Cephas Musonza v Axea t/a Innscor Africa Limited

IN THE LABOUR COURT OF ZIMBABWE             JUDGMENT NO.        LC/H/84/2013

HELD AT HARARE ON 15 JUNE 2011          CASENO.   LC/H/577/2010

AND 5 MARCH, 2013

In the matter between:-



CEPHAS MUSONZA                                    -             Appellant

And

AXEA T/A INNSCOR AFRICA LIMITED             -              Respondent



Before The Honourable B.T Chivizhe: President



For Appellant     -       Mr M. Urombo (Unionist)

                          Allied Workers Union of Zimbabwe



For Respondent    -       Mr. P. Jonhera (Legal Practitioner)

                          Wintertons Legal Practitioner




CHIVIZHE B.T.:


      The matter was placed before me as an appeal against a determination

by the National Employment Council for the Motor Industry handed down on

the 9th of October 2010 which found Appellant guilty of a misconduct and

consequently imposed a dismissal penalty with effect from the date of

suspension that is 7 September, 2009.

      The background facts to the matter are as follows;
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Appellant was employed by Respondent as a cashier at a Total service Station

run by the Respondent. The fuel products sold at the same service station are

supplied by Total although the service station is leased by Respondent. At the

material time in 2009 fuel was being sold on the basis of smart cards that were

issued to customers after prepayments were made to Total. No cash sales were

being conducted.      Total had employed a Treasury Manager to oversee its

interests called Mr Gonzo.       It was Respondent’s allegation that acting in

collusion with Mr Gonzo Appellant and his colleagues sold fuel at a price of

US$1.35 per litre instead of US$1.31 per litre as instructed by the employer.

They had disguised the transaction using Mr Gonzo’s wife’s smart card which

Appellant and colleague would use to disguise cash sales. The Appellant also

failed according to the Respondent, to complete Daily Sales and stocks Record

which they were required to do where fuel was sold in cash and using the

smart card system.

         The Appellant was arraigned before a Disciplinary Hearing on the 14 th of

September, 2009. He was charged with contravening Section 3 (b) (iv) of the

relevant Code that is “theft, fraud or commit a crime involving dishonesty”. He was

found guilty and consequently dismissed from employment with effect from the

date of suspension that is the 7th September, 2009. The Appellant exercising his

rights under the Code appealed to the Appeals Oficer/ Authority. The appeal

was however dismissed on 13 th October, 2009. The Appellant then appealed to

the National Employment Council for the Motor Industry. The record shows

that the body sat on two occasions; 12 th March, 2010 and 9th October, 2010.

Through a letter dated 15 October, 2010 Appellant was advised of the dismissal

of his appeal. The Appellant then lodged the present appeal with the Labour

Court.

         The appeal has been noted largely on two main grounds that is;

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Firstly whether based on the facts and evidence in the record the Appellant was found guilty on the
charge.

Secondly whether the Appellant’s conviction and dismissal was substantively and procedurally fair.



        The Labour Court sat to hear the appeal on the 15 th of June, 2011. After

listening to submissions by both parties, the court reserved ruling. The court

then requested Respondent’s counsel to furnish the court with the record of

proceeding for the second sitting of the National Employment Council for Motor

Industries held on the 9th October 2010. These proceedings were following on

the adjourned proceedings of the 12th of March 2010. The proceedings had

been adjourned on the 12th of March 2010 to allow Respondent to produce

further documentation.           The proceedings of the 9 th of October 2010 are

therefore final proceedings that resulted in the committee issuing a verdict of

guilty. Despite notice having been given to Respondent’s counsel on several

occasions to produce the record by the Registrar, Respondent’s counsel failed

to obtain the record. At a further sitting of the court on the 5 th of March 2013

both parties were advised to produce the record of proceedings by end of day

8th of March, 2013 failing which the court was to proceed to hand down

judgment.      Both parties have failed to place before the court the relevant

record of proceedings.

        It is common cause that in appeals such as this one the determination

being appealed against has to be placed before the appeal court for it is by

reference to the record of proceedings that the court would be in a position to

exercise its appeal powers. In the absence of the relevant determination the

court cannot exercise its appeal powers in regards the issues raised before it.

In this case it would be difficult for me to determine on what basis the National

Employment Council came to the conclusion that the Appellant was guilty of the

charge taking into account that the Appellant is challenging both conviction and

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penalty. In the circumstances, the appeal stands to be dismissed with no order

as to costs.




It is so ordered.




WINTERTONS LEGAL PRACTITIONERS – APPELLANT’S LEGAL PRACTITIONERS




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