Kenneth Sindumba v Farm & City Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/396/16
HELD AT HARARE 24 MAY 2016
CASE NO
JUDGMENT
LC/H/396/16
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IN THE LABOUR COURT OF ZIMBABSWE			JUDGMENT LC/H/396/16

HELD AT HARARE 24 MAY 2016				CASE NO LC/H/1033/15

& 23 JUNE 2016

In the matter between:

KENNETH SINDUMBA					Appellant

And

FARM & CITY CENTRE					Respondent

Before The Honourable L Kudya, Judge

Appellant			In person

For Respondent		Mrs C N Mapfidza (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the National Employment Council for the Commercial Sectors Appeals Body (NECCS).  It confirmed the Local Joint Committee (LJC) decision where it upheld the guilty verdict for appellant and confirmed his dismissal penalty.  Background to the matter is that appellant who was in the respondent’s employ had occasion in November 2014 to be suspended from employment without pay and benefits following allegations of abusing his staff account to purchase goods using the same and taking the cash equivalent which the customers would have paid.  He was also said to have increased his credit limit without the necessary approval or authority.  He was consequently brought before a disciplinary committee which found him guilty of the infractions and dismissed him from employment.

Aggrieved by that decision he appealed to the Local Joint Committee which also confirmed his guilty verdict and dismissal penalty.  This drove him to the NECCS which in turn confirmed the Local Joint Committee’s decision.  Again dissatisfied by the NECCS decision he appealed to the Labour Court which appeal is the subject matter of this judgment.

Appellant cited the following as his appeal grounds:

No hearing was done by NECCS

The dismissal was not based on procedures but non-compliance of the charges that were raised making decision on no evidence.

In the result appellant prayed that the appeal be allowed.  In response the

respondent maintained that the appeal was not merited and had to be dismissed with costs on a higher scale for lack of merit.  In particular it maintained that;

There was no legal requirement for NECCS to hold a hearing.  It was enough for the committee to conclude the matter on the papers presented before it.

NECCS followed procedures laid down by the Collective Bargaining Agreement (CBA) beside labour matters need not be decided on technicalities.

Appellant was duly charged per the Sector’s Code of Conduct.

Evidence was clear together with his own admissions that he could not justify the

purchases done as alleged.

Appeals touching on the use of discretion by lower tribunals have the settled legal position that they can only be vacated if it is demonstrated that the said discretion was irregularity and arbitrarily used.  It is not in the least intended that the appellate tribunal substitutes its discretion for that of the lower tribunal.  (See AG v  Howman 1988 (2) ZLR 402 (SC).

A reading of the record of the disciplinary proceeding shows clearly that appellant admitted to acting as alleged.  His main argument was however that everybody was doing it at the workplace.  He thus felt sacrificed for the sins of the rest of the staff who were breaching the regulations at his workplace.  The case of Zimbabwe Banking Corporation v Mbalala SC-55-15 stated clearly that the excuse that everyone was in breach does not absolve one who is fingered as being in breach of the regulations.  It is therefore clear that the “everyone” argument can not avail the appellant.

It is also worth noting that as stated by respondent there is nothing in the NECCS Code that obliges it to conduct an oral hearing for the parties.  The court can therefore not fault it for concluding the matter as it did.

The argument about the charge and evidence also does not find support from the record.  The record is replete with appellant’s admission hence court cannot fault NECCS for confirming the Local Joint Committee decision on that account.

In the ultimate it is apparent that all the appeal grounds are without merit.  The appeal should consequently fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed.

Each party to bear own costs.

Dzoro & Partners, respondent’s legal practitioners