Philemon Gware v Manica Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/265/16
HELD AT HARARE 17 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/265/16

HELD AT HARARE 17 FEBRUARY 2016			CASE NO LC/H/632/15

& 13 MAY 2016

In the matter between:

PHILEMON GWARE				Appellant

And

MANICA ZIMBABWE				Respondent

Before The Honourable L Kudya, Judge

For Appellant			L Matapura (Legal Practitioner)

with E Dondo (Legal Practitioner)

For Respondent		Miss N Moyo (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the arbitrator where he ruled that the appellant employee had been rightly found guilty of theft and dismissed from employment.  Facts of the matter are that appellant who was in the respondent’s employ was sent to bank respondent’s cash.  He was however handed back R10000 of the money he had taken to the bank.  The teller however recorded that the full amount of R32000 had been banked yet R10000 had gotten back to appellant.

Appellant admitted receiving the money back but argued that he intended to take the matter up later with his employers.  When the bank realised its mistake it tracked the money down on same date and recovered it from the appellant who by then had placed it in his office drawer.  Respondent conducted a hearing into the matter found him guilty and dismissed him from employment.  Aggrieved by the dismissal appellant took the matter up with a labour officer and ended up at arbitration where the arbitrator endorsed his guilt and the dismissal penalty.

This drove him to appeal to the labour court in the appeal which is the subject matter of this judgment.

His appeal grounds are:

Arbitrator erred at law to hold that the money belonged to respondent yet it was bank’s money per banking laws  so arbitrator failed to appreciate banking as regards money banked on behalf of another.

Arbitrator grossly erred at law to hold that appellant had been correctly charged for theft of “company property” yet that property did not legally belong to it then.

Arbitrator erred in fact to hold that appellant did not bank R10000 yet the money was banked that day as instructed and bank deposits confirmed that fact.

Arbitrator erred to conclude that appellant committed theft against respondent yet facts of the matter demonstrated that no such theft was committed.

Arbitrator’s findings and determination are grossly unreasonable and irrational as to defy logic and to constitute appeal ground.

In the result appellant prayed that the arbitral award be set aside and that appellant

be reinstated to his former position at work without loss of salary and benefits.

In response to the appeal the respondent maintained that:

Arbitrator did not ……….. Money was not deposited with the bank so remained respondent’s money.

Arbitrator did not err appellant stole respondent’s  money.

Arbitrator did not err.  The money was not banked.  It was not deposited with the bank although the deposit slip was stamped.

Arbitrator did not err of theft was committed.

Arbitrator decision was rational and he gave reasons for it.

In the result the respondent prayed that the appeal be dismissed with costs.

Before dealing with the appeal grounds it is pertinent to note the following common

cause facts.

Theft as defined by respondent’s Code of Conduct is limited to theft from employer workmate only.

Money was taken to bank and bank slip reflected all money appellant had been sent to bank yet R10000 remained in appellant’s custody.

Money was retrieved from appellant on the same day he had gone to bank it and by retrieval time he had not made any report to his superiors or workmates.

The only critical question falling for determination is whether arbitrator erred as he

did to conclude that appellant had been rightly found guilty and dismissed from work.  It is also worth noting that the banking law authorities citied by appellant are without doubt and no purpose is served by repeating them.  It is also pertinent to note that the decision in this matter is around the way arbitrator interpreted the facts of the matter.  It is a clear case which falls within the 2nd rung of the point of fact law debate.  See Sable Chemicals v Peter Easterbr SC 18-10  as stated earlier it is a given that the definition of theft as per respondent’s Code is quite narrow.  If one uses a narrow approach to its interpretation one would be tempted to conclude that the infraction complained about was not the correct charge.

It is however important to look at the holistic picture of how arbitrator ended up concluding that indeed appellant had erred as alleged.  It is also important to note that the fragmented manner in which the appeal grounds are presented does not add or detract from the fact that just one question is at stake.  This is the question whether the arbitral decision on the face of the cumulative facts of the matter can be styled grossly. unreasonable and irrational as to demonstrate that arbitrator had taken leave of his senses.

In that regard this court will not endeavour to deal with the grounds individually since it is clear that only a simple question is at stake.  It also needs to be uppermost in the court’s mind that it has no duty to substitute its discretion for that of the tribunal below it but to only interfere in cases of gross abuse of discretion on facts.  See Nyahando v Hokonya 1997 (2) ZLR 475 (SC).

As indicated earlier the banking procurements are without doubt.  The question is how do they fit in the facts of the matter at hand.  It is important to note that whilst banking records indicated that whole amount had been deposited it still remained as fact that appellant remained with R10000 of the banked money.  Whether he retained because of the negligence of the teller or how is immaterial.  Fact is that such money did not find its way into the banking system so there is no way it could have been styled to be bank’s money.

In any event appellant concedes that money he went to bank was not his so when it got back to him he was duty bound to return it to who had given it to him.   For him to wait till bank showed up and asked for same cannot be consistent with an innocent mind.  His retention of the money which was not his, whose owner he knew was consistent with arbitral finding that he held onto it with improper motive.  Besides other facts that he had met up with cashier over lunch but chose not to divulge the fact that he had brought back R10000 confirms that he wanted to retain that money for self.  Even his argument that banking anomalies could be regularised after some time is not in sync with the position he held.

He knew from the onset when he left bank that he had come back with respondent money.  If he thought it was bank error he should have asked teller then when he was before her.  It is clear that the money was respondent’s money and appellant helped self to it.  He thus cannot argue that he was ill charged or that arbitrator failed to interpret banking laws.  There is no cogent basis upon which this appellate court can be called in to upset the award.  The award is sound both in law and in fact and it should stand.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

Pundo & Company, appellant’s legal practitioners

Coglan, Welsh & Guest, respondent’s legal practitioners