Persuade Chigame v OK Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/07/14
HELD AT HARARE 13TH NOVEMBER 2013
CASE   NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/07/14

HELD AT HARARE 13TH NOVEMBER 2013	  CASE NO LC/H/985/12

AND 31ST JANUARY 2014

In the matter between:-

PERSUADE CHIGAME				Appellant

And

OK ZIMBABWE					Respondent

Before The Honourable Hove, J

For Appellant		Mr T Mawopa (Organising Secretary - CWUZ)

For Respondent		Ms R.T.L. Matsika (Legal Practitioner)

HOVE, J:

The Appellant in this case was employed by the Respondent as a Buying Assistant.

He would occasionally be asked to relieve at the tills as a till operator, a function that he had previously performed.

On the relevant day i.e. 20th January 2012, the Appellant was operating a till.  He incurred a shortfall of $40.26.  He did not deny incurring this shortfall but he could not explain how the shortfall had occurred.

He was charged with the offence of unsatisfactory work performance: lack of skill which the employee held himself out to possess.  He was found guilty and dismissed from employment.  He appealed  against such dismissal.

When the matter came up for hearing before the Labour Court it was argued on behalf of the Appellant that he could not be dismissed for lack of skill as a till operator when he was not employed as a till operator but a Buying Assistant.  He was only asked to relieve at the till in crisis times but his contract with the employer was that of a Buying Assistant.

He submitted that he had been trained as a Buying Assistant and produced documentary proof to that effect.  He also produced his contract of employment as a Buying Clerk.    He admitted that he had previously worked as a till operator but that was between 2004 and 2006 when he initially joined the company and by then he was using manual tills.  He argues that he was not trained to use the new computerised till.  He argues that he never represented that he had the skills of operating a computerised till since he was employed as a Buying Clerk.

He also submitted that he merely admitted that he had had a shortfall but did not plead guilty to unsatisfactory work performance.

The employer on the other hand argued that the Appellant had agreed to perform the duties of a till operator. There is no merit (it was argued) in the ground of appeal that he was not a seasoned till operator as he was a trained till operator.

The Court was referred to the book workplace Law 8th Edition by John Grogan at page 49 where the learned author had this to say.

“Employees are deemed by law to impliedly guarantee that they are capable of performing the tasks they agree to perform and that they will carry them out with reasonable efficiency.”

In casu, it was argued, the Appellant incurred a shortfall he could not explain and that is evidence of the fact that he failed to perform his duties with reasonable efficiency.

The employer further submitted that the Appellant had been trained as

a till operator in March 2002.  Again, the Appellant had signed a document that he would be dismissed if he incurred a shortfall above $30.01.

Again the Court was referred to the case of Blessing Mashizha v First Banking Corporation HH/186/99at page 8 where the Court stated as follows;

“The position is now settled that a person who signs a contractual document and if its turns out not to be to his liking, he has no one to blame but himself – R.H. Christie, The Law of contract inSouth Africa 3rd edition page 194-5.

This is often referred to as the caveat subscripter rule.  In George v Fairmead (Pty) Ltd 1958 (2) SA 465 A at 472 A, Fagon CJ. remarked when a man is asked to put his signature to a documents he cannot fail to realize that he is called upon to signify, by doing so, his assent to what ever words appear above his signature.”

The employer also argued that the terms of contract had been varied when the Appellant agreed to work as a till operator.

The Court has again been referred to the fact that the Appellant had admitted incurring the shortfall.  He was now in terms of law, properly found guilty.

The Court is of the view that the issue that has to be decided in this matter is whether or not the employer acted lawfully and reasonably in dismissing the Appellant for unsatisfactory work performance for incurring a shortfall of $41.26.

Generally speaking, it is the position of law that a worker should not be terminated for unsatisfactory work performance unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactory.  An employer had the prerogative to set the standards that employees are expected to meet.  The Court will not interfere with such standards unless it is “grossly unreasonable” a standard.

In casu, the employer set the standard of “no shortfalls above the upper limit of $30.01” and asked the till operators to sign an agreement that any shortfall above $30.01 would result in a dismissal, as stated, the Court cannot intervene with this standard.  No allegations have been made that the standard set was grossly unreasonable.  The employer therefore did set an objective standard of performance against which the performance of the Appellant could be measured.

There is however a second requirement to be met by the employer.  IT Must provide adequate evaluation, instruction, training, guidance and counselling to ensure that the employee meets the set standards before dismissal can be justified.

The employer in this case submitted that the Appellant was trained in 2002 as a till operator.  He was therefore expected to meet the set standard.  The employee alleges that when he was trained as a till operator, it was before the days of the computerised tills.  This was several years back when he was initially engaged and operated as a till operator.  Now, the manual tills for which he was trained had been replaced by the computerised tills and he had received no training to operate those.  He was now engaged as a Buying Clerk and would only be called to assist at the tills in crisis times.  His allegation that he had not been trained cannot be refuted by the employer’s averments that he was trained in 2002.  (When they were not using computerised tills.)

The standard set in the case of Quest Motor Corporation (Pvt) Ltd v Nyamukura 2000 (2) ZLR 84 (H) have not been satisfied.

The employer had not provided sufficient training and supervision under the circumstances, dismissal for incompetence, poor performance or lack of skill cannot be fair or justified.

The employer has submitted that the Appellant’s poor performance in this case went to the very root of the contract of employment in which case the employer is entitled to dismiss him.  Reliance for this proposition was placed on the case of Innscor Africa v Letron Chimoto SC 6/12 and Murawo v GMB SC 27/09.

It is true that where an act of misconduct goes to the root of the employment contract then the employer would be entitled to dismiss an employee.  The circumstances of this case can however be distinguished from the two cited cases.  The employee in this case is alleged to have failed to perform up to an expected standard.  He is not alleged to have acted dishonestly.  He has shown that he was never trained or supervised to perform up to the set standard.  The law provides that under such circumstances, dismissal would be unfair and unjustified.

The dismissal can therefore not be allowed to stand.

In the circumstances, I make the following order;

The employer’s decision to dismiss is set aside.

The Appellant is to be reinstated into his former position with effect from the date of this judgment.

Should reinstatement no longer be and option, the Appellant is to be paid damages in lieu of reinstatement and for the loss of his job.

Should parties fail to agree on the damages payable, either party can approach this Court for quantification.

There is not order as to costs.

Commercial Workers Union of Zimbabwe, Appellant’s Representative

Wintertons, Respondent’s Legal Practitioners