M & M Fuels (Pvt) Ltd v Manyundo Musekiwa & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/105/2014
HARARE, 03 & 28 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/105/2014

HARARE, 03 & 28 FEBRUARY 2014    		     CASE NO. LC/H/145/13

In the matter between:-

M & M FUELS (PVT) LTD 					Appellant

And

MANYUNDO MUSEKIWA & 2 OTHERS			Respondents

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr. R. Zinhema (Legal Practitioner)

For Respondents		-	Urombo (Trade Unionist)

MUZOFA J:

This is an appeal against an arbitral award made in favour of the Respondents.

Two of the Respondents were employed as security personnel and one of the Respondents Christopher Mungoyo was employed as a fuel attendant.  While the three were on duty on the evening of the 26th of October 2011 a car radio was stolen from a company vehicle parked at the Appellant service station.  On the night that the car radio was stolen the Appellant had assigned security duties to the fuel attendant and duties for the fuel attendants were assigned to the security personnel.  The Appellant reported the matter to the police, however the Respondents were acquitted by the Magistrates’ Court.  On returning to work the Respondents were duly charged for theft and negligence in the performance of their duties.  They were found guilty and dismissed.  Respondents did not challenge the dismissal.  The Respondents filed a complaint with a labour officer to resolve the issue of non payment of terminal benefits and whether Appellant is entitled to deduct the value of the car radio from their benefits.  The matter eventually went before an arbitrator who made a finding that appellant should pay the terminal benefits and is not to deduct the value of the car radio.  In addition Appellant was to approach the Civil Court and sue the Respondents for compensation for the stolen radio.

The grounds of appeal sum up to the following

the arbitrator erred by determining matters outside his terms of reference.

the arbitrator erred by awarding amounts to Respondents that were not proved.

the arbitrator erred by making a factual finding that Respondents Christopher Mungoyo and Gibson Nzenze were not found guilty of theft of a car radio.

the arbitrator erred by not making a finding that Appellant was entitled to deduct the value of the radio since Respondents were found guilty by a disciplinary committee and they did not challenge it.

the arbitrator erred in awarding Respondents $2 003,00 each in the absence of evidence.

I will deal with the grounds of appeal as they appear.

That the arbitrator determined matters outside his terms of reference.

Both the Appellant’s heads of argument and the submissions made before this court did not seek to substantiate this ground of appeal.  The Court will therefore treat this ground of appeal as abandoned.

That the Arbitrator made an award with no evidence before him

It was submitted for the Appellant that the arbitrator made an award totaling $2 003,00 for all the Respondents yet there was no evidence before him.  It was further argued that the arbitrator based the calculations on the word of the Respondents.  The Respondents submitted that no evidence of payslips was produced before the Arbitrator and it was the Appellant’s duty to do so.  The principles to be applied in the calculation of an award sounding in money are very clear.  In the case of RBZ v Swawa’s Estates 1999 (1) ZLR 185 (S) the Supreme Court clearly stated

“… for to quantify damages or indeed make a finding on no evidence is to err in law”.

In casu the Respondents’’ submissions were that evidence was produced in the form of Statutory Instrument 35 of 2011.  The Statutory Instrument sets out the salaries of graded employees that included the Respondents.  It was alleged the leave days accrued were not in dispute and the salaries due to each of the Respondents.  If such evidence was made available before the arbitrator it was for the Appellant to show that the Respondents were not being paid in accordance with the said Statutory Instrument.  For the Appellant as the employer it was just a question of producing the Respondents’ payslips and this would have shown the leave days accrued by each of the Respondents.  Apparently there was no evidence from the appellant.  Appellant cannot seek this court’s indulgence where it did not diligently deal with its matter before the arbitrator.  In my view the arbitrator used the evidence that was before him in making the award.

There is no merit in this ground of appeal and therefore it must be dismissed.  The fifth ground of appeal deals with the same issues as the second ground of appeal.  Applying the same reasoning as the second ground of appeal the fifth ground of appeal is dismissed.

That the arbitrator made a factual error

No further submissions were made on this aspect.  However it is clear that the arbitrator’s finding was that the Respondents Christopher Mangoyo and Gibson Nzenze were not found guilty of theft of the car radio by a competent court, I do not believe that this was an incorrect observation.  The appellant also confirmed this position, the respondents were not convicted by a criminal court.  I cannot fault the arbitrator’s observation.  This ground of appeal lacks merit and it should be dismissed.

That the appellant should deduct the value of radio from the respondent’s terminal benefits.

This is the crux of this case.  This court is dismayed by the appellant’s treatment of its employees.  It seems it is not in dispute that the respondents were entitled to their terminal benefits.  Their contracts were terminated in November 2011 to date the appellant has not paid the respondents their due benefits, because of the car radio that was stolen.  The dispute is whether or not the amount should be deducted, at least the appellant should have paid the benefits less the said value of the radio.  The employer treated the respondents with disregard particularly in view of the economic situation prevailing in the country.

The respondents were found guilty for among other charges theft and gross negligence.  They did not challenge the dismissal what they want is the terminal benefits without deductions for the stolen car radio.  In my view the fact that the respondents did not challenge the dismissal penalty means they agreed with it.    The penalty section of the letters served on the respondents was in the following terms, for Manyundo Musekiwa

“Accordingly you are called upon to surrender all company property… but at the same time I make it very clear that the company will not release any money to you for terminal benefits without taking into account the theft that you have committed resulting in the loss of R7 000.00 to the company, being the replacement cost and value of the car radio that you stole.”

For Gibson Nzenze the penalty section was in the following terms“Accordingly, it is ordered that you are hereby dismissed… whereas I let it known to you that the company will not pay to you any terminal benefits without taking into account the value of the property stolen by yourself.”

For Christopher Mangoyo the penalty section was the following effect

“Accordingly, I order that the accused… and I let the accused be specially advised that the company will not pay terminal benefits to the accused, taking into account the prejudice to the company in respect of… vehicle valued at R7 000.00.”

From the communication in the penalty section it is clear that the appellant

made it part of the penalty that a deduction would be made from respondent’s terminal benefits.  However even where the appellant did indeed know the value of the car radio, it was not stated how much was to be deducted for each of the said respondents.  In essence the respondent did not know how much would their contributions be in offsetting the R7 000.00.  From the tone of the letter it would appear as if each respondent was responsible for the loss totaling $7 000.00 which would be incorrect.

For the appellant it was submitted also that the fact that the respondents were acquitted by a criminal court did not mean they had no case to answer.  I agree with counsel on the perspective that criminal proceedings and disciplinary proceedings are different and the standard of proof is different see Zesa v Dera SC 79/98.  In my view the evidence that was before the Disciplinary Authority did not prove theft even on a balance of probabilities but negligence.  Counsel for the appellant had undertaken to file supplementary Heads of Argument on the appropriateness of the deductions instead of suing respondents separately by the 12 February 2014.  This was not done.  I believe since this was more of negligence than theft the appellant should persue other avenues to recover the value of the car radio.  The terminal benefits should be paid in full, without any deductions.

The ground of appeal should also be dismissed.

In view of what has been said above the following order is made:

The appeal be and is hereby dismissed.

Each party be bear its own costs.

Madzivanzira, Gama & Associates, Appellant’s legal practitioners