Ebbias Manyemwe v Colcom Foods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/642/14
Held at Harare 23rd SEPTEMBER, 2014
CASE NO. LC/H/887/13
AND 26TH SEPTEMBER, 2014
JUDGMENT NO LC/H/642/14
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO LC/H/642/14

Held at Harare 23rd SEPTEMBER, 2014	       CASE NO.LC/H/887/13

AND 26TH SEPTEMBER, 2014

In the matter between;

EBBIAS MANYEMWE                             APPELLANT

VS

COLCOM FOODS		                          RESPONDENT

Before the Honourable B.T CHVIZHE, Judge

For Appellant    : Mr N. Munhungowarima (UFAWUZ)

For Respondent: Mr D. Chinawa (Legal Practitioner)

CHIVIZHE, J.

The Appellant was charged with a violation of Section 38 of the Colcom Code of Conduct – Theft. He was convicted on the charge and a sentence of dismissal from his employment was imposed. He appealed unsuccessfully to the two internal appeal structures. He has now brought the present appeal to the Labour Court.

The appeal was noted initially on the basis of six grounds. At the hearing of the matter the Appellant’s Representative conceded that the first three grounds being essentially grounds for review were incompetent grounds. They were accordingly struck out by the Court. The remaining three grounds on which the appeal was noted were as follows:-

The Operations Director admitted that sausages were served at the canteen but went ahead and upheld the appeals hearing determination.

The canteen staff agreed that they cooked more food because they anticipated more workers from the Pie Section that day.

There is suspension (sic) that there was constructive dismissal is (as) the applicant had a pending grievance which management were not happy about.

Before I address the grounds I shall outline in brief the background facts of the matter. The Appellant was employed by the Respondent as a machine operator. On the 3rd of September 2013 he was caught by security personnel at the exit gate with a package containing sausages in excess of 3.5 kg belonging to the Respondent. The sausages had been concealed inside another package containing waste products in the form of sadza. At the disciplinary hearing the Appellant’s defence was that he had taken the sausages from the bin and the plates which were on the canteen tables. The sausages were therefore ‘leftovers’ which the Respondent regarded as waste. Evidence was led during the disciplinary hearing from the canteen supervisor. The security details also wrote reports that were placed before the appeal hearing. On the basis of the evidence before the disciplinary authority Appellant was convicted on the charge of theft.

Under his first ground of appeal Appellant alleges that the Operations Director admitted that sausages were indeed served that day in the canteen therefore the sausages found on his person being leftovers were regarded as waste. It is not clear where this submission by the Appellant is stemming from as it is clearly not supported by the record. The record on the contrary indicates that in handing down his determination, the Operations Director who is under the relevant Code the first level appeal authority noted that the sausages which were found on Appellant did not resemble waste. The Operations Director also noted further down that ‘the sausages had not been eaten and did not show any trace of having being taken from the bin?”  The Appellant’s submissions are therefore clearly inconsistent with the evidence the  abounds from the record.  The first ground clearly cannot stand.

The second ground is more of a statement than a ground of appeal. The Appellant anyhow alleges that the canteen staff agreed that they had cooked more food because they anticipated more workers from the pie section that day. The record clearly shows that indeed more food was cooked on the day. In fact in the disciplinary hearing there was a general feeling amongst the disciplinary committee members that there could have been a connivance between the Appellant and the canteen attendant to deviate from set procedures in order to create room for left overs. The Appellant however has not shown clearly how the fact that more food was cooked on the day absolves him from the charge of theft levelled against him. Even if there was excess food that did not justify him taking the excess without the express authority of the employer. That ground of appeal is clearly without merit.

The last ground is pitched on the principle of constructive dismissal. The Appellant alleges that he may have been constructively dismissed by Respondent because he had initiated a grievance in 2012 which grievance handling he intended to appeal against. The Respondent had, according to the Appellant, launched disciplinary proceedings as a way of settling scores with him. The argument is clearly baseless. According to the record Appellant’s the grievance was raised in December 2012. The grievance which was based on a claim for salary adjustment was corrected in January 2013 Appellant was consequently paid the salary differences. The disciplinary proceedings were then commenced 9 months later in September 2013. Appellant had not at the time noted an appeal against the grievance handling if at all he was aggrieved by the determination. In any event it is trite that in order for one to succeed on a claim of constructive dismissal one has to establish that he/she resigned because the employer had made continued employment intolerable see Astra Holdings v Peggy Kahwa SC 92/04. The Appellant has not made such a claim before this Court. The ground just as the other two grounds is clearly baseless.

No such claim was made before the hearings a quo. It is clear on the facts and evidence in the record the Appellant was properly convicted on the charge of theft. The offence of theft involving as it does a material breach of trust goes to the root of the employment contract. The employer was clearly justified to impose a dismissal penalty. This Court cannot in the circumstances interfere with the employer’s discretion.

The appeal being devoid of merit is hereby dismissed with no order as to costs.

Chinawa Law Chambers – Respondent’s legal practitioners