Justice Nechavava v Cafca Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/209/24
HARARE, 12 MARCH 2024 & 8 MAY 2024
CASE NO LC/H/455/23
In the matter between: -
JUSTICE NECHAVAVA
APPELLANT
CAFCA LIMITED
RESPONDENT
---------


==============================

JUSTICE NECHAVAVA

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant

A. Nyamukondiwa (Legal Practitioner)

For the Respondent

W. Magaya (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision that led to appellant’s dismissal from employment following allegations that he had given false information relating to duplicated bar code 106 which could have resulted in loss of the company’s roll of electric cable. He advances 3 appeal grounds styled as follows: -

1) The disciplinary authorities did not pay attention to facts and evidence presented before them to the fact that the allegation levelled against appellant were purely null and void and that appellant cannot be faulted towards same.

2) There was no substantive and incriminating evidence availed by management towards the charge against me before both disciplinary committee and appeals committee (See record of proceedings attached)

3) The charge which led to appellant’s dismissal was handled out of time in terms of the respondent’s code of conduct. In the result appellant prayed that the dismissal be nullified and that he be reinstated with full benefits or that he be paid damages in lieu of reinstatement. In response to the appeal the respondent maintained that: -

**Ground 1**

This ground of appeal is with respect meaningless. It is difficult to comprehend and appends rule of pleading one’s ground of appeal to the extent that it leaves the respondent speculating as regards the complaint that is being raised. A charge can only be null and void if it does not exist in terms of the code of conduct or it is being extracted from a non-existent code of conduct. In the present matter the charge that was preferred against the appellant exists in terms of a valid code of conduct. This purported ground of appeal must be dismissed.

**Ground 2**

This is denied. The important facts that prove the charge are simple to understand. They are as follows: a) Respondents finished products (electric wires) are rolled out onto a pallet. They are given an identity number upon completion of the production process. That number comes in the form of a bar code that I affixed onto the pallet. The bar codes are produced by the planning department and in sequential order. No bar codes can be duplicated or produced twice unless there is authorisation by the planning manager on accordance with written procedure QSP 35 Section 6.5.2024

b) In the present matter Bar Code 26 0000 106 was generated in the system on 18 July 2022 by Vhusimuzi Mlambo for the planning department. The bar code was issued to Wenalas Bizeko on the same day Pallet 26 0000 106 was recorded in the transfer book on the same day and it contained 33 x 225m cells on 7425 m of product.

c) On the 6 September 2022 towards the end of the morning shift appellant approached the planning office to request a bar code for pallet No 26 0000106 for 2,5 month wi4re (7/10.67mm Appealed Baer co stand) He was attended to by Vhusimusi Mlambo from the planning department when Vhusimuzi tried to generate the bar code by entering the palate number into the Pastel system, the Pastel system showed him that the bar code already existed in the system. He highlighted this to the appellant Code further told the appellant that he was unauthorised to regenerate the bar code and showed the appellant the evidence in the bar code issuing register that he had issued the bar code to Wencials Bizeki in July 2022. Appellant went back to his workstation without the bar code.

d) On the 14 September 2022 around 11 am in the morning while receiving products from the factory Vimbayi, another employee discovered that there was a bread on a pallet which duplicated pallet number 24 0000 106 for 2,5mm 2 earth wire and raised an incident report.

e) Investigations were carried out and it was established that on 6 September 2022 appellant recorded 6,3km of 2,4mm 2 earth wire in the shrink wrapper copper tracking book pallet number 26 0000 106. This is despite the appellant having been told by Vhusimuzi that this bar code already exists. This recording was clearly false and deliberately misleading and it was done by the appellant who knew that this bar code had already been used. This should be the end of the matter and that is sufficient to meet the requirements of the offence of giving false evidence as defined in the code of conduct.

f) Further investigations led to the respondents reviewing CCTV footage for the period. CCTV footage shows the duplicated pallet being moved by a forklift from the manual collars (1-6) to the shrink-wrapped area on the 6 September 2022 at timed 17.24 hours and was placed adjacent the short length coils table by the production office stair case. The bar code 26 0000 1910-ZG 000105 were generated in the pastel system by Vhusimuzi on 1 July 2022 and were topped for by shrink wrap operator Wenalas Bvuzeki.

g) Bar code number 26 000 102 was recorded on the rapper tracking book on 8 July 2022 by Justice for 6 075 m of 2,5mm2 earth wire. Barcode 26 000 103 was recorded in the copper tracking book on 9 July 2022 by appellant for 16,875m of 2,5mm2 Elwire Board No 26 000 104 was recorded in the copper ready book on 17 July 2022 by Reward Quantity 7,425m coil. IDs G0010413 to G0010445 of 2,5mm2 earth wire. Barcode 2G 000104 was recorded on the security guard lay book (as proof that the security guard has verified the quantities on 18 February 2022 and the quantity recorded was 33 x 225m (7,425m) for the same coil IDs above. There is no record in the transfer book for pallet 26 000 104 was transferred to finished goods.

h) Coincidentally on 18 July 2022 the transfer book shows that pallet number 26 000 106 (the duplicate one) was transferred and the pallet has 7425m which is the same entity as pallet number 26 000 104. Barcode number 26 000 106 which was only recorded in the copper tracking book by Justice on 6 September 2022 and the pallet had 278 x 225 (6,3000m) No pallet 26 000 106 is not recorded in the security log book on 18 July 2022. The pallet 26 000 106 was recorded in the security log book on 12 September 2022 quantity 6300M. At the transferring stage it turned out that pallet 26 000 106 had a duplicate bar code as the same number had been used on 18 July 2922. The label where the bar code is struck was done by appellant on the same day 6 September 2022 Quarterly 28 x 225m (6300m) i) What is evident from the above is that the act of duplicating the bar code by the appellant was false, misleading and dishonesty. It was well calculated and well planned and the intention of the appellant …. this was to eventually steal this product. The above is the basis of the guilty verdict which I respectfully submit cannot be faulted. The offence of giving false evidence is deferred in section 6.4.5. of the Code of conduct as a) ‘Deliberately giving untrue, erroneous or misleading information or testimony whether recording a second barcode after being told about the existence of the first one fits equally in this definite. The ground of appeal must be dismissed.

**Ground 3**

Appellant was never found guilty of stealing but it was concluded that by dishonesty not record bar code 26 000 106 in the copper tracking register appellant had the intention of eventually stealing the pallet. This is further explained by the finding that 12 transfers were undertook and appellant continued to agree this drum which he deliberately conceded by not recording it. In the result respondent prayed that the appeal be dismissed without costs.

The appeal grounds though inelegantly crafted speak to a single issue of whether indeed it was proper for the appellant to have been found guilty of giving false evidence in the context of all the facts of the matter. It is therefore only the resolution of this issue which can put to rest all the issues raised by the appeal grounds and the lengthy response by the respondent employer.

At the outset it is important for the court to ascertain what it is that appellant was alleged to have done or not done connecting the charges that were preferred against him. For the record appellant was charged with “theft, Fraud, and other related matters in particular clause 8, false evidence.

The brief facts of the matter are the appellant approached planning department for a bar code on 6 September 2022 and was advised that bar code 106 had already been issued. A few days later it was discovered that bar code 106 had been duplicated but none of the employees was owning up to the duplication of the same.

Notwithstanding the information on 6 September 2022 to the effect that bar code 106 had been used, appellant was said to have gone ahead and recorded bar code 106 in the tracking book which recording however was concluded to be false since on 14 September 2022 it was discovered that bar code 106 had been duplicated. No one admitted making the duplicated bar code but the employer concluded that appellant had given false evidence by recording bar code 106 when he had been told had already been used.

He was also accused of letting the roll of earth wire lie idle without a bar code for a number of days giving the impression that he wanted to steal it. Further argument was advanced that he had not elevated the bar issue to his superiors when he was told that bar code 106 was already used yet the sequence in his tracking book suggested that 106 was the correct code he had to record sequentially.

Appellant denied the charge and maintained that he was being sacrificed for the fact that he stated that he did not know who had generated the bar code and that he did not elevate the bar code issue to his superiors.

A reading of the shop floor proceedings revealed on page 17 and page 22 of the record that the employer was of the view that appellant was hiding information of who had duplicated the bar code and that the since no one was owning us so appellant was guilty of giving false evidence. The major difficulty with the case is that whilst the response to the notice of appeal sets out succinctly that what the employer viewed as giving of false evidence was appellant’s endorsement of 106 in the tracking book yet he had been told that 106 had already been used, the record of proceedings however does not speak to that at all.

If regard is had to the findings by the disciplinary committee these just spoke to the fact that the code was lying idle for days without appellant’s action and also that no elevation of the matter was done by the appellant. At the end of the day the matter is so hazy that it is difficult to conclude how appellant’s guilt was birthed if regard is had to what in the record of proceedings. The shop floor proceedings do not at all speak to the infraction in the manner in which it is explained by the response to the appeal.

Such a set up therefore seems to be in sync with the argument by the appellant that respondent went on a wild goose chase or pattern bombing exercise of dismissing all and sundry after it failed to conclude on who had duplicated the bar code. Given such a scenario it becomes difficult for this court to conclude that respondents defence has met the threshold set out reported in **Hama v NRZ** 1996(1) ZLR 664(S). It is the court’s view that it is an abuse of a trier of fact is discretion to find one guilty on the basis that the employer is not so sure as to who did what when the infraction was committed. The court is satisfied that the case at hand is one that calls for vacation of the guilty verdict and the dismissal penalty as those are not in sync with what appellant was charged with and what respondent proved in its case. The appeal should therefore succeed.

**IT IS ORDERED THAT**

Appeal being merited it be and hereby succeeds. The decision leading to the appellant’s guilty verdict and dismissal penalty be and is hereby set aside. Appellant is reinstated to his job without loss of salary and benefits from his date of dismissal. If reinstatement is no longer possible respondent is to pay appellant damages at an agreed sum between the parties or to be set by the court on application by either party.

*Ingwani Chipetiwa Group of Lawyers, Appellant’s Legal Practitioners*

*Coglan, Welsh and Guest, Respondent’s Legal Practitioners*


LC/H/2024
LC/H/
--- END OCR FALLBACK ---