Angeline Chimoka v Cresta Hospitality (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/488/2016
HARARE, 5 JULY 2016 &
CASE NO LC/H/340/2015
19 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/488/2016

HARARE, 5 JULY 2016 &					         CASE NO LC/H/340/2015

19 AUGUST 2016

In the matter between

ANGELINE CHIMOKA							APPELLANT

And

CRESTA HOSPITALITY (PRIVATE) LIMITED			RESPONDENT

Before the Honourable Murasi J

The Appellant in Person

For the Respondent	Mr A K Maguchu (Legal Practitioner)

MURASI J:

At the conclusion of the oral submissions the court dismissed the appeal stating that the reasons would follow. The following are the reasons:

The appellant was employed by the respondent as a waitress. During the course of her duties she had occasion to attend to a customer who came in for breakfast with his invited persons. The customer, in appreciation of services rendered, wrote to the respondent via e-mail that he commended the respondent in a job well done. The respondent checked with the CCTV and documents and found that the appellant was the one who had served the customer. However on checking the records, the respondent discovered that the amount of $102-00 mentioned by the customer in the e-mail was not reflected in daily transactions. This led to investigations resulting in the appellant being hauled before a disciplinary committee which found her guilty and recommended her dismissal. An appeal in terms of the Code of Conduct did not yield the desired results. The appellant has approached this court for relief.

The appellant’s grounds of appeal are inelegantly formulated but can be summarised as follows:

The appeals authority grossly erred in upholding the decision by the disciplinary committee not to afford the appellant a minimum of three days to prepare for her defence.

The appeals authority grossly erred to uphold the decision by the disciplinary committee when they refused to provide the appellant with the original hand written record of the minutes which were recorded during the proceedings.

The respondent erred at law when it refused the appellant access to CCTV footage on which the charges were formulated on which was used as evidence during the disciplinary hearing proceedings.

The appeals authority grossly erred to uphold the reasons for justification for the guilty verdict by the disciplinary authority (read committee) based on different charges than those proffered in the letter of suspension.

The respondent grossly erred to hold that the decision of the disciplinary committee without proof as there was no evidence linking the appellant to the alleged offence of dishonesty.

The appellant submitted that the decision to convict her was wrong as she was merely carrying out her duties as a waitress. She stated that after serving the said customer on the date in question, she presented a bill to him which bill had been given to her by the supervisor and took the money together with the bill to the cashier. She further argued that it was not her business to check whether the bill was counterfeit or not. She further submitted that the CCTV footage showed that she had carried out her duties in a diligent manner.

Mr Maguchu stated that he largely abided by the documents filed of record. He further submitted that had it not been for the email sent by the customer, the respondent would not have known about this transaction. It was submitted that the appellant knew that the bill presented to the customer was a fraudulent one but had not informed the employer about it. Mr Maguchu further pointed out that the minutes of the disciplinary committee hearing showed that the appellant knew and admitted that the bill presented to the customer was a fraudulent one. It was also submitted that the record of proceedings showed that the appellant was aware of other shady deals which she could not disclose because she feared victimisation.

Mr Maguchu averred that considering the appellant’s duty to her employer of utmost good faith, she could not allege that she had any integrity in the circumstances. In his heads of argument, Mr Maguchu pointed out that the appellant challenges her dismissal on the basis of procedural irregularities which are grounds of review and not appeal and that the grounds where procedural issues are raised should be dismissed.

I will deal with the last point raised in Mr Maguchu’s heads of argument. A reading of the appellant’s grounds of appeal shows that she has clearly raised procedural issues which she has termed grounds of appeal. The first ground of appeal alleges that the disciplinary committee did not afford her the three days for her to prepare her defence. This is clearly a procedural issue. The second ground of appeal states that the disciplinary authority refused to provide the appellant with the original hand written record. This is also a procedural matter. The third ground of appeal raises another procedural issue where it is alleged that the respondent refused the appellant access to the CCTV footage. Likewise the fifth and sixth grounds of appeal raise procedural issues and should have been brought by way of review. Herbstein and Van Winsen in The Civil Practice of the High Courts of South Africa 5th ed. State thus at page 1271:

“The reason for bringing proceedings under review or appeal is usually the same, viz to have the judgments set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.”

It is therefore trite that procedural issues should indeed be brought by way of review. The court is unable to comment on why the appellant attached an affidavit to the notice of appeal. Whether it was intended to file the appeal as a review, is not apparent as no explanation was tendered. In any event, a review would have been filed together with a Form LC 4. It is clear that the purported grounds of appeal referred to above are not proper grounds of appeal and should accordingly be dismissed.

What remains for the court to determine is whether on the evidence adduced, it was proper for the disciplinary committee to convict the appellant. I should hasten to add that the appellant’s protestations that she was not afforded a chance to correct the initial hearing minutes is an allegation made in bad faith. The record shows that during the appeal hearing, the appellant’s representative was asked by the committee whether it was necessary to call the complainant so that the record could be corrected. The appellant’s representative declined this opportunity on several occasions during the hearing. I should take it that the appellant, through her representative, was comfortable with the minutes of the disciplinary committee’s hearing.

A reading of the minutes shows that the appellant’s explanation was as follows:

“In response the accused highlighted that she was given the bill by Mr Marufu, who was the supervisor on duty. She then looked at the bill and noticed that the bill was fake because it did not resemble the manual billing books which are used when the machine is down, the bill was not from the correct book…

The accused did not question about the bill, because she felt that by questioning the bill she would be overriding her supervisor as she had been given an instruction to give the bill to the guests.”

The above cited portion of the minutes clearly shows that when the appellant was given the bill she knew it be fraudulent. She went ahead and performed her duties as if nothing had happened. At the end of the day she did not inform the respondent about the incident. The incident was only unearthed when the customer had written a letter of commendation. If this had not happened, the respondent would still be in the dark. Would a reasonable tribunal not have convicted the appellant in the circumstances? I am of the view that a reasonable tribunal would have convicted the appellant. The evidence, coupled with the appellant’s admissions clearly showed the appellant’s guilt. The appellant breached the trust reposed on her by the employer. She had clearly decided to “play along” with her superiors when the latter were stealing from the respondent. It is thus not known, and no evidence was led to this effect, whether the appellant did not benefit from these underhand transactions. Even if the appellant did not gain anything from the transaction, the misconduct clearly went to the root of the employment contract. In Central News Africa (Pty) Ltd v Commercial Catering & Allied Workers Union & Anor 1997 (12) ILJ (LAC) the following was stated:

“Theft in my view is axiomatic to the relationship between an employer and employee that the employer should be entitled to rely upon the employee not to steal from the employer. This trust which the employer places in his employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between the employer and the employee.”

It is my view that the appellant was correctly convicted and that the penalty of dismissal was the appropriate one. The appeal ought to be dismissed.

In the result and for the aforestated reasons the court makes the following order:

The appeal, being devoid of merit, is dismissed.

The decision of the disciplinary committee convicting the appellant resulting in her dismissal be and is hereby upheld.

There be no order as to costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners