OK Zimbabwe Limited v Fungai Tsikira

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IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/147/24
ZIMBABWE HELD AT HARARE 25TH
CASE NO. LC/H/29/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 25TH MARCH 2024 AND 3 APRIL 2024

In the matter between

OK ZIMBBWE LIMITED

And

JUDGMENT NO. LC/H/147/24

CASE NO. LC/H/29/24

APPELLANT

FUNGAI TSIKIRA	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE

FOR THE APPELLANT : MRS R. MATSIKA (LEGAL PRACTITIONER) FOR THE RESPONDENT: MR S. MUHAMBI (TRADE UNIONIST)

MAKAMURE J:

This is an appeal against the decision of the Chief Designated Agent of the Negotiating Committee of the National Employment Council for the Commercial Sectors of Zimbabwe upholding a decision of its Local Joint Committee overturning the respondent’s dismissal of the respondent from its employ following disciplinary proceedings. The respondent had preliminary issues to raise. However , at the commencement of the hearing Mr Muhambi who represented the respondent abandoned the preliminary issues so that the merits of the case could be considered. That was commendable as this expedites finality to litigation. The facts of this matter appear not to be in dispute. They are as follows.

The respondent was employed by the appellant as a shop floor supervisor at its Jason Moyo, Bulawayo Branch. On 6th January 2020 a customer wanted buy mealie meal in bulk , that is 100 bags of 10 kilograms each . The customer approached the respondent. The respondent led the customer to the buyer in order for the large purchase to be authorized. The purchase was duly authorized by the buyer one Antonette Nkomo. The customer  was said to have

come from Highlands Football Club (the Club). At the point of payment , that is at the teller, the teller declined to process the sale on the basis that the purchase was beyond what was ordinarily allowed. It was after the assurance by the respondent to the effect that the purchase had been authorized that the teller accepted payment. Equally at the point of dispatch the quantity was questioned and once again the respondent rendered his assistance.

It later turned out that the customer was not from Highlands Football Club. This resulted in charges of misconduct being levelled against the respondent. The respondent was charged under Group (iv} section 5 of the National Employment Council for the Commercial Sectors of Zimbabwe (NECCSZ/NECCSS) for (i) Dishonesty and other related offences and (ii) Breach of employment contract. The dishonesty lay in that he misrepresented to the buyer that he knew that the customer came from Highlands Football Club when this was not true. It was on the basis of the misrepresentation that the purchase was authorized . The breach of contract lay in the fact that he caused a scarce commodity to be sold in bulk contrary to the respondent’s policy. The respondent protested his innocence from the beginning. His main defence was that the buyer was to blame since she is the one who authorized the purchase after he had personally presented the customer to her. It was averred on his behalf that it was up to the buyer to interrogate the customer and ensure that they were truly from the Club and therefore required such a big quantity of mealie meal. The appellant convicted him all the same. He was penalized with dismissal. He appealed successfully to the Local Joint Committee .An appeal by the appellant to the Negotiating Committee was dismissed. The position of both the Local Joint Committee and the Negotiating Committee was that there was no misrepresentation on the part of the respondent. The Negotiating Committee opined that even if the terms of contract between the parties prohibited bulk sales, once permission was granted the prohibition fell off. The respondent was ordered to reinstate the respondent. This led to the present appeal .

The position of the appellant in the grounds of appeal was that the respondent ought to have established his defence; that there was misrepresentation on the part of the respondent; that the respondent was bound by the terms of contract which prohibited bulk sales of scarce commodities; that the order for reinstatement without loss of salary and benefits was erroneous considering that it was the Local Joint Committee which delayed the determination of the appeal before it by a period in excess of two years.

The argument before this Court was that there was misrepresentation on the part of the respondent leading to the purchase. As such the Local Joint Committee ought not to have upset the factual findings of the employer. Various authorities were cited in support of the appellant’s case. These included :Nyahondo v Hokonya and Others 1997 (2) ZLR 457 (S);Pillay v Krishna and Another 1946 AD 946 @951-952;James Kandoma v Shades of Black Cosmetics (Private ) Limited SC115/2004; Chegutu Municipality v Manyora 1996

(1) ZLR 262.

The stance adopted on behalf of the respondent was that there was no misrepresentation on the part of the respondent. Further there was no breach of contract. This was submitted on the basis that the respondent presented the customer physically to the buyer. It was therefore the duty of the buyer to find out whether or not the customer came from the Club as alleged. It was also pointed out on behalf of the respondent that the impression created by the employer through its Branch manager was that the respondent is the one who purchased the said mealie meal when in fact it was a customer. The cases cited in support of the respondent’s case included: Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S);Zimsun v Lawn 1988 (1) ZLR 143.

In casu one issue needs to be resolved. The issue is whether or not there was misrepresentation on the part of the respondent. At page 49/100 of the record the respondent stated as follows ( in part) in response to the allegations:

‘As a floor supervisor I came to know this customer as a regular customer of OK J Moyo.I was from the gents when he asked for assistance. I then referred him to the branch manager’s office. After that I proceeded to my work station when the customer failed to locate the branch manager he came back to me there after I referred him to

the accountants’ office where the buyer and the accountant were….

At page 52/100 of the record the respondent once again in response to the Designated Officer stated that

‘In response to that I had never visited his offices only that I know him as a customer

who works for highlands club. For where his offices are or where he was taking the

mealie meal  I do not know. For I did my part as a customer service for I am

employed to serve customers as one of my key result areas in the organisation.’(My underlining forb emphasis).

From the facts of this case the sale of large quantities of mealie meal needed special authority. The appellant’s members of staff including the respondent, who were involved in the purchase of the mealie meal by the customer in question bear testimony to this. Had there been no such requirement the respondent would not have referred the customer to the buyer. The respondent in his own words said that he knew the customer as coming from the Club and that he was a regular customer. As a result of that he referred him to the buyer. On the strength of the referral the purchase was authorized. This does not mean that the buyer should not have done their own independent investigations regarding the status of the customer. From what appears on record the respondent indeed misrepresented to the buyer.

His testimony shows that he did not know the identity of the customer and yet he presented the customer to the buyer as not only as a regular customer, but as coming from the Club. He made a misrepresentation. This means that he was dishonest. It also means that he was in breach of the terms of his contract of employment. This is what the respondent’s disciplinary authorities found. In Nyahondo v Hokonya 1997(2) ZLR 457(S) the Supreme Court held that an appellate court should not interfere with the findings of fact by a trial court unless the findings complained of are ‘so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’ (See also ZINWA v Joseph Mwoyounotsva SC28/15). That same court (in Nyahondo v Hokonya (above)) held that in civil cases the onus to prove a case is on a balance of probabilities. This is the same standard used in labour matters. On a balance of probabilities therefore the appellant has discharged the requisite onus. I find that there is merit in the grounds of appeal. The appeal succeeds.

It is ordered that:

The appeal be and is hereby granted.

The determination of the Negotiating Committee of the National Employment Council for the Commercial Sectors be and is hereby set aside and substituted with the following:

The determination of the Local joint Committee be and is hereby set aside ; And

The dismissal of the Respondent from Appellant’s employ be and is hereby confirmed.

There is no order as to costs.

WINTERTONS LEGAL PRACTITIONERS, APPELLANT’S LEGAL PRACTITIONERS.