Munyaradzi Tsotso & Anor v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/265/2014
HARARE, 17 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/265/2014

HARARE, 17 MARCH 2014 &                                  CASE NO LC/H/296/2012

9 MAY 2014

In the matter between:

MUNYARADZI TSOTSO						  1ST APPELLANT

And

THOMAS KARONGA						  2nd APPELLANT

Versus

DELTA BEVERAGES						    RESPONDENT

Before The Honourable L Kudya		:	Judge

For the Appellants			L Mauwa  (Legal Practitioner)

For the Respondent			C K Ncube (Legal Practitioner)

KUDYA J:

This is a consolidated appeal of LC/H/293/2012 and LC/H/296/2012 against the decisions of the respondent works council appeal body which confirmed the appellants’ dismissal in cases where the appellants allegedly stole eleven layer boards in contravention of the respondent Code of Conduct.

Facts of the case are that the appellants who were in the respondent’s employ as loader and truck assistant respectively were on 4 December 2011 charged with the responsibility of loading a beverage truck destined for Nyameni. When the truck which they had loaded was intercepted by the respondent’s other employees it was discovered that eleven extra boards had been loaded onto the truck. Upon being asked about the boards the appellants professed ignorance of the same’s presence on the truck. They were however both taken before disciplinary committees which after deliberation concluded that they were guilty of the charge in question. They were subsequently penalised with dismissal from the job.

Aggrieved by their dismissals they mounted various appeals within the respondent’s internal structures without success. At the last level they appeared before the works council appellate body which also threw out their appeal and confirmed their dismissal.

It is against the confirmation of the dismissal that they have now appealed to the Labour Court with the hope that the Labour Court may upset the dismissal penalty, find them not guilty and order that they be reinstated to their original positions without loss of salary and benefits.

The basic grounds of appeal are to the following effect:

Both the appellants were convicted and penalised in circumstances where there was insufficient evidence tendered to find their guilt. Mere removal of the boards from the premises did not connote theft and if indeed the appellants wanted to steal the boards they would have off loaded them prior to their destination where they were confronted by Gomba the operations manager. There was a likelihood that the driver and the assistant would return the boards in question hence negating the argument about intending to deprive the respondent permanently of its property.

Dismissal was too harsh a penalty taking into account that value of the boards was as low as $11-00 and the fact that the appellants had served the respondent for long periods about 16 years with clean records. Further to that given the appellants’ family man statuses a penalty less severe than effective dismissal was just.

Charges levelled against the appellants were false and vexatious thus entitling them to acquittals. In terms of the Code of Conduct which laid down that if charges are preferred in malicious and vexatious circumstances that charged person can raise that as a defence on his/her matter. In particular the witnesses who testified to found the appellants’ guilt had ill motives to do so hence the given verdict and penalty cannot be made to stand.

In the result, the appellants prayed that the dismissals be set aside and that they be reinstated to their original positions without loss of salary and benefits.

On the other hand the respondent maintained in response that there was no misdirection by the works’ council in confirming the appellants’ guilt. This is so because the test used in such cases is that of proof on a balance of probabilities. In its view therefore the conviction and penalty was appropriate and does not deserve to be upset at all.

The penalty of dismissal was merited in both appellants’ cases because notwithstanding the appellants’ clean records at work and family status, the infraction went to the root of the employment contract thus making dismissal an appropriate penalty in this case.

The malicious and vexatious defence could not avail the appellants since in the respondent’s view no such malice existed against the appellants and the witnesses who gave evidence just gave an account which confirmed the appellant’s guilt hence the dismissal.

In the result, the respondent prayed that the appeal be dismissed as in its view such an appeal has no merit.

Before dealing with each of the grounds of appeal in turn it is pertinent to point out at the outset that the consolidation of the matters by consent was occasioned by the facts founding the guilt of each of the appellants which are the same hence no meaningful purpose would be served by concluding the appeals separately. It is also worth noting that it is common cause that the boards were indeed found in the motor vehicle which had been loaded by the appellants. The only triable issue which therefore remained was whether their presence could be attributable to the appellants and if so whether it could be concluded that indeed the taking out of such boards was with the intention to let the respondent lose these boards forever. It is therefore mainly this question which has to exercise this court’s mind in deciding on or whether to upheld or upset the decision arrived at the last level of the internal appeals process structure.

The pavers of the court in relation to appeals in the form of the instant one are set out in cases cited by the respondent in particular Nyahondo v Hokonya 1997 (2) ZLR 475 (SC). Further to that the standard of proof required in cases of this nature is also set out in Zesa v Dera SC-79-98. Finally the question of penalty is in the discretion of the employer and unless if such has been exercised capriciously or outrageously the appellate court would not have any good reason to interfere. See Innscor Africa (Pvt) Ltd v Chimoto SC-6-2012. See also Malimanji v CABS 2007 (2) ZLR 77 (S).

Applying the principle in the above cited cases to the facts of the instant case the court will deal with each of the appeal grounds in turn:

Ground 1

A reading of the records of proceedings at the first level of the appellants charges indicates that the evidence of the operations manager and that of one Zimbudzana demonstrated that the manager intercepted the motor vehicle and discovered on it the boards in question, and that Zimbudzana’s evidence showed that the appellants had loaded the boards in question. Further to that, the appellants failed to explain clearly how the boards found their way onto the motor vehicle in question. They also failed to show how the witnesses could have been said to have been biased against them.

It was apparent that, even though there could be some relationship between the witnesses there was no clear nexus with the discovery of the boards on the motor vehicle which had been loaded by the appellants. The argument that if the appellants intended to take the boards away for good they would have off loaded them elsewhere was without foundation. This is so taking into account that, when Zimbudzane gave his evidence, he indicated that when the truck left, the appellants had asked that it not be secured tightly. It would thus not be far-fetched to conclude that leaving the load loose was a ploy to then allow for the insertion of the extra boards.

In any event, it was also stated in evidence that the boards were not easily visible. This would explain why the operations manager only got to know of the boards’ presence as he was acting on a tip off. The cumulative effect of all these facts which were presented before the disciplinary body and assessed by the internal appeals bodies leads to only one inescapable conclusion that the guilt of the appellants was indeed founded. There is therefore no basis for this court’s interference with the conclusion reached by the works council and all the lower bodies in that respect. This ground thus lacking in merit should accordingly fail.

Ground 2

As already indicated in the cases quoted above, penalty is in the employer’s discretion. In the instant case even though the figure involved was paltry, the fact that the case involved dishonesty meant that it went to the root of the employment relationship. It is therefore not unusual that the employer found dismissal being an appropriate penalty. This court has no cogent grounds for interfering with that penalty. The second ground also lacking in merit should fail.

Ground 3

This ground is intricately linked to the first ground on the sufficiency of evidence on the matter. As stated earlier the evidence from the operations manager and Zimbudzane showed clearly that on a balance of probability the offence of theft had been committed. There was therefore nothing amiss about the appellate bodies below upholding the guilty verdict in respect of the appellants’ cases. This ground also lacks merit and it should fail.

In the final analysis it is clear that all the appeal grounds being devoid of merit the appeal should consequently fail in all respects.

IT IS ORDERED THAT:

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

The appellants’ dismissal is accordingly confirmed.

Each part is to bear own costs.

Mugomeza & Mazhindu, applicants’ legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners