Evidence Kariza v Delta Beverages (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/96/16
HELD AT HARARE ON 28th OCTOBER, 2015
CASE
---------




IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/96/16

HELD AT HARARE ON 28th OCTOBER, 2015           CASE NO.LC/H/964/14

AND 4TH MARCH, 2016

In the matter between:-

EVIDENCE KARIZA							    Appellant

And

DELTA BEVERAGES (PRIVATE) LIMITED				    Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr. T. Marume (Legal Practitioner)

For Respondent	:	Mr. G. Chingoma (Legal Practitioner)

MHURI J.

On the 28th October, 2015 I directed that the parties compile and file a full and proper record after which I would then consider whether to determine the matter on the record or direct that a court hearing be held.

The parties duly complied with the directive and having gone through the record, I am of the view that I can determine the appeal on the record.  Section 89 (2)(a)(1) of the Labour Act [Chapter 28:01] refers.

Appellant was dismissed from Respondent’s employ after having been found guilty of six out of eight counts of fraud.  He appealed through the internal structures unsuccessfully.  He then approached this Court appealing against the Works Council Appeals Authority’s decision.

In brief, his three grounds of appeal are that:-

The Appeals Authority erred at law in failing to realise that the 1st level disciplinary panel was not properly constituted as required in the Delta Code of Conduct.

The Appeals Authority grossly misdirected on the law and facts in upholding the decision of the disciplinary committee of finding Appellant guilty of fraud which the essential elements of fraud were not satisfied at law.

The Appeals Authority grossly misdirected at law and fact by arriving at a dismissal penalty when the misconduct had not been proved.

The weighty mitigatory factors which militated against a dismissal penalty were not considered.

As regards ground 1, it is not disputed by Appellant that this ground raises a procedural irregularity, see paragraph 2 of his Heads of Argument.  It is trite that issues on procedure are not raised in an appeal but in a review application.  This particular ground is not a ground of appeal but of review.  It is therefore improperly before this Court and cannot be entertained.  Rule 15(3) of this Court’s Rules Statutory Instrument 59 of 2006 provides a procedure to be followed when one seeks a review of the proceedings he/she has brought on appeal.  That Rule was not followed therefore this ground is struck off.

Respondent has a registered Code of Conduct which defines the acts of misconduct and prescribes the penalties to be imposed.  This Code is binding on both Parties.  Clause 15 and in particular sub-clause 31 defines fraud as:-

“It is fraud to make false statement or claim whether in oral or written form and make any false representation by words or conduct in order to obtain material advantage.”

It is on the basis of this definition that the Appeals Authority found the essential elements (intentional misrepresentation and prejudice) to have been proven.  The allegations against Appellant were that, during the course of executing his duties, he stayed in hotels and lodges but for reconciliation purposes of cash advanced to him, he submitted fake invoices, i.e. invoices which did not originate from the respective hotels/lodges.  Count 3 which Appellant was found guilty of related to Appellant’s stay at Emqameni in Bulawayo in November 2012.  Appellant had submitted an invoice No. 0191 to Respondent which invoice was disputed by the supplier as it was not used.  The prejudice was $68,00.

For November 2012, Appellant submitted a receipt 47005 stating that he was accommodated at Baobab Hotel.  The receipt was disputed by the supplier who also stated that there was no record of Appellant’s stay at that hotel.  Prejudice was $553.

For February 2013, Appellant submitted invoice number 00019 stating that he was accommodated at Golden Acres.  This was disputed by the supplier who indicated that the rooms Appellant alleged he occupied were occupied by some other clients.  The signature on the invoices could not be recognised.  The invoice had not been used, they had not received the amount reflected on the receipt and they did not have a receipt book with the sequence 0475.  Prejudice was $657.

Again for February 2013, Appellant submitted an invoice for Lalani Lodge, which invoice was disputed by the supplier on the basis that it was irregular as it did not have a sequence number, there was no record of his stay at the Lodge.  Prejudice was $390.

For Mayfair Lodge, Appellant submitted invoice number 1169 which was compared with a copy obtained from the supplier and was disputed by the supplier.

For Chimanimani Hotel, the invoices submitted by Appellant were also disputed by the supplier.  Prejudice was $573.00.

It is on the basis of the evidence adduced from the suppliers by the investigator that the charges against Appellant were proven on a balance of probabilities.  It was found as a fact that Appellant had not stayed at some of the hotels/lodges for which he submitted invoices purporting to have stayed there.

It is not denied that Appellant submitted the invoices and receipts to the Respondent for reconciliation purposes.  The invoices and receipts were fake.  It therefore goes without saying that Appellant misrepresented, intentionally so to Respondent by the submission of these documents.  Fraud was therefore proved.

I find no basis to interfere with the Appeal Authority’s confirmation of the Disciplinary Committee’s findings of guilty.

See:	HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996(1)

ZLR 664 S @ 670 – C.E.

in which the principle is stated that an Appellate Court is not to interfere with a decision of a trial court based purely on a finding of fact.

See also	VIMBAI MBISVA vs RAINBOW TOURISM GROUP SC 32/09

in which the above principle was cited with approval.

An intentional misrepresentation indeed has an element of dishonesty.  Dishonesty is a breach of trust one is bestowed with by the employer.  I agree with Respondent’s submission that dishonesty strikes at the heart of the duty of good faith implicit in an employment relationship.

The record shows that mitigatory factors

Clean record of 17 years.

Bread winner

Job market being dry hence no chance of getting another job in the near future

Having been employed by Respondent straight from college

were considered.

Against these, the aggravating factors were considered

Fraud and uttering a false document being a serious offence

Being a Senior Internal Auditor and hence aware of the systems who must ensure 100% compliance and safeguarding the systems and controls

Failure to exercise utmost integrity.

Both factors were considered but the aggravating ones were found to outweigh the mitigatory ones, as a result it was found that dismissal was the appropriate penalty.

It is trite that where the employer is of the view that the act of misconduct goes to the toot of the employment contract, and imposes a dismissal penalty, the Appellate Court cannot interfere with such exercise of discretion unless it has been shown that the discretion was not properly exercised.

See:	TREGER PLASTICS (PRIVATE) LIMITED

vs

WOODRECK SIBANDA & PAUL MAGONDO SC 22/12

No improper exercise of discretion has been shown by Appellant to clothe this Court with the power to interfere with the penalty.

The appeal must therefore fail in its entirety.

It is accordingly ordered that the appeal being devoid of any merit it be and is hereby dismissed with costs.

Matsikidze & Mucheche – Appellant’s legal practitioners

Dube, Manikai & Hwacha – Respondent’s legal practitioners