Joseph Urayayi v Mutare Bottling Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/34/13
MUTARE 26th SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/34/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/34/13

MUTARE 26th SEPTEMBER, 2013			        CASE NO LC/MC/73/11

AND 25TH OCTOBER, 2013

JOSEPH URAYAYI								Appellant

MUTARE BOTTLING COMPANY (PVT) LTD				Respondent

Before The Honourable G Musariri, Judge:

For Appellant:		Mr. J. Urayayi, Appellant

For Respondent:		Mr. D. Tandiri, Attorney

MUSARIRI, G:

Appellant appealed against his dismissal from employment by Respondent.  The crux of his case is set out in his Heads of Argument as follows,

“12.	The Respondent failed to establish all these essential elements of theft during the hearing much made (sic) and arbitrary decision to dismiss the Appellant.  The Labour Act states that an employee can only be dismissed if it is proved in terms of the law that he was engaged in an act of misconduct stipulated in the Employment Code of Conduct (Section 12B of the Act).

The item in question was a motor spare being a Scania hub.  It was common cause that Respondent’s officials were called to a company named

M & D.  They went there in the company of Appellant and they recovered the hub.  Respondent identified it as its own from certain markings.  Officials of M & D stated that the hub had been brought to them by Appellant.  Appellant worked for Respondent as a mechanic.  There are 2 statements made by the Managing Director of M & D which are filed of record.  Both of them confirm that they got the hub from Appellant.  The 2nd statement is even more damning.  It stated that Appellant admitted that he had stolen the hub from Respondent.  On the other hand Respondent gave contradictory defences.  In the first, he claimed that he bought the hub from a man named Malvern.  In the second version, he stated that he took the hub from Respondent’s Stores Depot.  The last version claimed that the hub belonged to Flambeck Motors on whose behalf he was seeking buyers for the spare.  During oral argument before this Court I pressed him about the veracity of his first defence.  He confessed that he had lied that he bought the spare from Malvern.  The level of dishonesty displayed by Appellant in this case is atrocious.  He simply could not be believed.

That left Respondent’s case as unshaken.  Appellant as their mechanic had access to their vehicles and spares thereon.  The evidence showed that Appellant took the spare from Respondent’s premises to M & D.  He must have intended to sell it to third parties.  He could not give a credible explanation for his conduct.  Ergo, he must have stolen the hub with intent to permanently deprive the owner (Respondent) of possession of the spare.  I am satisfied that Respondent proved its case on a balance of probabilities.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

............................................

G. MUSARIRI

JUDGE