Christopher Mutsokore v OK Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/428/13
HARARE, 29TH MAY 2013
&
CASE NO LC/H/740/11
13TH SEPTEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/428/13

HARARE, 29TH  MAY 2013	&			CASE NO LC/H/740/11

13TH SEPTEMBER 2013

CHRISTOPHER MUTSOKORE			APPELLANT

Versus

OK ZIMBABWE					RESPONDENT

Before the Honourable L Hove, Judge

For the Applicant: In Person

For the Respondent: Mrs RTL Matsika (Legal Practitioner)

HOVE J:

The appellant was employed as a buying assistant by the respondent. He was dismissed for unsatisfactory work performance sometime in August 2010.

The employer basically alleged that the appellant had failed to report stock variances and to investigate such variances. He had the responsibility and duty to ensure stock security. He was also accountable for stock discrepancies, reporting any such discrepancies and their investigations.

In casu, it is not disputed that there was a variance in that there was a counting error in the health and beauty department in which the appellant was employed. The result was that stock was greatly inflated. Cuddlers disposable diapers were recorded as 352 units when a stock take revealed that there were only 16 units in the shop.

The appellant does not deny that such a discrepancy existed. During the initial hearing he indicated that he had noted the discrepancy and intended to investigate but he could not investigate for various reasons. In his own words, he gave the reasons for failing to investigate as:

“Yes, I noted this during my cycle counts and I was about to investigate but time constraints and the nature of the job did not allow me the chance to do so. At times you are about to do it when you have to receive goods at the bay and then you have to do a goods in and etc.”

It is thus admitted by the appellant himself that he failed to satisfactorily perform his duties. He was found guilty and dismissed from employment. He appealed to the National Employment Council which dismissed his appeal. He appealed to this court and his grounds of appeal were that:

The appellant had not been given a fair trial and had been forced to appear without representation;

That there were time constraints which hampered the appellant’s ability to investigate but that he had reported the normally;

That the appellant had additional duties which made it difficult for him to investigate, which duties included receiving stock, ordering stock, merchandising, attending sales representatives, packing for customers and operating the till;

That the appellant was referred to a wrong appeal forum and therefore failed to exhaust his domestic remedies;

The appellant was denied representation; and

No mitigation was heard before passing of sentence.

I will deal with the grounds of appeal one after the other.

Was the appellant given a fair hearing?

The appellant alleges that he was not given a fair hearing as the hearing was characterised by a lot of ambushes. On several occasions the appellant was not prepared when he was called for a hearing, and some of the hearings were after 6.30 pm when he would not have secured representation.

This is not a ground of appeal as it raised procedural issues. The appellant is challenging not the correctness of the decision but the decision making process. He ought to have challenged the alleged unfairness in review proceedings.

In the interest of justice and fairness, I will however consider the issue of alleged unfairness in the manner in which the proceedings were conducted. I have perused the minutes of the hearing on p 15 of the record. The record shows that the appellant was asked if he was happy with the hearing. His answer was that yes he was happy.

He was again asked if he had been notified of the hearing and he answered in the affirmative.

If the appellant genuinely was of the view that the hearing was unfair, that the indefinite postponements had compromised the manner in which he conducted his defence, and more seriously that he was compromised in securing representatives, he would not have failed to raise this with the employer when the opportunity presented itself. He did not complain or seek to enforce his right to a fair hearing then. He also did not complain before the local joint committee and the negotiating committee. The impression that is created is that the appellant was indeed given a fair hearing otherwise he would not have failed to complain or at least attempted to insist on enforcing his rights. He is merely raising it now as an afterthought but his own assertion that he was happy with the initial proceedings and that he had been warned for the other hearing before the employer makes it difficult to accept on a balance of probabilities that he was not given a fair hearing. It is therefore my finding on a balance of probabilities that the appellant was indeed given a fair hearing.

Did the hearing officer err in failing to take into account that there were time constrains which made it difficult for the appellant to investigate the anomaly

The appellant was required to investigate any stock variances. He admitted that he noted the variance and was about to investigate but time constraints and the nature of his job did not allow him a chance to do so.

What the appellant is admitting is that he failed to meet one of his key result areas that of investigating stock variance. He only has an excuse for not doing his job but the facts as admitted by the appellant himself reveal that he failed to investigate i.e to perform his duties to the agreed standard.

The appellant submitted that he had reported the variance. This was good but he ought to have gone a step further and investigated the variance. His key result area included both reporting and investigating. It reads:

“To investigate and report stock variances.”

Just reporting the variance was clearly not enough. The ground of appeal is therefore without merit.

Did the hearing officer err in failing to take into account that the appellant had other duties to do in addition to his duties?

That the appellant had other duties to perform is just an excuse or an explanation as to why he failed to perform his duties to the expected standard. It does not subtract from the fact that the appellant did not investigate as he was required to do.

This ground therefore lacks merit.

Did the employer wrongly direct the appellant to appeal to a wrong forum?

The court has not been referred to a provision in the Code of Conduct that say that an appeal from the decision of the employer shall lie to the Human Resources Manager.

The respondent on the other hand has referred the court to para 7.2 of the relevant Code of Conduct for the Commercial sectors which stipulates that an appeal from a decision of the employer shall lie with the local joint committee of the National Employment Council for the Commercial sector.

The appellant also fails to show that he suffered any prejudice when the appeal was heard by the local joint committee instead of the human resources manager. It is trite that not every procedural irregularity should have the effect of vitiating the proceedings; in order for a procedural irregularity to vitiate proceedings; one must show that they suffered prejudice by the failure to follow the procedures. See the case of Tichawana Nyahuma v Barclays Bank 2005 (2) ZLR 445.

This ground is also one without merit.

Did the respondent deny the appellant the right to be represented?

I have already made reference to p 15 of the record on which the following exchange was recorded:

“Employer:	Were you happy with the last hearing?

AO:			Yes

Employer:		Were you notified of this hearing?

AO:			Yes.”

The appellant did not seize this opportunity to indicate that he was being denied the right to be represented. He also did not assert his right to a representative. This can only be because he was either happy with the worker’s representatives who sat in the committee or that he had decided not to enforce his right or insist on his right to a representative of his choice.

I find this ground is also devoid of merit.

Finally, the appellant alleges that he was not given an opportunity to mitigate

The respondent lists factors taken into account in mitigation and submitted that it is clear therefore that the disciplinary authority considered the “mitigatory factors.”

But p 16 of the record and p 25 which are records of the disciplinary proceedings do not show that the appellant was ever asked to make submissions in mitigation. After the respondent found the appellant guilty; he was not asked to mitigate. The disciplinary authority just picked mitigatory factors from what the appellant had said in his defence but did not hear the appellant in mitigation. This was wrong. The appellant ought to have been given an opportunity to submit his mitigation.

This ground of appeal is thus found to be one with merit.

The appeal, apart from this one final ground of appeal is one without merit. The appellant does not deny that it was his key result area to investigate stock variances. He further does not deny, infact he said he noted a variance and reported it but did not investigate. He also explains why he failed to investigate. This in my opinion is a clear admission of his failure to do his duties in accordance with his contract of employment. The decision to find him guilt can therefore not be faulted. But the decision to dismiss him prior to giving him an opportunity to address in mitigation was wrong and cannot be allowed to stand.

I accordingly order as follows:

The decision to find the appellant guilty is upheld.

The decision to dismiss the appellant is set aside.

The matter is hereby remitted for the hearing of mitigation before a decision can be made.

Each party will bear its own costs.

HOVE J

JUDGE – LABOUR COURT

Wintertons Legal Practitioners, respondent’s legal practitioners