MS Debraelbin (Takavada) Madanzi V Edgars Stores Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/291/2020
HARARE, 2 NOVEMBER 2020
CASE NO. LC/H/193/19
AND 4 DECEMBER 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/291/2020

HARARE, 2 NOVEMBER 2020 					    CASE NO. LC/H/193/19

AND 4 DECEMBER 2020

In the matter between:

MS DEBRAELBIN (TAKAVADA) MADANZI			APPELLANT

versus

EDGARS STORES LIMITED					RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr S. Muhambi (Trade Unionist)

For the Respondent			Ms R. Rukara (HR Officer)

MAKAMURE J:

The appellant was dismissed from the respondent’s employ following disciplinary proceedings. The initial hearing acquitted her of wrong doing. The employer was aggrieved by the outcome. It appeared internally and the appeal was successful. This led to her being convicted. She was penalized with dismissal. She was aggrieved by that outcome and appeals to this court on the following grounds.

“1.	The finding that appellant used a voucher which did not indicate how payment was done, arrival and departure times, what room was booked into was wrong.

…

2.	The finding by the appeals committee was wrong in that it laid blame on the appellant.

…

3.	The appeals committee blundered as it ended up creating another charge against the roll (sic) of an appellate body.

…

4.	Any reasonable tribunal would not have found appellant as an unreliable person as done by the tribunal a quo.

…

5.	Where a record has to be taken into account, it has to deal with current warnings and not the expired ones.”

The record may prove that she once served for a demotion warning which has since expired. She has no outstanding warning. The appeals committee erred where it concluded that appellant had a bad record which proves her probable dishonesty (sic) act.”

The facts of the matter are summed up in the first paragraph of the determination by the appeals committee. These are they.

The appellant was employed by the respondent as a Collections Clerk in the respondent’s Harare Regional Collections office. In May 2019 she travelled to Bulawayo on the respondent’s business. While there she was going to stay with relatives therefore she was given funds in advance for use during the trip. However, when she got to Bulawayo she was not able to stay with her relatives as she had anticipated. She therefore ended up staying at the Continental Hotel, Bulawayo. According to the record and her evidence (p 29) the appellant paid the hotel the sum of $70-00 which covered both bed and breakfast.

When the appellant left the hotel she paid for a meal which she said was for breakfast and yet the $70-00 she paid already covered her breakfast. In other words, she should not have paid for the meal as she was entitled to breakfast. She should have first been given a packed meal to take away at no extra charge. She was given a receipt/invoice for paying for her breakfast and left.

When she returned to Harare, she submitted her papers of expenses in support of her claim on how she had used the money which had been advanced to her. The documents included this invoice/receipt for the breakfast she took away which was chicken and chips. Her immediate superior duly approved the papers and sent them to the respondents Head Office in Bulawayo. It was the Head Office that her proved expenses were returned to the appellant’s superior or line manager on the basis that her voucher for dinner was not dated. This resulted in the line manager having to investigate. The investigations resulted in the appellant being charged with dishonesty in terms of the applicable code as follows:

“6.9. B	Deliberately giving untrue erroneous or misleading information or testimony whether verbally or in writing;

6.9 D	Uttering (presenting or attempting to utter fraudulent or false documents”

As already noted the Disciplinary Committee acquitted her of wrongdoing. In coming to the decision of acquittal the Chairperson cast her/his vote as there was a tie of votes. The casting vote decided in favour of acquitting the appellant. Equally at appellate level two members of the Appeals Committee were in favour of the lower decision while the other two were against. The Chairperson’s casting vote resulted in the finding of guilty against the appellant.

It is not in dispute that the document produced by the appellant in support of her claim for breakfast is not dated. It does not show the room in which the appellant used. It shows that dinner was valued at $30-00. It is an invoice which if the appellant paid the sum of $30-00 is not marked “paid” or some inscription to that effect in support of the appellant’s evidence. Investigations were conducted and information from the hotel appeared to the disciplinary authority to be unclear. However, the Appeals Committee made the following observations about the invoice:

“1.	It did not indicate how payment had been made. All the relevant areas pertaining to mode of payment was left blank.

2.	It did not indicate her arrival at the hotel;

3.	It did not indicate her departure day

4.	It did not indicate whether she checked into a twin, single, double …. type of accommodation etc.

5.	It did not indicate the room into which she had checked.”

I respectfully agree with the observations made by the Appeals Committee. What I find glaringly clear is that the appellant was entitled to breakfast. This means that she could not pay for another meal and call it breakfast. If paid for it then it could not be breakfast. She insists that it was breakfast. She explained that on that morning she woke up late, well after breakfast time. Further, she was not feeling well. Still further the phone in her room was not working. Even if all the three explanations are right, they did not entitle her to purchase a second breakfast when she was already entitled to one. It was therefore not necessary for her to submit a claim for breakfast and expect to be paid and yet the $70-00 covered bed and breakfast. It was therefore not necessary for her to submit this particular claim. The claim was made deliberately it being untrue and misleading. In other words, she was being dishonest by making a claim for breakfast separately and yet it had already been paid for. Much has been said about the hotel staff and their unreliable evidence. In my respectful view, all this was brought about by the appellant’s unnecessary claim. A view was also expressed with respect to the appellant’s superior. That view was to the effect that the line manager may have been unduly biased against the appellant. However, the record shows that it is not he line manager who questioned the undated document. It was the respondent’s head office. The line manager was put in a situation where she had to investigate the authenticity of the claim for the 2nd breakfast. The document was marked dinner. What is important is what the appellant calls it. She called it her voucher for a breakfast which she had paid for notwithstanding the fact that for her own admission she had already paid for bed and breakfast.

I have considered the findings of the Appeals Committee. I find that its findings sufficiently answer the grounds raised. It was up to the appellant to check the invoice or receipt(s) which she got to ensure that they reflected all the necessary information for example the date of arrival, date of departure etc. She knew that this document would be submitted to her employer. I am not sure whether any employer would compensate an employee who presents an undated receipt or invoice. The question of whether or not the appellant had previous convictions is not of major concern. The major issue is her dishonesty. Such dishonesty was, in my view, proved on a balance of probabilities, which is the requisite onus. Therefore, I associate myself with the findings of the Appelas Committee.

In Fraser Muyaka v BAK Logistice (Pvt) Ltd SC 39/2017 the Supreme Court held that:

“In the absence of a finding of gross unreasonableness, the appellate court or tribunal cannot substitute its own discretion simply because it would have taken a different course… the respondent’s exercise of discretion resulting in the dismissal of the appellant was not outrageous and it did not defy logic and thus did not warrant interference.”

See also Malinjanjani v CABS 2007 (2) ZLR 77 (S); Barros v Chimpondah 1999 (1) ZLR 58 (S); (1) Harold Crown (2) Portriver Investments (Private) Limited v (1) Energy Resources Africa Consortium (Private) Limited (2) Energy Resources Africa (Private) Limited SC 3/2017.

In view of the foregoing I find that there is no merit in all the grounds of appeal. The appeal fails.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.