Joseph Zimunya v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/50/13
HELD AT HARARE 26TH SEPTEMBER 2012
CASE NO
JUDGMENT NO LC/H/50/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/50/13

HELD AT HARARE 26TH SEPTEMBER 2012		CASE NO LC/H/495/11

JOSEPH ZIMUNYA						Appellant

ZIMBABWE REVENUE AUTHORITY			Respondent

Before The Honourable G Musariri, President

For Appellant		Mr T Marume, Attorney

For Respondent		Mr K Renzva, Officer

MUSARIRI, G:

Appellant appealed to this Court against his dismissal from employment by Respondent.  The facts of the case are aptly set out in Respondent’s Heads Of Argument as follows,

“On 01 May 2011 however Lameck Phiri gave the keys to the safe containing money he had collected on 30 April 2011, to the Appellant who did banking for that day.  The Appellant collected a total of

US$98 439 and R193 800.  He put the money and banking documents in the same safe that contained Phiri’s money.  No hand over take over was ever done between the two notwithstanding that huge sums of money

belonging to the Government was involved.  On the day that followed, i.e., the 02 May 2011 the Appellant handed over keys to the same safe which now contained the money he had collected on 01 May 2011, as well as that collected by Phiri on 30 April 2011, to Phiri, Phiri collected a total of US52 471.31, R76 550 and P99 860.00 which was put in the same safe.  Again no handover takeover was done between the two…

On 03 May 2011.  In the safe that was used by the two officers a sum of R50 000 was found to be missing from the Appellant’s collections.  That amount is still unaccounted for.”

The main issue was whether or not Appellant’s actions amounted to gross negligence.  The subsidiary issue was whether or not Appellant’s actions were inconsistent with the terms of his employment contract.

Appellant worked for Respondent as a Cashier at the Beit Bridge border post.  On 1st January 2011 he was appointed as A Banking Officer.  The appointment was valid for 3 months.  Appellant then worked as a Banking Officer.  After the expiry of the appointment, Respondent did not specifically revoke the appointment.  So Appellant continued executing the duties of a Banking Officer.  Thus at the material times, that is, the beginning of May 2011, Appellant was still acting as the Banking Officer.

As the Banking Officer he had custody of keys to the safe.  He was not authorised to release the keys to anyone.  Yet during the period in question he released the keys to a Cashier named Lameck Phiri.  He did so on at least two occasions.  The effect of his actions were that his cash collections commingled

with Phiri’s cash in the same safe.  R50 000 disappeared from the safe.  Respondent was unable to determine who exactly took the cash.

Appellant was not authorised to release the safe keys to anyone. Yet he released the keys to Phiri.  Clearly he violated the conditions of his employment contract.  In other words, his conduct was inconsistent with the terms and conditions of his employment contract.  At the same time I have no doubt that Appellant’s conduct was negligent.  His conduct fell below standard of a reasonable Banking Officer.  The question was whether the negligence qualified as “gross negligence.”

In the matter of ZEETA V Zimbabwe Freight 1990 (1) ZLR 337 the Honourable Justice Chidyausiku J, as he then was, stated at p 340 F that,

“… When an objective test is applied gross negligence is no more than ordinary negligence of an aggravated nature.  How aggravated must negligence be before it becomes gross negligence is only a matter that can be decided on the facts of each case.”

In other words an adjudicator is required to find whether the (ordinary) negligence shown is aggravated in its context to an extent which can be termed as “gross”.  In casu we have a Banking Officer in sole custody of keys to the safe.  He collects cash and puts it in the safe.  He proceeds to give the keys to an authorised person.  This person put his own collection in the same safe.  The collections are comingled.   A large deficit (R50 000) is found in the safe.  It is impossible to tell who took the missing cash between Appellant and Phiri.

Appellant is the one who was the Banking Officer.  He was required to have sole custody of the keys.  The purpose was to prevent unauthorised persons gaining access to the cash.  But twice he released the keys to Phiri without the employer’s authority.   In the circumstances I consider Appellant’s action as gross.  Respondent was entitled to return the guilty verdict on the charge of gross negligence.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT