Securatech (Pvt) Ltd v Nyasha Senti

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/527/14
HELD AT HARARE 21ST JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/527/14

HELD AT HARARE 21ST JULY 2014			CASE NO LC/H/222/14

& 15TH AUGUST 2014

In the matter between:-

SECURATECH (PVT) LTD				Appellant

And

NYASHA SENTI					Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr L Godobi (Human Resources Officer)

For Respondent		Mr L Mutasa (Trade Unionist)

CHIDZIVA, J:

This is an appeal against the decision of National Employment Council Appeals Committee that was issued on the 20 February 2014.  The National Employment Committee ruled in the respondent’s favour and ordered as follows;

“1.	That the charge of Part C (23) is hereby set aside and substituted with Part A (4) which is for “Negligent performance of duties with minor consequences” and which warrants a verbal warning on first breach

2.	Reinstatement is to be effected from the date of the National Employment Council’s determination and it is without back pay.

3.	Alternatively, the employer can pay damages in lieu of reinstatement.

This is a provision of section 89 (2) (c)	 (iii) of the Labour Act which mandates that damages may be awarded to the employee concerned as an alternative to his reinstatement of employment.

The brief history of the matter is that the respondent  was

employed by appellant as a controller.  On the 23 November whilst on duty she took a break at 0158 hours.  An alarm activated at 0159 hours at number 24 Hurstview Ridgeview. Respondent then dispatched a reaction crew which reached the premises at 0232 hours.  It is alleged that respondent entered false information in the activation history page that the whole process took 2 minutes 27 seconds when the reaction team actually took 4 minutes.

The respondent was then  charged with committing a serious offence in terms of Part C (23) which reads “negligent performance of duties with a serious consequence”. She was convicted and dismissed from employment.  The respondent then appealed to the National Employment Council Appeals Committee which ruled in her favour and ordered reinstatement.  It is this decision that the appellant is appealing against.

The grounds of appeal are that

The National Employment Council Appeals Committed erred in that they made their reinstatement decision basing on the assumption that there was no prejudice suffered by appellant over the acts of misconduct by the respondent whom they found to be guilty of offence committed

The National Employment Council Appeals Committee erred by not considering that the appellant suffered prejudice in that the appellant was shouted at by the client.

The endorsement of false information on company records is enough prejudice that warrants dismissal.

The appellant therefore prayed that the decision of the National Employment Council Appeals Committee be set aside.

The respondent in response told the court that

The appellant failed to prove that respondent had committed an offence as defined by Part C: Serious Offence (23) of the Code of Conduct.  The National Employment Council Appeals Committee rightfully determined that the negligence which appellant alleged that respondent committed does not warrant dismissal

Dismissal was too harsh a penalty.

The Appeals Committee acted professionally by determining that in the alleged negligence of the respondent. Appellant suffered no prejudice.  Furthermore appellant failed to quantify the damage caused by the alleged negligence.

The respondent on these grounds prayed that the appeal be

dismissed for lack of merit and that the respondent be reinstated to her former position or be paid damages in lieu of reinstatement.

It is common cause that

Respondent recorded information to the effect that the reaction team took 1 minute 7 seconds from dispatch to arrival at the scene and yet the reaction team took 4 minutes.

Respondent logged the feedback before the arrival of the reaction team at the scene.

What is to be decided is whether the respondent was unlawfully

dismissed or not.

To start with the respondent commenced duty at 1800 hours on the day in question.   She left the control room for a break at 0158 hours.  This is almost (8) eight hours after she had started her duties.  Section 5 (10) of S.I. 247 of 2006 provides that

“No employer	should require any employee other than a guard to work for a continuous period of more than five hours without a break.”

In this case respondent had worked for more than (5) five hours without

a break.  She was therefore entitled to a break. In the circumstances therefore this court is persuaded to agree with the National Employment Council Appeals Committee’s finding that reference to the tea break is relevant under the circumstances.

Given that she was entitled to the break it cannot be taken that she was negligent by going for a tea break.  What can only be the issue is why she recorded the wrong outcome.  She recorded the outcome before the reaction team had reached the scene.  In the absence of any evidence to show that the false information was recorded with a fraudulent intent it can only be concluded that the respondent was negligent in the performance of her duties.

The appellant has averred that respondent’s actions prejudiced the company.  However the Appeals Committee rightfully stated that appellant did not prove how it was prejudiced.  Furthermore the appellant did not produce the definition of negligence that has a serious consequence.

In the light of the foregoing therefore this court finds that the appeal lacks merit.

Accordingly it is hereby ordered that

The appeal be and is hereby dismissed with costs.