Ellen Gwande v New Ambassador Hotel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/796/2016
HARARE, 6 OCTOBER 2016 &
16 DECEMBER 2016
CASE NO LC/H/536/2014
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/796/2016

HARARE, 6 OCTOBER 2016 &				         CASE NO LC/H/536/2014

16 DECEMBER 2016

In the matter between

ELLEN GWANDE							APPELLANT

Versus

NEW AMBASSADOR HOTEL					RESPONDENT

Before the Honourable Maxwell J

The Appellant in person

For the Respondent	Ms W L Chirongoma (Legal Practitioner)

MAXWELL J:

This is an appeal against the decision of the respondent’s Acting Chief Executive Officer. The appellant was employed as a Restaurant Manager. She was charged and convicted of conduct or omission which is inconsistent with the fulfilment of the express or implied conditions of the contract of employment. A penalty of dismissal was meted by the Designated Hearing Officer. The penalty was confirmed by the General Manager and subsequently by the Acting Chief Executive Officer.

The appellant was aggrieved and appealed to this court. On Form LC3 the following is stated on the section that requires the brief facts and grounds on which the appeal is based.

The complainant used her descretion (sic) to charge the amount of $20-00 because there was promotion which was running but the appeals authority ignored all this.

It was not the claimant’s misdoing that the bill was not served to the customer – the appeals authority ignored this.

The Hearing authority and the appeals authority ignored the fact that the cashier (Zebron) was the one who was supposed to raise the bill.

On 30 June 2014 the appellant filed further grounds of appeal. The further grounds of appeal are:

The respondent erred in law and misdirected himself on the facts and evidence before him, which misdirection was so outrageous in its defiance of logic that no reasonable person seized with the matter would reach such conclusion when he made a finding that the appellant did not issue a bill to the customer on 9 February 2014, yet the customer was issued with the bill the same day before he left the hotel, and also the appellant cannot be persecuted for a crime that she did not commit that when she was found guilt (sic) of not issuing a bill on the 8 February 2014 yet she was absent from work.

It boggles the mind how the respondent reached a conclusion that no action was taken by the appellant yet the appellant is the one who made sure that the customer had his bill before he left the hotel and there was no prejudice to the customer.

The respondent erred in law and misdirected himself on the facts and evidence before him, when he ignored the fact that there was no standing instruction to when the bills must be issued, a fact which if the respondent had applied his mind and logic could have noticed that a person accused of not issuing bills cannot be said to have grossly violated standing rules.

All the charges are frivolous and vexatious and are not supported by evidence, it is clear that the respondent was determined to make sure that the appellant was dismissed from her employment without any benefits.

The appellant prayed for the setting aside of the decision of the respondent and her reinstatement without loss of pay and benefits. If reinstatement is no longer tenable, the appellant prayed for an order that the respondent pay damages in lieu of reinstatement.

In response to the first ground of appeal the respondent stated that the guest wrote a report to the effect that the receipt was only issued the next day after he had requested for it. The respondent also stated that the appellant conceded that the bill had been retrieved from the dust bin in her presence which was an anomaly compounded by the fact that the guest had to request for the bill. The respondent further stated that another guest was also not presented with a bill and almost left without paying due o the appellant’s failure to diligently apply herself to her duties.

Regarding the written statement as the second ground of appeal in the further grounds of appeal, the respondent stated that the appellant held the post of Restaurant Manager therefore it was part of her duties to ensure that all procedures were observed to guard against dishonest or fraudulent acts. Therefore the failure to act by the appellant went to the root of the employment contract. The respondent stated that the evidence of Samuel Mangumwa confirmed the existence of standing rules or procedures. The respondent denied that the charge is frivolous or vexations. It stated that standing rules and procedures were put in place to eradicate dishonesty and to ensure that guests were given bills so that they know what they would be paying for and that no items were missed or erroneously added to the guest’s bills. Failure to observe the proper billing procedure and failure to act after observing an anomaly is conduct inconsistent with the duty to act and the duties that the respondent expected the appellant to fulfil.

At the hearing of the matter the appellant gave the impression that she was not the one who had prepared the papers before the court. She appeared with one M Mare who she alleged was a relative. Whenever the court asked her to make submissions or answer a question she would throw a glance to Mr Mare as if expecting him to advise her on what to say. Needless to say there was nothing much to advance her case in her oral presentation. I will proceed to deal with issues that arise from her papers.

Whether or not the appellant was found guilty of not issuing a bill on 8 February 2014

The appellant argues that she was convicted of not issuing a bill on 8 February 2014 yet she was absent from work. This is surprising considering that the appeal determination on record specifically acknowledges that she was not on duty on 8 February 2014. The fourth bullet on the background facts in the appeal determination letter dated 6 May 2014 states:

“It is not disputed that the appellant was not on duty on 8 February 2014 as evidenced by the minutes, charge letter, and the determination of the Designated Hearing Officer which all noted that, truly the appellant was not on duty on 8 February 2014.”

What the appellant was convicted of is clearly stated in the Final Determination of the matter dated 22 April 2014. She was convicted of failing to take corrective action with her subordinates when it came to her attention that the bills for 8 February 2014 were not given to the guest. It is therefore not correct that she was convicted of not issuing the bill. The failure to act as a manager and take corrective action or deal with subordinates who had not performed as per expectation is what was impugned. It is clear therefore that the appellant did not understand the verdict in her case.

Whether the fact that the customer was issued with a bill on 9 February 2014 was in issue

The appellant argues that the customer was issued with the bill the same day before he left the hotel. The Final Determination states that the guest had breakfast which he ordered from the appellant and there was no bill that was raised up until the guest was checking out. It is also stated that it has been the best practice that bills are issued immediately after meals are served. The final determination further says:

“The fact that as highlighted herein above that the respondent as the Restaurant Manager who is overall responsible for the Bird and Bottle Restaurant had bills which were not raised on 9 February 2014 in the morning when the guest had his breakfast but were raised in the afternoon at checkout was purely not consistent with the express and implied terms and conditions of her employment and confirms the wrong doing of the respondent.”

Clearly the appellant misunderstood what was in issue. The problem was the fact that the customer had to request for a bill on checking out yet the best practice is to issue the bill immediately after the meal. A reading of the record gives the impression that the waiter who delivered the meal to the customer was supposed to give the customer the bill at the time he served the food. The appellant does not deny that the bill was not presented to the customer at the time the food was served. Her appeal is directed at the wrong issue altogether.

Whether or not the appellant had taken action to rectify the anomalies?

The appellant states that she is the one who made sure that the customer had his bill before he left the hotel and there was no prejudice to the customer. The issue is whether or not the appellant dealt with her subordinates who had omitted to bill the customer on 8 February 2014 when she was off duty. The finding of the designated hearing officer which was confirmed on appeal was that she had not. The final determination states:

“No evidence was proffered before me noting any corrective measures that were done by the respondent with regards to redressing the issue wherein a bill is not raised as per the practice of the applicant to the effect of handling her subordinates.”

The issue was not only to ensure that the customer had his bill, but also to take corrective measures on the subordinates. Whilst he bill was prepared, no corrective measures on the subordinates were taken. The appellant’s insistence that she took corrective measures is therefore not borne out by the record.

Whether or not there are standing instructions to when the bills must be issued

The appellant states that there are no standing instructions as to when bills must be issued. The final determination states that the complainant (respondent) made reference to in house systems that the respondent (appellant) was supposed to observe and that the in-house rules, procedures, standing instruction and other documents were known to the respondent (appellant). It further states that the appellant did not dispute the existence of other in house rules and documents. It is trite that what is not disputed need not be proved. The appellant’s contention that there are no standing instructions is not supported by what transpired in the hearing a quo.

Whether or not charges are frivolous and vexatious and are not supported by evidence

The appellant gives the impression that the respondent trumped up charges to make sure that she is dismissed from employment without benefit. This is against a background where the appellant does not contest what is alleged to have happened giving rise to the charges. Her argument seems to stem from a wrong interpretation of the proceedings a quo. Counsel for the respondent stated that the evidence of the witnesses at the hearing was not controverted at all. I am persuaded by counsel for the respondent’s submission that in light of the fact that the respondent is a profit making venture, failure to adhere to standing rules and instructions that ensure profit is realised and leakages are plugged cannot be condoned.

It is trite that an appellate court can only interfere where there is gross misdirection on the part of the lower tribunal. See Attorney General v Howman 1988 (2) ZLR 402. In this case no basis has been laid for this court’s interference with the proceedings a quo. Resultantly the following order is appropriate.

The appeal be and is hereby dismissed for lack of merit.

C Kuhuni Attorneys, appellant’s legal practitioners