed to proceed with the examination and wrote other subsequent examination papers after the alleged misconduct."

He raised a plethora of issues in which he argued the appeals committee erred and grossly misdirected themselves in basing their verdict and penalty on assumed cheating instead of possession of marked books.

In her ruling Justice Moya Matshanga said there were no valid reasons for the termination of employment.

"I say so because the whole case hinges on whether he cheated or not. In my view there is no evidence of cheating," she said.

"It was not proved. The notes in the reference book can hardly be with any stretch of the imagination be given the status of course notes. They are not. Had the student been answering a question relating to that particular page, it would have been a different story; it however turned out to be irrelevant.

"In the circumstances I do not think the employer should have charged him at all. In the result I do hereby set aside the dismissal and order as follows: The appeal be and is hereby upheld."

Justice Matshanga further ordered the respondent to release the examination result of the appellant as well as reinstating the appellant to his former position without loss of salary and benefits.

"Where reinstatement is no longer an option, the respondent is hereby ordered to pay the appellant damages in lieu of reinstatement, the quantum of which the parties are supposed to agree. In the event that the parties fail to agree on the said quantum of damages, they are to approach the court for quantification."

The respondent was also ordered to pay the costs of the appeal.