Innocent Satande v Altifin Insurance

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/132/2014
HARARE, 20 FEBRUARY 2014 &
14 MARCH 2014
CASE NO LC/H/924/2012
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/132/2014

HARARE,20 FEBRUARY 2014 &		CASE NO LC/H/924/2012

14 MARCH 2014

In the matter between:

INNOCENT SATANDE						APPELLANT

Versus

ALTIFIN INSURANCE						RESPONDENT

Before The Honourable E Muchawa  :  Judge

For the Appellant		N Manyangadze (Legal Practitioner)

For the Respondent		J Muchada (Legal Practitioner)

MUZOFA J:

This is an appeal against the decision of the respondent’s Appeals Committee made on 15 October 2012.

The appellant was employed by the respondent as a Senior Underwriter based at the Mutare Branch. Two people manned the Mutare Branch. In August 2012 an audit was conducted at the Mutare Branch and it revealed the following discrepancies:

Between the periods 28 May to 30 May 2012 the appellant had issued RTA insurance cover notes totalling $315-00 to several clients without issuing corresponding receipts.

On 30 May 2012 the appellant had a shortfall of $142-00 that he could not account for.

Delayed bankings in that money receipted on 31 December 2011 by the appellant were banked on 13 January 2012, money receipted between 2 January and 11 January 2012 were banked on 13 January 2012.

The appellant was charged with four counts being unlawful taking of company funds with the intention of permanently depriving the company, applying a wrong use or unauthorized purpose for funds belonging to the company, disregarding good work practices and normal procedures and refusal to comply with normal rules, procedures or requirements. The appellant was found guilty and dismissed; the appeals committee upheld the dismissal. The appellant then lodged an appeal to this court. The grounds of appeal set out in the Notice of Appeal are set out as follows:

That the committee erred in holding that the hearing was conducted within the stipulated time limit.

The appeals committee erred in holding that the appellant was given ample time to prepare for his case.

The respondent unfairly treated the appellant by failing to provide him with his appeal papers in time.

The committee showed bias against the appellant by bringing in new materials which were not used during the first hearing.

The committee erred in holding that the hearing was conducted in a language which was comfortable with the appellant

The committee erred in holding that the appellant was given time to cross-examine the witness who was in Mutare yet evidence suggested otherwise.

The committee erred in holding that there was no proper splitting of charges.

The committee misdirected itself on the findings of facts.

The committee erred in holding that the hearing was not pre-determined when there was ample proof to prove the same.

10.The committee erred in not fully considering all the mitigatory factors which for out-weighed aggravating features, in the end a severe penalty was then imposed.

Before the matter proceeded into merits counsel for the respondent raised a point in limine that grounds of appeal one to seven and nine are grounds for review and not grounds for appeal. This submission was premised on the fact that the said grounds relate to procedural irregularities. Counsel for the appellant did not make any submissions to controvert the points in limine raised. To that extent the court upheld the points in limine. Having made that decision the grounds of appeal the parties had to address were streamlined to ground of appeal eight and ten. I will deal with the two grounds of appeal in turn.

Whether the Appeals Committee misdirected itself on findings of fact

This ground of appeal was not argued further in the appellant’s heads of argument even before this court. In any event a perusal of the record of the disciplinary hearing shows that there was overwhelming evidence against the appellant. On the dates that the insurance cover notes were issued without receipts it was the appellant who receipted monies, his colleague Bridget was not on duty. In relation to the delayed banking there was evidence that it was the appellant’s responsibility to ensure timeous banking of revenue. The position of the law is also very clear in so far as interference by an appellate court on factual findings. The court can only interfere with factual findings of a quasi-judicial tribunal where it has been shown that the decision was grossly irrational or unreasonable, See Nyahondo v Hokonya&Ors 1997 (2) ZLR 457 (SC). In casuit has not been alleged nor was it shown that the decision of the Appeals Committee was grossly unreasonable. This ground of appeal has no merit and therefore dismissed.

That the Appeals Committee failed to consider mitigation

The penalty to be meted out is primarily an exercise of discretion by the employer. The court will only interfere with the exercise of discretion by an employer where it has been shown that the exercise of such discretion induces a sense of shock see ZB Financial Holdings v Manyarara SC-12-12. Where an employer is of the view that the offence committed by an employee goes to the root of the employment contract, the employer is entitled to dismiss the employee Mashonaland Turf Club v Mutangadura SC-5-12.

In casu the appellant was the person in charge of the Mutare Branch. His position was a position of authority grounded in honesty and trust. The appellant’s conduct by failing to issue receipts after receiving money from ‘potential clients’ amount to theft and that is a serious breach of the duty of good faith that employees owe to the employer. The appellant acted in andespicable manner and it cannot be expected that the employer would mete out any penalty other than a dismissal. For by not dismissing the appellant, the respondent would retain an untrustworthy employee. I believe this ground of appeal is also meritless and should be dismissed.

Accordingly the appeal be and is hereby dismissed.

No order as to costs.

Mapaya& Partners, appellant’s legal practitioners

Dube, Manikai&Hwacha, respondent’s legal practitioners