Christopher Malaicho v Tongaat Hulett

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/14/13
HELD AT HARARE 11TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/14/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/14/13

HELD AT HARARE 11TH JUNE 2013 & 			CASE NO LC/MS/57/11

2 AUGUST 2013

CHRISTOPHER MALAICHO				Appellant

TONGAAT HULETT						Respondent

Before The Honourable G Musariri, President

For Appellant		Mr C Ndlovu, Attorney

For Respondent		Ms N Masunda, Attorney

MUSARIRI, G:

On 25th November 2011 Appellant appealed to this Court against his dismissal from employment by Respondent.  The appeal raised both procedural and substantive issues.

Procedure

A number of complaints were raised concerning procedure.  These included

the following:

The employment code should not have been used because the deal in question was a private deal between two farmers;

There was bias on the part of the hearing officer/s; and

Appellant was denied the opportunity to cross-examine a witness.

Procedural irregularities are dealt with by way of review. Section 89 (1) (d1) of the Labour Act Chapter 28:01 empowers this Court to,

“exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

Rule 16 of the Labour Court Rules S.I. 59/06 sets out the procedure for filing an application for review.  Accordingly Appellant misfired by invoking an appeal procedure where he should have proceeded by way of review.  Thus his complaints about procedure cannot be entertained in this case.

Merits

The heart of Appellant’s case was that the transaction in question was a private deal with another farmer.  The farmer-to-farmer deal did not involve Respondent.  Accordingly it should not have been made the subject of disciplinary proceedings by Respondent.  Thus, so he argued, he was wrongfully dismissed from employment.

Appellant worked for Respondent as a Debtor’s Clerk.  His duties involved arranging payment for inputs supplied to farmers.  Respondent ran a scheme  whereby it supplied inputs to sugar cane farmers.  The farmers then sold their produce to it.  Respondent would then deduct the cost of the inputs from the value of the produce.

Appellant ran plot on behalf of one T Shumba.  He entered into a deal with one B Chingwena whereby the latter supplied him inputs.  According to Respondent, Appellant then caused Chingwena to claim payment for the inputs under Respondent’s scheme.

Minutes of the hearings are filed of record.  I will quote relevant excerpts.

“3.5	AM	who filled the forms (claims forms)

3.6	BC	(Chingwena) Chris (Appellant) wrote the forms

3.7	AM	Confirm all the three forms were filled by Chris

3.8	BC	Yes

3.9	AM	Where?

3.10	BC	Chris only filled the tonnage.  One form was supposed to be destroyed.”

It is common cause that Chingwena supplied inputs to Appellant.  The above exchanges show that he then claimed payment from Respondent.  He was assisted by Appellant.  The claim was filled in Appellant’s office.  As Debtor’s Clerk Appellant had access to the claim forms.  He filled in at least the tonnage of the inputs.  That was the critical part which determined Respondent’s liability to the supplier.  From these facts, it is clear that indeed the deal was a private one.  It involved Appellant and Chingwena.  However Appellant went on to rope in Respondent. He did so by causing Chingwena to claim for the inputs under Respondent’s inputs scheme.  In other words he was using his employer to settle a private debt he owed to a third party.  That was clearly wrong because the deal had been made outside the ambit of Respondent’s scheme.

Appellant sought to argue that Respondent suffered no prejudice.  This was on the basis that Respondent stood to recover the payment to Chingwena from Appellant’s principal.  For want of a better expression I consider this comment as a “cheeky one.” That Respondent suffered no monetary prejudice is immaterial.  Appellant’s conduct undermined the roots of his employment relationship with Respondent.  He held a position of trust.  He abused the trust by wrongful seeking to settle his private debt using his employer’s funds.  That was serious misconduct which was aggravated by lack of contrition.  I consider that in the circumstances Respondent was justified in dismissing Appellant.

Wherefore is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PREISDENT