Alois Masocha v Fidelity Printers & Refiners (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/408/2016
HARARE 3 JUNE 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/408/2016

HARARE 3 JUNE 2016				       	       CASE NO. LC/H/698/15

AND 8 JULY 2016

ALOIS MASOCHA						Appellant

FIDELITY PRINTERS					Respondent

& REFINERS (PVT) LTD

Before The Honourable G. Musariri, Judge:

For Appellant		Ms R.S. Mudarikwa, Attorney

For Respondent		Mr W. Magaya, Attorney

MUSARIRI, J:

Appellant worked for Respondent as a Security Officer.  On 30th June 2015 he was dismissed from employment for misconduct.  He appealed against the dismissal to Respondent’s Chief Executive Officer (CEO).  By letter dated 9th July 2015 the CEO dismissed the appeal.  Appellant then appealed to this Court.  Respondent opposed the appeal.

The material facts are set out in the dismissal letter as follows,

“3.1.1.	Established facts show that you Alois Masocha claimed per diem allowances for yourself and Security Officer Donald Ncube for a business trip to Zvishavane on 17 February 2015.  You did not travel with Donald Ncube as claimed on the per diem application form.  Upon your return from the Zvishavane trip, you did not return the allowances meant for Donald Ncube to Accounts.  In the process you prejudiced the company of US$11.00.”

The offence, failure to account for $11.00 per diem allowances, was classified as conduct amounting to theft or fraud.

During the hearing Appellant explained that

“As I approached Mberengwa I found that it was a hive of activity.  There was a roadblock and I was told that I could not get in as I was not a local and only locals were allowed. I negotiated with the youths who were manning the entrance to get access.  They said they wanted food and I gave them US$2.00 each and they were three.  To get access to the area they wanted US$10.00. I also negotiated and paid $5.00”

The above payments account for the (2x3+5) US$11.00 in question.  It is common cause that Appellant went to Mberengwa to investigate illegal gold mining activities.  So according to his version he used the money in the course of the investigations.  Appellant’s defence ties in with his e-mail on 18th February 2015 (a day after the trip) to his boss Mahachi.  Therein he stated that,

“… For one to gain entry there you need to pay.  I paid USD5.00 so that I could proceed and the conditions are alleged to be that you pay something to the controller so that you are allowed in …”

This timely statement corroborates his defence at the hearing.  It does not explain the entire $11.00 but accounts for a substantial portion.  The shortcoming is that it did not explain that the payment came from the $11.00 in question.  However I consider that the timely disclosure of the payment is inconsistent with an intent to steal or defraud his employer.  The sin disclosed by the evidence is failure to properly account for monies advanced.  That is far removed from the serious offence of theft or fraud.  I am persuaded that, on these facts, the offence charged was not proved.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

(a) Respondents shall reinstate Appellant without loss of salary and benefits,

(b) If reinstatement is untenable, Respondent shall pay Appellant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this Court; and

3.  Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E