Sithole, a
revenue officer accused of using his official email account to circulate
pornographic material, saw his appeal against dismissal crash and burn in a
judgment handed down last week on Wednesday.
The ruling,
delivered by Justice Alfas Chitakunye, overturned prior decisions by the Labour
Court and the National Employment Council’s Designated Agent (DA), both of
which had sided with Sithole’s claims that his email account was hacked.
But the Supreme
Court would have none of it.
With
razor-sharp clarity, Justice Chitakunye declared, “The evidence clearly
established that the offending emails were found in the respondent’s account,
and his claims of hacking remained mere speculation.”
The case dates
back to 2010, when ZIMRA’s ICT division stumbled upon something far more
troubling than mere connectivity problems.
While
investigating sluggish internet speeds, the team uncovered an embarrassing
truth: employees were using corporate email accounts to circulate pornographic
material, clogging the system with obscene content.
Among the
culprits was Sithole, whose email account was traced to 13 inappropriate
emails.
Suspended in
January 2011, Sithole vehemently denied the allegations, accusing ZIMRA
management of fabricating evidence to stifle his union activism.
But ZIMRA’s
witness testimony painted a starkly different picture. ICT Manager, a Mr
Mazhindu testified that Sithole’s account had been securely archived in
tamper-proof PST files, dismissing any possibility of hacking.
He also pointed
to ZIMRA’s rigorous password protocols, which, he argued, made unauthorised
access nearly impossible. Sithole, however, failed to explain why he never
noticed any suspicious activity in his account during the nine months the
emails were sent.
Initially,
Sithole found reprieve when the DA acquitted him, suggesting − however remotely
− that a third party could have sent the emails.
The Labour
Court upheld this decision, ruling that ZIMRA had not proven its case beyond
reasonable doubt.
But ZIMRA’s
persistence led them to the Supreme Court, where the narrative took a dramatic
twist.
In a scathing
rebuke, Justice Chitakunye criticised the lower courts for applying the wrong
standard of proof.
“Labour
disputes require proof on a balance of probabilities, not beyond a reasonable
doubt,” he emphasised, dismantling Sithole’s defence brick by brick.
The court ruled
that ZIMRA had done more than enough to prove its version of events was the
most probable.
Justice
Chitakunye’s judgment was as decisive as it was unyielding. The absence of the
physical computer Sithole used in 2010, he noted, was irrelevant.
“Access to an
email account is determined by the user’s password, not the physical computer,”
he stated.
The court also
dismissed Sithole’s claims of victimisation, pointing out that other employees,
unconnected to union activities, had been similarly dismissed for the same
misconduct.
In a final blow
to Sithole, the Supreme Court reinstated his dismissal, effective from the date
of his suspension, and ordered him to pay costs. The judgment sends a clear
message: in the digital age, accountability for one’s online actions is
non-negotiable.
The case serves
as a potent reminder of the perils of misusing corporate resources.
It also
underscores the importance of robust cybersecurity measures, both for employers
and employees.
Justice
Chitakunye’s closing remarks resonate as a cautionary warning to professionals
everywhere:
“The employer
is only required to show that its version of events is more probable than the
employee’s.” H Metro
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