Brian Mufunga v TM Supermarkets

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/640/2013
HARARE, 11 & 22 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/640/2013

HARARE, 11 & 22 NOVEMBER 2013	    		     CASE NO. LC/H/148/12

In the matter between

BRIAN MUFUNGA							Appellant

And

TM SUPERMARKETS						Respondents

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr Z. Mufanebadza (Unionist)

Respondent		-	Mr B. Peresuh (Legal Practitioner)

MUZOFA J:

This is an appeal against the Negotiating Committee’s decision to dismiss the appeal that was before it.

Appellant was employed by the Respondent as a shelf packer.  On the 7th of October 2010 when Appellant was leaving his workplace, he was searched, just like any of the employees of the Respondent.  Upon being searched the Appellant was found in possession of a sealed packet of bread bags containing 1000 units.  Appellant was charged under the NECCS Code of Conduct and Grievances Procedures.  After the hearing the Appellant was dismissed.  He lodged an appeal with the Local Joint Committee which upheld the Respondent’s decision.  Dissatisfied with the outcome Appellant filed an appeal before the Negotiating Committee which dismissed the appeal.  Appellant still dissatisfied noted an appeal to this Court on the following grounds.

That the NECCS Code of Conduct was not applicable to the Appellant.

That Appellant was not in possession of the bread bags.

On the date of hearing the representative for the Appellant withdrew the first ground of appeal.  This was on the basis that the Appellant was properly charged under the NECCS Code of Conduct.  This means the Court will address one ground of appeal that the Appellant was not found in possession of the bread bags.

From the submissions made before this Court it is clear that Appellant was searched and was in possession of the bread bags.  This was not disputed.  Appellant seems to claim that he picked the bread bags from a rubbish bin a meter or so from the supervisor who searched him one Vhareta, therefore he had no intention to steal from the Respondent.  In addition it was argued that Appellant was aware of the company rules he would not steal and submit himself to a search.  As rightly pointed out by counsel for the Respondent the standard of proof in labour matters just like in all civil matters is proof on a balance of probabilities see ZESA v Dera SC 79/88.  The evidence was clear.  The Appellant was searched and found with unused bread bags totaling one thousand belonging to the Respondent.  Whether he picked them or not is not relevant to the issue.

It was submitted on behalf of the Appellant that, the conduct itself of having in possession of the bread bags smacked of dishonest.  The evidence was to the effect that the unsealed bags were concealed amongst the rubbish the Appellant intended to remove.  Clearly an inference can be made on the Appellant’s intentions from the said conduct.  I believe Appellant’s case can be classified as an abuse of Court process.  There is clear evidence that the Appellant committed the offence charged.

The value of the bread bags was not given but the record of the disciplinary hearing show that the value put by Appellant’s representative was $4,80.  This amount can be classified as negligible.  However it was submitted by counsel for the Respondent that the issue is the conduct and not the value he relied on the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12 for the proposition.  I agree to this proposition.  Appellant’s conduct went to the root of the employer and employee relationship.  One of the fundamental common law duties of an employee is a duty of trust.  Once there is no trust between the parties the relationship is difficult to sustain.  Accordingly I donot find fault even in the penalty meted out.

The appeal is devoid of any merit and should be dismissed in its entirety.  The following order is made:-

The appeal be and is hereby dismissed.

There shall be no order as to costs.

Honey & Blanckenberg – Respondent’s Legal Practitioners