Petronella Mushinye v Letombo Park Spar

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/492/14
HARARE ON 13th MAY, 2014
CASE NO. LC/H/428/2010
And 1st AUGUST, 2014
JUDGMENT NO. LC/H/492/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/492/14

HARARE ON 13th MAY, 2014				     CASE NO. LC/H/428/2010

And 1st AUGUST, 2014

In the matter between

PETRONELLA MUSHINYE				–	Appellant

And

LETOMBO PARK SPAR					–	Respondent

Before   The Honourable Manyangadze, J.

For the Appellant	: P. Mupwanyiwa (Legal Practitioner)

For the Respondent	: H. Maticha (Human Resources Manager)

MANYANGADZE  J.

This is an appeal against a penalty of dismissal imposed on the Appellant by Respondent’s Disciplinary Committee.

The brief background to the matter is that the Appellant was employed by Respondent, and was at the material time working in the Delicatessen Department. In November 2009, she was convicted of misconduct in terms of the National Employment Council for the Commercial Sectors Employment Code of Conduct (NEC Code). The Disciplinary Committee found her guilty of the Group IV Offence of “DISHONESTY AND RELATED OFFENCES”- which is the unlawful taking of property with the intention of permanently depriving the company of such property. The Appellant was found by the Duty Manager eating potatoes in a kitchen, outside the normal lunch time, behind the fridge. She had not paid for the potatoes, which were valued at $0.80c. The Appellant’s appeals to the Mashonaland Local Joint Committee and the Negotiation Committee were dismissed in their entirety.

In October 2012, the Labour Court upheld her conviction, but remitted the matter to the Respondent’s Disciplinary Committee for the latter to receive submissions in mitigation. The Court had observed that the record of disciplinary proceedings showed that the Appellant was not given an opportunity to make submissions in mitigation.

After receiving the Appellant’s mitigation, the Disciplinary Committee still imposed the penalty of dismissal, prompting the present appeal.

The sole issue for determination is whether or not the Disciplinary Committee erred in imposing a penalty of dismissal, following Appellant’s conviction on a dishonesty related misconduct charge.

The Appellant mainly relied on Section 12(B)(4) of the Labour Act. This Section provides that mitigating factors be taken into account, when considering whether or not to dismiss an employee. The mitigating factors to be taken into account include;

“the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee”

The Appellant also referred the Court to the cases of NEI Zimbabwe (Pvt) Ltd. vs. Makuzva LC/H/24/04, and Coh Coh Enterprises (Pvt) Ltd. vs. Mativenga and Another 2001 (1) ZLR 157.

The import of those cases is that the penalty of dismissal is not mandatory. The employer should not simply dismiss because the misconduct in question is dismissible. There is need for flexibility and the adoption of a corrective, educational and rehabilitative approach.

I do not question the soundness of the sentencing principles alluded to by the Appellant. In appropriate cases, they can be applied and a sentence other than dismissal is properly imposed.

However, this is one of those cases where the element of trust, vital in an employer-employee relationship, was disturbed. In such a situation, the value of the goods stolen is not the paramount consideration. It is the act of dishonesty that shakes the trust upon which the employment relationship is built.

The Respondent took a very dim view of the Appellant’s actions. In submissions made on behalf of the Respondent it was pointed out that these are the sort of cases that arise in commercial undertakings and they ought to be treated seriously. It was highlighted that the problem of shrinkage in the retail sector has become common place. Consequently, “the issue is not about the monetary value of the item stolen, but about the operational requirements of the employer”.

The Respondent, after receiving Appellant’s mitigation factors, considered that;

“they were not enough to tip the scale away from dismissal as dishonesty destroys the trust of the employer.”

The Respondent emphasized the nature of retail operations, the sector which it

operates in:

“One needs to understand the nature of operational parameters that the retail sector is operating under. The mark up margin is so low to the extent that any marginal variance aggregates into a huge loss at the end of the month.” (page 13 of the record).

In Innscor Africa (Pvt) Ltd vs. Letron Chimoto SC 6/12, the Respondent, who was employed as a Pizza Maker, produced a pizza without having received the necessary docket authorizing production of the pizza. The pizza was valued at only $4.00. It is significant to note that the Respondent had not gone on to steal or consume the pizza. The misconduct was in the unauthorized production of the pizza, contrary to laid down procedure. The Supreme Court stated, at page 2 of the cyclostyled judgment:

“The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers. The finding that the pizza was only $4.00 was of no consequence. The offence committed involved a betrayal of trust and confidence reposed in the Respondent by the Appellant thereby going to the root of the relationship between the employer and employee.”

The remarks by the Supreme Court in that case apply with equal force in casu.

In the circumstances, the Respondent’s Disciplinary Committee did not misdirect itself in imposing the penalty of dismissal. There is no basis for interfering with it.

It is accordingly ordered that;

The appeal be and is hereby dismissed.

The decision of the Respondent’s Disciplinary Committee be and is hereby upheld.

Each party bears its own costs.

Mufadza and Associates – Appellant’s legal practitioners