Nazariyo Notice v Teecherz Furnishers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/824/2014
HARARE, 12 NOVEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/824/2014

HARARE, 12 NOVEMBER 2014	    		           CASE NO. LC/H/634/14

AND 19 DECEMBER 2014

In the matter between:-

NAZARIYO NOTICE						Appellant

And

TEECHERZ FURNISHERS					Respondent

Before Honourable E Muchawa, Judge

For Appellant		In person

For Respondent		Ms P. Chitanda (Human Resources Officer)

MUCHAWA, J:

This is an appeal against an arbitral award which dismissed appellant’s appeal for unfair dismissal.

The appellant was employed by respondent as a salesman/driver until 17 October 2013 when he was dismissed.

Appellant was charged in terms of the National Employment Council for the Commercial Sectors (N.E.C.C.S) Code of Conduct Group IV Offences, Item 5.  The charge was of “Dishonesty and Other Related Offences.”  In particular of “unlawful taking of property with the intention of permanently depriving the company of the use of such property.

It is common cause that appellant received $278.00 from a customer towards payment into her credit account, sometime in July 2013.  Such amount was transferred into appellant’s eco-cash account but was not remitted nor receipted into respondent’s books of account.  The non payment was discovered at a handover take over process conducted on the 4TH of August 2013.  Appellant only paid off this amount on the 5th August 2014.

Appellant explains that he could not receipt this amount earlier as his cell phone had broken down and he could not retrieve any messages.  It is further explained that books of account would be closed on the 5th of every month and the delay in remitting the money cannot sustain a conviction on the charge.

The eight grounds of appeal before me raise the following issues for my determination;

Whether the disciplinary hearing was conducted in a procedurally fair manner.

The propriety of the conviction.

I deal with each of these issues below as the appeal is opposed.

Was the hearing conducted in a procedurally fair manner?

Appellant’s first point in this regard is that the respondent did not follow the correct procedures in dismissing him as it failed or neglected to suspend him and to conduct investigations.

Respondent’s position is that appellant was not prejudiced by the non suspension but actually benefitted from it.

A perusal of section 4 of the N.E.C.C.S. Code of Conduct and Grievance Procedure lays out the disciplinary procedure.  The first step is for the designated officer to notify the employee of the nature of alleged offence and of the impending investigations.  Thereafter, if it is an offence warranting dismissal then the employee shall be suspended.  Gathering and recording of evidence and hearing the employee are other steps to be followed.

In submissions before me, appellant pointed to the prejudice suffered as a result of respondent’s failure to follow such stages.  He intimated that he was given an impression that there was no serious matter to warrant the securing of a representative and that it was a mere formality.

Appellant further avers that he was denied an opportunity to have legal representation at the hearing especially as he indicated that his representative was at court.  This, he alleges to have infringed his constitutional right to legal representation.

I am not convinced by appellant’s arguments.  He should have realised that there was a serious issue when he was made to write a report.  If that was not sufficient, the invitation to a hearing dated 26th September makes it clear what charges appellant was facing, that a hearing would be held on the 3rd October 2013 and his entitlement to representation.

Regarding the suspension, I believe this procedural irregularity does not vitiate the proceedings as no prejudice was suffered (See Tichawana Nyahuma v Barclays Bank SC 67-2005).

In respect to the need for representation I find that appellant was not denied any representation.  He was in fact reminded of this in the notice of hearing and at the hearing he agreed to proceed without any representation.  In this regard his case is distinguishable from several others where a refusal of a party to get legal representation was seen as failure to fulfill the requirements of the audi alteram partem rule.  (See Chirenga v Delta Distribution HH72/03).  It was not respondent’s duty to secure representation for appellant.

Appellant takes issue with the minutes of the disciplinary hearing.  He claims they were not circulated for approval nor were they signed as a correct record, by him.

Respondent argues that even though appellant did not endorse the minutes as correct, he is not contesting the contents.

I agree with respondent.  The record does not show any particulars of contestation of the accuracy of the minutes at any stage.  None were cited for me.  Consequently I find too that as there is no alleged prejudice suffered, this allegation is not sufficient to vitiate the proceedings (per Tichawana Nyahuma v Barclays Bank supra).

I therefore find that there is no merit in grounds of appeal 1 to 3 and dismiss them.

The propriety of the conviction

Appellant questions his conviction on the basis that there was no (sufficient) evidence led to prove the commission of the offence and that some of the conclusions reached were inappropriate in the circumstances.

Firstly, he avers that the arbitral tribunal concluded that he had failed to prove that he could not withdraw the said money from his eco cash account as his phone was malfunctioning.  His point is that no document could be produced to prove this.

I believe that appellant has misread the arbitral award.  The arbitrator found that appellant “was asked to submit documents which proved he could not withdraw money from his eco-cash account but he failed to do so”.

Respondent submitted that Econet had indicated that it was possible to get a print out of the eco-cash account.  I believe such a document would show when the $278 was transferred into appellant’s account and when it was paid out.  In my opinion the issue was as simple as that.  Appellant did not get such a print-out.  He sought to explain that he discovered during the proceedings that the line he was using was not his, but belonged to his nephew whom he could not talk to because of a fight between them.  Given that appellant claimed too, to have been operating the eco-cash account on that line from June 2012 to July 2013 without any problems, the arbitrator cannot be faulted in her conclusion.

On the second level, appellant claims not to have been properly charged as he claims not to have had the intention of permanently depriving the company of the money in question which he claims to have paid voluntarily.

The evidence shows that the money was only paid after the Regional Manager had discovered the non payment on the account and verified same with the customer.  What could have assisted appellant is proof of when payment into his account was done and when cash was paid out to him.  He also failed to explain why he did not put his line into a colleague’s working phone to facilitate withdrawal of the money as he used the same phone for personal calls.  Respondent points too to appellant’s failure to advise his superior or colleagues about the pending payment.  In addition he refused to provide a certified nil call history from his service provider even after being availed transport and time.

The standard of proof in a matter of this nature is on a balance of probabilities.  (See ZESA v Dera 1998 (1) ZLR 500 (SC).  In balancing the probabilities, the Court selects a conclusion which seems to be the more plausible/credible one from among several conceivable ones.  In the circumstances of this case, I cannot fault the arbitrator for concluding that appellant had indeed committed the offence he was charged of.

There is no basis on which appellant shifts the burden of establishing the particular day on which the money was paid into his account.  That was appellant’s responsibility in order to show he had not prejudiced respondent of the use of the money by putting it to his own use.

I find, therefore, that appellant was properly found guilty and consequently dismiss the appeal with costs.