Nhamo Mabaso v Agrifoods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/317/13
HELD AT HARARE 20TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/317/13
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/317/13

HELD AT HARARE 20TH JUNE 2013		     CASE NO LC/H/998/12

In the matter between:-

NHAMO MABASO						Appellant

And

AGRIFOODS							Respondent

Before The Honourable B.S. Chidziva, President

For Appellant		Mr J Denhere (Assistant General Secretary)

For Respondent		Ms N Timba (Legal Practitioner)

CHIDZIVA, B.S:

The Appellant was employed by the Respondent at the Chipinge Depot.  When a spot check was conducted on the 26th of July 2012 some cash shortages were discovered.  He was then charged under clause 2:4.4.1 of the Code of Conduct.  It was alleged that he falsified documents with fraudulent intent, it was alleged that he was using cash generated from the sales of the following day to cover shortages of the provisions day.  Appellant was also charged under clause 2:4.6.1 of the Code i.e. “wilful loss or theft”

It was alleged that Appellant was not physically counting stock at the beginning and end of the day as he was required.  Appellant was also reporting false figures to the Head Office to conceal the stock variance.  It is also alleged that he let some stock feed to expire.

Appellant was found guilty by the disciplinary committee and the contract of employment was terminated.  The Appellant appealed internally but the decision of the hearing officer was upheld.  The Appellant has now appealed to this Court against the decision of the Respondent to terminate his contract of employment.  His grounds of appeal were as follows:

“i)	Whether T Chinoera vilated the Code of Conduct procedure by acting as investigating officer as well as the complainant.

ii)	Whether this case was dealt with out of time proceedings.

iii)	Proceedings  were held out of time.”

For these reasons the Appellant therefore prayed for the dismissal to be set aside.  In response the Respondent has told the court that

There are no grounds of appeal.  The grounds of appeal are long,  winding and argumentative

The allegation that the disciplinary hearing was not procedurally conducted is an issue for Review and not Appeal..

The Respondent therefore prayed that the appeal should be dismissed with costs.

Section 92 E of the Labour Relations Act [Cap 28:01] states that

“An appeal in terms of this Act may address the merits of the determination or decision, appealed against”

The grounds of appeal which the court has found difficult to understand do not state the exact terms of appeal.  They are long and winding and do not address the merits of the decision that was made by the disciplinary committee.

Some of the issues which the Appellant has raised are review issues.  Appellant has stated that the disciplinary proceedings were not procedurally conducted.

In view of the foregoing  this court found that the appeal is procedurally flawed and lacks merit.  The appeal is therefore dismissed with costs.

Zimbabwe Food Beverages and Allied Workers Union

Kantor & Immerman, Respondent’s Legal Practitioners