Jabulani Muzabwa v Spar Sam Levy Village

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/134/2014
HARARE, 10 FEBRUARY 2014
CASE NO. LC/H/134/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/134/2014

HARARE, 10 FEBRUARY 2014    		               CASE NO. LC/H/388/13

& 14 MARCH 2014

In the matter between:-

JABULANI MUZABWA						Appellant

And

SPAR SAM LEVY VILLAGE					Respondent

Before The Honourable P. Muzofa, Judge

Appellant 			-	In person

For Respondent		-	Mr. H. Maticha (Human Resources Manager)

MUZOFA J:

This is an appeal against the Negotiating Committee’s decision upholding the Appellant’s dismissal.

The Appellant was employed by the Respondent as a manufacturer in the butchery department.  The Appellant was charged for “breakage of the butcher cold room ceiling. It was alleged that on the 15th of July 2012 Appellant went on top of the Respondent’s cold room and in the process the cold room ceiling cracked.  Appellant thereafter did not report this to his immediate supervisor.  He was formerly charged and convicted for negligent loss or damage to property.  The Appellant appealled to the Local Joint Committee and the Negotiating Committee wherein his appeal was dismissed.  He then noted an appeal to this court.  The grounds of appeal come to the following.

That the Respondent induced the circumstances in that Appellant went into the ceiling to conduct a stock take of goods stored therein.

That the Respondent stored goods in the ceiling yet the ceiling already had a crack.

That the Appellant did not report the matter to his immediate supervisor immediately as the supervisor was away for three days.

That the offence did not warrant a dismissal.

I will deal with the grounds of appeal seriatim.

The Appellant did not dispute that he caused the ceiling crack.  However he raised the issue that he went on to the ceiling to conduct a stock take.  It was not disputed by the Respondent that on the day in question Appellant was conducting a stock take.  What was in dispute was that the stock was not on the ceiling but somewhere close to the ceiling.  The record of disciplinary proceedings has evidence that some foam trays were kept on top of the cold room.  The first page of the record has an outline of the evidence of the Respondent’s representative, one Mutongwizo Mutongwizo indicated that he initially blamed Archiford and Kanembiri who normally go up the cold room to get foam trays …”. The Appellant’s evidence was that;

“it was on the 15th of July, stock take day and I wanted to get foam trays that are on top of the cold room and in the process the ceiling cracked”

In view of such overwhelming evidence I reject the Respondent’s contention that there was nothing kept on the ceiling.  The Appellant was therefore doing his lawful duties when the ceiling cracked, there was no evidence that there was negligence on his part.  I say this in view of the undisputed evidence that the ceiling cracked sometime back and it was repaired.  The Respondent induced the circumstance that led to the cracking of the ceiling and Respondent cannot be allowed to punish Appellant for an act it induced see Mushaya v Glen’s Corporation (Pvt) Ltd 1992 (1) ZLR 162 HC.  This ground of appeal should therefore succeed.

The second ground of appeal is related to the first ground of appeal.  The evidence led before the disciplinary authority showed that the Respondent kept some goods on the ceiling.  The evidence also showed that the ceiling cracked sometime back and it was repaired at a cost of $120,00.  The third ground of appeal also relates to the evidence its premise being that the appellant could not report to his immediate supervisor since he was away for three days.  Appellant claimed he was unaware of the reporting procedures in the absence of the immediate supervisor.  At the onset I must say the charge that Appellant faced was not failure to report but this was used as aggravation it was not disputed that the Appellant’s immediate supervisor Define and the complainant Mutongwizo were away for three days.  It was not shown if the Appellant was aware of the reporting procedures in the absence of these two.  On the return to duty by his superiors he did not report immediately however when he was asked by Mutongwizo he indicated that he caused the crack on the ceiling.  I donot believe that the events show any dishonest, as alleged by the Respondent.  The failure to report at the expected time cannot amount to dishonest in this case.  The real issue is that Appellant admitted when he was asked about the cracked ceiling.  In my view the failure to report is not evidence of negligence nor does it aggravate the offence he was facing.

In the final analysis clearly the Respondent was the author of its own misfortune.  Appellant was conducting a stock take and the goods were on the ceiling.  In light of that the appeal succeeds.  In view of the finding that the Appellant did not commit an offence of negligence there is no need to consider the last ground of appeal relating to the penalty.

Accordingly the appeal be and is hereby upheld,

The decision of the Negotiating Committee be and is hereby set aside.

The Respondent be and is hereby ordered to reinstate the Appellant without loss of salary and benefits, from the date of dismissal if reinstatement is no longer feasible parties may agree on the quantum of damages failure of which either party can approach this court for quantification of damages.

Each party to bear its own costs,