O.K. Zimbabwe v Sabina Ndoreka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/508/14
HARARE ON 19th JUNE, 2014
CASE NO. LC/H/247/13
AND 5 FEBRUARY, 2014
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/508/14

HARARE ON 19th JUNE, 2014			          		  CASE NO. LC/H/247/13

AND 5Th FEBRUARY, 2014

AND 1st  AUGUST, 2014

In the matter between

O.K. ZIMBABWE				-	APPELANT

And

SABINA NDOREKA			-	RESPONDENT

Before The Honourable L. Hove  J.

For Appellant     :	Mrs RTL Matsika (Legal Practitioner)

with Mr C. Tambara (O. K. Kwekwe - Branch Accountant)

and Mr A. Kanyai (Human Resources Officer)

For Respondent :	Ms C.N. Nyanzou (Legal Practitioner)

with (Ms S. Ndoreka)

HOVE J,

The Appellant employed the Respondent as a Till Controller at its Kwekwe Branch.

She was charged with an act of misconduct it being alleged that she had unsatisfactorily performed her work and lacked the necessary skills for a person employed in her capacity. She was found guilty and dismissed. She successfully challenged her dismissal before both the Local Joint Committee (LJC) and the Negotiating Committee (NC). This appeal is by the employer (Appellant) against the decision of the NC. which reversed its decision to dismiss.

In arriving at the decision to find the employee guilty, the employer took into account that the employee together with others of its employees had failed to acquit themselves well in their duties and responsibilities with the result that they contributed to a huge shrinkage of 6.18% against a permissible shrinkage of 0.5%.

The employee in these proceedings was alleged to have consistently allowed goods to leave the shop without a till slip being produced. She was alleged to have permitted goods to be taken out of the shop on the basis of a manual cash sales or receipts which were not official receipts. Some of these unofficial receipts were issued by herself and others by her relative also employed at the same branch as a till operator.

The employer found that the employee had failed to ensure that;

All products leaving the shop are scanned though a bar code reader or scanner,

Each product is scanned separately

All items are scanned and nothing was left in the trolley

Customers are provided with till slips, and

There is correct payment for goods at the check-out points

The employee was called to attend the disciplinary proceedings and her position and attitude towards the notice of hearing is captured in her Notice of Appeal on pages 18 and 19 of the record says;

“I was surprised to get a letter inviting me to attend a hearing before the employer instead of appearing before the D.O. to answer charges labeled (sic) against me. I was now to attend a hearing before the employer as if the initial hearing was properly done according to the NEC Code of Conduct. The procedure was not done ----------. I highlighted to the employer, Mr Rugonye, that the minutes from the D.O. were not a correct record of the alleged hearing --------------. I have therefore felt it was not proper for me to attend the hearing.”

She took a decision not to attend the hearing and did not attend. She was ill-advised. She ought to have attended the hearing and challenged all the issues or argued and insisted on what were the correct minutes. But she chose to ignore the proceedings.

It has been submitted by the employer’s representative that by failing to attend, she took a calculated risk that the hearing would proceed in her absence. She further waived her right to cross-examine witnesses and to demand the production of documentary evidence, reliance for these submissions was placed on the case of;

Forestry Commission vs. Moyo 1997 (1) ZLR 254 (S).

Evidence was led during the disciplinary proceedings which evidence was accepted as uncontroverted since the employee had decided to deny herself the opportunity to be present and defend her interests. It’s a risk she took and she will have to live with the consequences.

If litigants are allowed to ignore proceedings then be allowed to restart the whole process at appeal stage, the administration of justice would be seriously hampered. Appeal proceedings are to be dealt with on the basis of the record of proceedings in the initial proceedings. She has no one to blame but herself.

The Negotiating Committee found in its decision, which is subject of this appeal that;

“Since the Respondent was a tills controller she was then held responsible for the stock shrinkage on the basis that she was supposed to ensure that all items are scanned and correct payment made for all goods at the check-out points.

The Respondent was then accused of allowing goods to pass through the check-out point without being rung on the till without correct till slips and that some goods were left in trolleys and were not charged.

No evidence was produced to prove the allegations as the Appellant relied on hearsay evidence.

No evidence was produced to directly the Respondent to the USD 100 958.00 stock shrinkage.

No evidence was produced to show that the Respondent was the only person responsible for all stock in the shop.”

On the basis of the above observations, the Negotiating Committee found that the employer had failed to prove its allegations against the employee.

With the greatest of respect the Negotiating Committee misdirected itself. It was not the employer’s argument that the employee was responsible, as a tills controller, for the entire stock shrinkage. It was never the employer’s case that the entire shrinkage ought to be directly linked to the employee.

The employer’s position was that the employee was a tills controller and her duties include her supervision of till operations to ensure that goods were being paid for before leaving the shop but she failed in this regard as evidence was adduced to show that goods were actually leaving the shop without being paid for. This contributed to the huge shrinkage.

The employer was alleging that the employee was not performing her duties according to the expected standard. That she was unsatisfactorily conducting her duties. This contributed to the shrinkage but it was never the employer’s case that the employee was the only person responsible for all stock in the shop.

The Negotiating Committee therefore misdirected itself by totally failing to determine and decide on the real issue before it that the charges being faced by the Appellant were that she had unsatisfactorily performed her duties. The Negotiating Committee had to look at the issues being raised, i.e. whether or not the cash sales receipt books were kept by the employee, whether or not the case sales books had no duplicates and had pages missing and some blank. These were the relevant issues in view of the allegations that goods were leaving the shop without being properly purchased.

The Negotiating Committee also had to look at the evidence adduced in the minutes of the disciplinary hearing and assess whether or not the employer had been justified in its decision to find the employee guilty and to dismiss her.

Instead of this, the Negotiating Committee chose to focus on the shrinkage issue. The evidence led by the employer, that goods were being left in trolleys, that goods were leaving the shop without correct till slips, was not hearsay but direct evidence from of the till operators. These till operators were supposed to be monitored in their activities by the employee who failed in her mandate.

Further, and in any event hearsay evidence can be relied on in the Labour Court which is not bound by strick rules of evidence.

See in this regard the case of Chataira vs. ZESA SC 83/01.

It was not necessary for the employer to led evidence that the employee was the only person responsible for all stock as this was never in issue nor was it necessary to link the employee directly to the USD100 958.00 shrinkage.

The employee’s conduct as shown by evidence led during the disciplinary proceedings show that her conduct was unacceptable. A till Controller is employed to oversee that all goods are paid for before leaving the shop. By properly supervising the till operators, goods should not have just left the shop as they did according to the evidence. There can be no doubt that she performed her duties in an unsatisfactory manner.

In the book Workplace Law 8th Edition at page 54, John Grogan stated that;

“Employees are deemed by the law to impliedly guarantee that they are capable of performing the tasks that they agree to perform and that they will carry them out with reasonable efficiency. A failure by an employee to so conduct him or herself thus constitutes incompetence. This is so even when the employee can perform the duties but chooses not to perform the duties well.”

The facts of this case show that the employee failed to perform to the expected standard. The record shows that she had been warned previously. The employer was within its rights when it dismissed for unsatisfactory performance.

The heads of arguments filed on behalf of the employee state that she never received a notice to attend the proceedings  before the Designated Officer (D.O.). The employee cannot raise this now. What has been brought on appeal is the Negotiating Committee’s decision. She decided to deny herself an opportunity to challenge the Designated Officer’s proceedings when she refused to attend the proceedings before the employer.

While the rules of natural justice are to be taken advantage of by all litigants they can only help those who avail themselves to enforce their rights. The heads also make the same error of assuming that the employee is being charged with causing the shrinkage of US$100 958. The employer never made that allegation.

The fact that the Appellant was ill on certain specific dates cannot explain why the cash books under her custody were not being properly kept, why pages were torn and why some of the pages were blank. No explanation is tendered for those days when in her presence goods still left the shop without being paid for.

I am satisfied that the employer led sufficient evidence to prove that the employee failed to satisfactorily perform her duties and that her conduct went to the root of the contract of employment.  The employer was thus justified in dismissing her.

In the circumstances therefore I uphold the appeal.

The decision appealed against is set aside.

Wintertons – Appellant’s legal practitioners

Dzoro and Partners – Respondent’s legal practitioners