Nevias Chidembo v ZFC Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/79/13
HELD AT HARARE 8TH MARCH 2013
CASE NO
JUDGMENT NO LC/H/79/13
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/79/13

HELD AT HARARE 8TH MARCH 2013			CASE NO LC/H/581/12

NEVIAS CHIDEMBO					Appellant

ZFC LIMITED							Respondent

Before The Honourable G Musariri, President

For Appellant		Mr N Chidembo, Applicant

For Respondent		Mr T Pasirayi, Attorney

MUSARIRI, G:

On 19th July 2012 the NEC for the Chemicals and Fertilizers Manufacturing Industry made a determination.  In terms of thereof, the NEC upheld the dismissal of Appellant by Respondent from its employ.  Appellant then appealed to this Court.  Respondent opposed the appeal.

The grounds of appeal read as follows;

“1.	The NEC misdirected itself regarding the legal effect of failing to hold the hearing within the mandatory period.

2.	The NEC misdirected itself by concluding that theft or fraud was committed.

3.	The NEC misdirected itself on the right to mitigate which Appellant was denied.”

The 1st and 3rd grounds of appeal are not what they call themselves.  They are complaints about the procedure used by Respondent in conducting the disciplinary proceedings.  They are grounds for review of the proceedings.  They cannot be properly raised by way of an appeal as Appellant sought to do.  This Court now has powers of review and accordingly those seeking review should file proper applications for review.

The 2nd ground goes to the merits of the matter.  Appellant relied on a written submissions made by Respondent’s attorneys to the NEC.  Therein they stated that Appellant “was not charged with theft or fraud.”  The charges against Appellant were set out in the Notification of Allegation/Investigation which was served on 11th June 2012.  A copy is filed of record.  It laid 2 charges being,

“Any act, conduct inconsistent with the fulfilment of the express or implied conditions of contract.

On the 14th May 2012, you withheld Aspindale Club money amounting to $1 164.50 which you failed to remit as part of your bar sales proceeds for that week as required.  This act or conduct was inconsistent with the fulfilment of the express or implied conditions of your contract.

Fraud

You further went on falsify stock figures on the cash and stock reconciliation sheets to conceal the amount you had taken without permission, which was a fraudulent act inconsistent with your line of work.”

Thus although Appellant was not charged specifically with theft, he was charged with fraud.  In a note dated 15th May 2012, a day after the alleged incident, Appellant stated that,

“Re:  Shortfall

In response to the above reference I made shortfall of $933.50 of which I am prepared to pay back tomorrow morning.

This shortfall was discovered by Mr Kamudende after we did stock count.  I am sorry of what happened and I hope corrective measure will be done.

I am appealing for your lenience for the last time and if this happens again I will have to resign.  I hope to hearing from your considerat(ion.)

N Chidembo”

The note admits the essentials of the offence charged.  Appellant admitted failure to account to his employer for the cash sales he was responsible for.   As the Barman,  it was his main duty to account for the sales.  His failure to account was inconsistent with the terms of his employment contract.  The offence was aggravated by his dishonesty in fiddling with the stock sheets to cover for the shortfall.  Apparently he had 2 warnings for similar conduct in the past.  Clearly Respondent was within its rights to dismiss Appellant in these circumstances.  Thus appeal to this Court  must fail for lack of merit.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT