Edward Bhodho v Autobrakes (Private) Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/106/21
HELD AT HARARE ON 7TH JUNE, 2021
CASE NO. LC/H/25/20
JUDGMENT NO. LC/H/106/21
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THE LABOUR COURT OF ZIMBABWE	       	     JUDGMENT NO. LC/H/106/21

HELD AT HARARE ON 7TH JUNE, 2021             CASE NO. LC/H/25/20

AND 30TH JULY, 2021

In the matter between:-

EDWARD BHODHO						Appellant

And

AUTOBRAKES (PRIVATE) LIMITED				Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr. L. Ndoro (Legal Practitioner)

For Respondent    :	Ms. T. Chiminya (Legal Practitioner)

MHURI J.

This is an appeal against the Appeals Committee of the National Employment Council for the Motor Industry.

Appellant was in Respondent’s employ as a foreman.  He was brought before the Disciplinary Authority on two acts of misconduct namely –

-	any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract

-	theft or fraud or commits a crime involving dishonesty.

He was found guilty and dismissed from employment.  He took his matter up on appeal without success and eventually approached this Court.

The allegations which gave rise to the charges are basically that;

On the 18th March 2019, he received from a customer, a clutch plate, pressure plate and a fly wheel, which items he diagnosed and found that except for

the flywheel the pressure and clutch plates were irreparable.  As a result of his diagnosis, the customer took back and left with the pressure and clutch plates leaving behind the flywheel.  Appellant did not open a job card for the repair of the flywheel, which was one of his duties as a foreman.  The job card was only opened on the 21st March, 2019 after an issue had arisen when the customer came to collect his items.

In his notice of appeal appellant raised 8 grounds 2 (1 and 2) of which he abandoned. Save for ground 6, the other grounds (3, 4, 5, 7 and 8) appellant submitted are attacking the Appeals Committee’s factual findings on the basis that they are unreasonable in that any tribunal faced with the same would come up with a different finding.

Reliance was made on the case of

HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S)

To substantiate his appeal, appellant’s submissions on the procedure to be followed were that:

the customer brings his items;

the security at the gate marks the items;

the foreman receives the items and proceeds to diagnose them;

if the items are reparable and the customer gives a go ahead to have them repaired;

the foreman then open a job card.

It was appellant’s submission that when the customer left his flywheel, he did not give an instruction that it be repaired and so appellant could not have opened a job card.

He submitted that for the Appeals Committee to make an inference that because the customer left his flywheel and appellant did not open a job card, he was conniving with the customer to have the flywheel repaired for free and also to find him guilty on the basis that he did not open a job card, it was a misdirection on its part.

As regards to 6th ground, appellant submitted that respondent did not file anything in response to the appeal before the Appeals Committee, neither were they any oral submissions made, the only submissions made were in respect of points in limine that respondent had raised.

In that regard, it was appellant’s submission that the Appeals Committee erred in upholding the appeal when respondent was not opposing it.

Appellant prayed that the appeal be allowed and Appeals Committee’s decision be set aside and his dismissal be set aside and be reinstated without loss of salary or benefits from the date of suspension or alternatively be paid damages.

The alternative prayer of remittal was abandoned.

On the other hand respondent was of the view that the appeal be dismissed for the reason that the Appeals Committee’s decision was reasonable in the circumstances and that any tribunal faced with the same facts could reach the same decision.

Respondent’s submissions in response were that when the customer brought the items on the 18th March, 2019, and after diagnosis, there was no need for the flywheel to be left behind if it was not going to be serviced.  Further appellant did not record the flywheel in the book to show that it had been left behind; as such it was only appellant who knew about its existence in Respondent’s premises.  It was only on the 21st March 2019 when the customer was intercepted by the security guard on his way out of respondent’s premises with the 3 items (clutch, pressure plates and flywheel) all repaired, but with no proof of payment for the service done on them.  It was only at this stage that a job card was opened.

On the basis of the above, it was respondent’s further submission that cumulatively the circumstances point towards dishonesty and an attempt to prejudice respondent.  This was because  appellant ought to have opened a job card when the flywheel was left in his possession so that everything would have been clear when the customer returned to collect them.  Furthermore, the fact that respondent only got to know about all this after the security guard intercepted, goes to show the possibility that the flywheel would have left the premises without being paid for.

Basing on the above respondent’s submission was that the Appeals Committee was not grossly misguided in upholding the dismissal to warrant the setting aside of its decision by this Court.

As regards the 6th ground, respondent submitted that the appeal before the Appeal’s Committee was indeed opposed, it submitted both oral and written submissions only that it had a challenge in getting stamped copies from the arbitrator tor to attach to the record.

The legal position on appeals against factual findings is well established.

An appellate Court will not interfere with the court aquo’s factual findings unless those factual findings are grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion.

See:	ZINWA  vs  MWOYOUNOTSWA  SC 28/15

HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S) at 670 C-E

It is also a well-established position of the law that in civil matters such as this one, the burden of proof is on a balance of probabilities.  It is on this burden that the Appeals Committee confirmed that appellant was found guilty of dishonesty.

The Disciplinary Authority noted the following which is captured in its dismissal letter.

“Your duty as a foreman is to diagnose the clutch plate, pressure plate and flywheel, then see if they can be repaired and a job card is opened immediately.

You received the flywheel on the 18 March 2019, and no job card was opened.

The job card was only opened after the instruction from the management after it was discovered that a job card was supposed to have been opened immediately on the 18th of March, 2019.

There is no valid reason for you not to open the job card on the 18 March 2019 and there is no reasonable cause for the delay.

The failure to open the job card which led to the noisy environment being done by the client after his usual deal of having things fixed and collected without paying for really reveals the dishonesty by the Defendant.

You could not wait until you were ordered to open a job card whilst that was your routine job.

Your actions are of serious nature and involve dishonesty.  The actions of you compromise the trust the organisation gave you.”

After hearing appellant’s appeal against the Disciplinary Authority’s decision, the Appeals Authority also noted that –

“(a)	it is not in  dispute that the appellant received items from the said client on the 18th of March 2019 and further a job card was not immediately opened.  The job card was then opened on the 21st March 2019 after he was ordered by management to do so.

(b)	It is undeniable fact the leaving behind of the flywheel by client was in itself evident that the item needed repair.  Further all other items which were in a condition which the organisation would no longer recondition or repair were immediately returned to client.

(c)	It is a fact that it was the duty of the Appellant to open job cards for items needing to be worked on.  It is established that appellant is agreeable to the fact that he noticed that the flywheel needed to be repaired on the 18th of March, 2019.

(d)	The appellant’s action as a foreman in the circumstance had an omission in the way he should conduct himself at work.  Failure to open a job card in the circumstance without a reasonable cause can only is viewed as dishonesty.

(e)	The defendant’s actions were of serious nature, involving dishonesty.  The appeal is purely academic and is of ne force or merit.”

These factual findings by both the Disciplinary Authority and Appeals Authority were confirmed and thereby upheld by National Employment Council Appeals Committee which also came up with the following –

“(i)	Appellant received client’s items but did not open a job card for them.

(ii)	The fact that the client left with the condemned items creates more questions than answers.

(iii)	The fact that appellant waited for the client to give him the go ahead to open a job card put him in a precarious position.  It left the items unaccounted for in the organisation’s system.

(iv)	Appellant’s failure to open a job card for whatever reason leaves a lot to be desired.  The probability that appellant had underhand dealings with the client is high.

On a balance of probabilities appellant was found guilty of dishonesty.  His failure to open a job card could have been a deliberate act since it was his core responsibility.  From the submissions, it is an established fact that when a job is received, a job card should be opened.

The root of employment relationship in trust and lack of it brings about an untenable employment relationship.

The nature of the issue at hand is gross and due to the foregoing findings Edward Bhodho’s dismissal is upheld.”

In view of the facts, some of which are common cause, that were placed before the Disciplinary Authority and the Appeals Authority from which the above factual findings were made, can it said the Appeals Committee’s decision upholding the Disciplinary Authority’s decision is so grossly unreasonable or irrational to warrant interference by this Court.

The answer in my view is in the negative.  It is not in dispute that on the date in question Appellant received the 3 items from the customer.  He diagnosed them and condemned the clutch and pressure plates as unserviceable.  The only item serviceable was the flywheel.  As a result of Appellant’s diagnosis the customer took back and returned with the condemned items on the understanding that he would bring back pressure and clutch plates which would then be fitted on the flywheel.  Appellant did not open a job card for the service of the flywheel.

Evidence on record is that the customer did not come back until the 21st March 2019 with the 2 items and it was on his way out of the premises with all the 3 items that it was discovered that the items had been fixed but there was no proof of payment and no job card had been opened for them.

It was only at this point in time that a job card was opened on the instruction of respondent’s manager Chivayo.

With such evidence before it, the Disciplinary Authority correctly in my view found on a balance of probabilities that appellant indeed was dishonest.  His evidence that he was waiting for an instruction from the customer to open a job card was found to be incredible, rightly so in my view as it was the Disciplinary Authority’s conclusion that the leaving behind of the flywheel by the customer was an indication that it should be serviced.  Appellant therefore at this juncture ought to have opened a job card awaiting the return of the customer with the other 2 items for fitting on the flywheel.

The factual findings therefore cannot be said to be grossly unreasonable to warrant interference.  To that end, I will dismiss the appeal.

It is therefore ordered that the appeal be and is hereby dismissed with costs.

THONDHLANGA & ASSOCIATES – Appellant’s legal practitioners

CHIMINYA & ASSOCIATES – Respondent’s practitioners