Lovemore Luwaca v Delta Beverages Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/466/2016
HARARE, 26 JUNE 2016
CASE NO. LC/H/699/14
JUDGMENT NO LC/H/466/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/466/2016

HARARE, 26 JUNE 2016				      CASE NO. LC/H/699/14

AND 5 AUGUST 2016

In the matter between:-

LOVEMORE LUWACA						Applicant

And

DELTA BEVERAGES LIMITED					Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr T Marume (Legal Practitioner)

For Respondent		Mr K Ncube (Legal Practitioner)

MAXWELL, J

This is an appeal against the decision of the Works Council Appeals Authority upholding the decision of the Disciplinary Committee to dismiss Appellant.  Appellant was employed as a Senior Internal Auditor.  In June 2014 Appellant was charged with misconduct after allegations of making a false reconciliation of cash advanced as travel advances.  Appellant was accused of uttering a false document relating to his stay in various hotels and lodges whilst on company business.

Appellant appeared before a disciplinary committee and was found guilty.  A penalty of dismissal was meted.  He appealed to the Appeals Committee at Works Council level.  The Works Council Appeals Committee dismissed the appeal. Aggrieved, Appellant appealed to this court on the following grounds;

The Appeals Authority erred at law in failing to realize that the 1st level disciplinary panel was not properly constituted in terms of the Delta Beverages Code of Conduct which stipulated that the disciplinary proceedings against the Appellant were suppose (sic) to be initiated by the Appellant’s immediate supervisor.    In the case of the immediate supervisor recusing himself/herself only then can another same level supervisor takeover.  This amounted a (sic) procedural irregularity which rendered the proceedings null and void.

The Appeals Committee grossly misdirected itself on the law and the facts in upholding the decision of the disciplinary Committee of finding the appellant guilty of fraud in view of the following facts which militated against a finding of guilty;

The Appeals Authority upheld the guilty verdict of fraud when the essential elements of fraud were not satisfied at law for all the counts and charges raised.

The employer failed to disprove that the invoices and receipts submitted did not originate from the respective sources and that manipulation of the documents by hotel staff could not be ruled out.  The audit manager who did the investigation indicated before the first level disciplinary committee that he did not do investigation (sic) the internal checks of the hotel internal systems on the basis that it was not his mandate.  In view of that position how then did he conclude that appellant was the one in the wrong?

The Appeals Authority grossly misdirected at law (sic) and fact by failing to take into account the admitted fact that the investigating Officer had instructed supplies to be hostile to Appellant for verification purposes, thus the Appellant was prejudiced in its defence.

The Appeals Authority grossly misdirected at law (sic) and fact by arriving at a dismissal when the misconduct alleged had not been proved satisfactorily at law.

The disciplinary committee as well as the appeals committee erred at law in casting a blind eye to the weighty mitigatory factors which were presented on behalf of the appellant and militated against imposing of a dismissal penalty.  Further, none of the factors in mitigation relating to his work and personal circumstances was controverted.  Moreso nothing was presented in aggravation.

Appellant prayed for the setting aside of his dismissal coupled with an order for his reinstatement without any loss of salaries and benefits.  In response respondent stated that there was no prejudice suffered by appellant as a result of the composition of the disciplinary committee which he accepted.  Respondent further stated that the Appeals Committee did not misdirect itself and no evidence was led to the effect that the suppliers had been instructed to be hostile to the appellant for verification purposes.  Respondent also stated that the penalty meted was appropriate as appellant had been in a position of trust.

The first ground of appeal deals with procedural issues which should be dealt with on review.  It is therefore improperly included on appeal and is therefore struck out.  The second ground of appeal criticises the Appeals Authority for upholding the guilty verdict.  Appellant claims that the elements of fraud were not satisfied and that there was no proof that the invoices and receipts did not originate from the respective sources.  The record of proceedings shows that the determination of the disciplinary hearing has the following findings.

Mishie’s Gwanda hotel disputed the invoice submitted by appellant and stated that they did not accommodate him on the 6th of June 2013.

Appellant stayed for only one night (2/10/12) at Nesbitt Arms Hotel but submitted an invoice claiming to have stayed for five nights.

Appellant does not appear on the Elephant lodge checklist for the four nights claimed.  The room he claimed to have occupied had another person’s name for the relevant period.

The Appeals Authority cannot be faulted for upholding the guilty verdict.  The above findings confirm fraud.  Appellant claims that there was no proof that the invoices and receipts did not originate from the respective services when the investigations resulted in the findings listed above.  The onus on the respondent was discharged on a balance of probabilities. It was up to the appellant to prove the contrary.

The third ground of appeal criticises the Appeals Authority for failing to take into account the admitted fact that the investigating officer had instructed suppliers to be hostile to appellant for verification purposes, resulting in appellant being prejudiced in his defence.  As stated for respondent, it was not admitted that the investigating officer had instructed suppliers to be hostile to appellant for verification purposes. The record of proceedings shows that the investigating Officer requested Nesbitt Arms to send copies of the invoices that had been requested by one Peter Jack.  The minutes of the disciplinary hearing at immediate superior level on 24 June 2014 shows that there was no intention to verify the facts for all the counts.  On page 47 of the record, the management representative asked

“can you get that person from Mishie Gwanda to confirm?”

Appellant’s representative responded

“I did not say we want someone from Mishie Gwanda but we are saying the invoices we submitted were obtained from Mishie’s.”

Clearly there was no intention on the part of the appellant to verify the invoices from Mishie Gwanda’s.  It must therefore have come as an afterthought to complain that the suppliers had been instructed to be hostile.  That issue was not mentioned in the early stages of the disciplinary proceedings.  I therefore find no merit in the third ground of appeal.

The fourth ground of appeal faults the Appeals Authority for arriving at a dismissal when the misconduct alleged had not been proved satisfactorily at law.  As stated above, the findings of the disciplinary committee cannot be faulted.  Appellant sought to place reliance on the case of Astra Industries v Peter Chamburuka SC 27/12 for the proposition that where a person is charged in a disciplinary hearing with an offence of a criminal nature, such an allegation should be proved beyond a reasonable doubt.  Appellant argues that the respondent was duty bound to prove the essential elements of fraud beyond any reasonable doubt.  Appellant’s submission ignores a statement in the case he seeks to rely on. Omerjee AJA (as he then was) in the judgment stated on page 3.

“… It is not necessary to determine whether or not this principle should apply to ordinary disciplinary proceedings in labour matters.”

Appellant has not referred to any authority that settled the matter which was not necessary to determine in the above quotation.  Respondent referred to the case of ZESA vs Dera 1988 (1) ZLR 500 which confirms that the proof in civil matters is on a balance of probabilities.  As stated before, the appellant’s guilt was proved on a balance of probabilities.  I therefore find no merit in the fourth ground of appeal.

The fifth ground of appeal criticises the disciplinary committee for casting a blind eye to the weighty mitigatory factors which were presented on behalf of the appellant and militated against imposing of a dismissal penalty.  Appellant states that none of the mitigatory factors relating to his work and personal circumstances was controverted and nothing was presented in aggravation.  The record of proceedings indicates that appellant’s representative made submissions in mitigation at the disciplinary hearing.  It also shows that at the Appeal hearing the chairperson asked if there were any further mitigating favours to add or subtract from what was on record.  Again appellant’s representative addressed the committee in further mitigation.  One gets the impression that by saying the committee cast a blind eye to the weighty mitigatory factors appellant is of the mistaken belief that the existence of mitigation results in a lesser penalty being imposed.  The determination of the appeal hearing dated 15 July 2015 clearly states

Your “weighty” mitigation is far outweighed by the gravity of the offences you committed ….”

It is trite that the penalty to be meted in a particular case is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of the particular case dictate otherwise.  See Malimanji v CABS 2007 (2) ZLR 77.  It is also trite that once an employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be repudiation of contract which it accepted by dismissing the employee from employment, the question of penalty less severe than dismissal being available for consideration does not arise unless it is established that the employer acted unreasonably in having a serious view of the offence committed by the employee.  See Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03.  No basis has been laid for this court to interfere with the discretion of the employer.  In any event in the case of Toyota Zimbabwe v Posi SC 55/07 dismissal was held to be appropriate for a first offender.  In the final analysis I find no merit in the appeal.

Accordingly the following order is appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Matsikidze & Mucheche, appellant’s legal practitioners

Messrs Gill, Godlonton & Gerrans, respondent’s legal practitioners