Shepherd Chikondowa v T.M. Supermarket-Mutare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/05/2014
HARARE, 04 & 28 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/05/2014

HARARE, 04 & 28 FEBRUARY 2014	    		     CASE NO. LC/MC/46/13

In the matter between:-

SHEPHERD CHIKONDOWA						Appellant

And

T.M. SUPERMARKET-MUTARE						Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. M. Huruwe (Trade Unionist)

For Respondent		-	Mr. P. Makombe (Legal Practitioner)

MUCHAWA J:

This is an appeal against a decision of the Negotiating Committee of the Commercial Sectors of Zimbabwe handed down on the 4th of June 2013.

The brief background to the matter is that appellant was employed by respondent as a till operator when he was charged of “knowingly aiding or assisting the unlawful taking of property with the intention of permanently depriving the respondent of the use of such property” in contravention of Group 1V paragraph 3 of the National Employment Council for Commercial Sectors Code of Conduct.  The facts giving rise to the charge were that on the 5th January 2012, appellant attended to charging a customer and in the process did not charge for 2 x 750 ml Gold Blend Whisky, 1 x 1 kg Cremora and 1 x 1kg strawberry yoghurt and 3 carrier bags.  The total prejudice to respondent was said to be $22.58.  It was further alleged that the said customer gave appellant US$20.00 and he was supposed to give him $6.66 as change. He was said to have only given out $5.00 in airtime as change and retained the rest.  The customer is said to have been caught with the unpaid for goods on his way out.

Appellant was initially charged of unsatisfactory work performance being lack of skill which the employee expressly or by implication holds himself to possess and was suspended.  Respondent realized they had used the wrong charge.  Appellant was then reinstated and another designated agent suspended the appellant on the same allegation and the correct charge specified above.  A hearing was held on the 24th January 2012 and appellant was dismissed from work.  He was however not given an opportunity to appear before the employer in terms of Section 6.1 of NECCS Employment Code of Conduct.  Upon appeal to the Negotiating Committee it was directed that the appellant be reinstated without loss of salary and benefits in order to afford the employee an opportunity to appear before the employer.  It was in pursuance of that decision that appellant was then given an opportunity to appear before the employer.  The employer found appellant guilty and ordered dismissal.  Such decision was upheld by the Local Joint Committee and the Negotiating Committee leading to this present appeal.

The grounds of appeal are stated as follows;

The negotiating committee erred in its findings that the appellant did not charge other items without a substantive evidence (sic).  The appellant only charged items presented at his till point by the customer.

The negotiating committee misdirect (sic) itself to decide that the appellant had connived with the customer to take goods from the company without charging them without any proof.

The decision of the negotiating committee was only reached on information on record which was not confirmed as true and correct records (sic) by the parties present.

The minutes of the hearing proceedings were grossly edited to suit what the respondent want (sic) and the other part (sic) did not sign to confirm the true record of proceedings.

The negotiating committee erred in its findings that the appellant gave the customer 3 carrier bags which were not paid for whereas the customer had his own carrier bags.

The decision of the negotiating committee in the first appeal did not order for the respondent to have fresh hearing (sic).

The negotiating committee erred in its findings to dismiss appellant’s appeal on assumptions.

I deal with the grounds hereunder

Grounds 1,2,5 and 7 Was commission of the offence proved?

Grounds 1, 2, 5 and 7 all question whether respondent discharged the onus of proving the commission of the offence.

Appellant submitted before me that there was no evidence to support the charge, that the customer was apprehended on his way out and the uncharged goods did not pass through his till.

On the other hand respondent referred me to a statement by D Rusenza an eyewitness who observed appellant scanning certain listed items and skipping the scanning of the items in question.  This witness waited to see how the transaction would be completed.  He saw appellant giving carrier bags without charging (see pages 52 to 54 of the record).

Further evidence was in the form of the receipt found in possession of the customer which confirmed the goods in question had not been paid for.

The customer’s own statement (page 56 of record) confirms that the customer was attended to by appellant.  Therein he confirms taking all the items including the ones not paid for, to appellant’s till.  Further he confirms not having paid for the items in issue.  In this way he confirms the eye witness statement.

Given an opportunity to explain what had happened, appellant in his statement does not explain anything. He just explains he was ordered to close his till for a spot check.

Further I was referred to a document that shows that the customer paid an admission of guilt fine as well as a record showing that appellant was convicted of theft in the magistrates’ court where the burden of proof is higher – it is proof beyond reasonable doubt.

In the light of the cumulative effect of the evidence I was referred to, I find no merit in appellant’s grounds of appeal 1, 2, 5 and 7 and dismiss all of them.

Grounds 3 and 4 Minutes not confirmed as correct record by parties and grossly edited

Appellant did not make any submissions on these points before me. Appellant did not however point to the parts he alleged were not a correct record and has not demonstrated how he was prejudiced.  Instead he has used the same minutes to lodge his appeal.

Respondent submitted that if one is to remove the minutes, the reports submitted provide enough evidence to prove that appellant committed the offence.  In particular the reports from complainant and the customer are enough evidence especially as validated by the admission of guilt fine and the conviction.  I note too that even where the customer changed his version before the employer, this was captured without the employer changing the version in his favour (page 25 of the record).

I was pointed to page 48 of the record where it is alleged that the designated officer refused the request to adjourn the hearing for the purpose of cross examining the witness.  I note however that the minutes do in fact record this.  The designated officer upon the submission that appellant would answer after cross examining the customer says “since we have the customer report I don’t think there is need to call the customer here, since he is your witness you should have called him to testify”

This is a fitting case to apply the principle in Chataira v ZESA SC83/2001 wherein it was held that there is no need to always lead viva voce evidence and that an employee must be shown any statement or documentary evidence being produced but he cannot insist that the person who made the statement be called in to be cross examined.

Consequently I find no merit in grounds of appeal 3 and 4.

Ground 6 – Was a fresh hearing ordered by the 1st appeal?

It is common cause from the submissions of the parties that respondent had initially not complied with Section 6.1 of the relevant Code in that appellant was no initially given an opportunity to be heard by the employer.  It is also not in dispute that an initial decision of the Negotiating Committee ordered the respondent herein to reinstate appellant and afford him an opportunity to appear before the employer.  Further, respondent did not immediately comply but acted after receiving a letter from the Chief Designated Agent.  That opportunity was then availed.  In other words, the respondent made right the procedural irregularity.

Respondent submitted that the procedure was done before the prescription of the matter.  It is clear from the record that appellant appeared before a different employer representative from the one he had initially appeared before.

I note in particular that appellant has not pointed me to any prejudice he may have suffered resultantly and to what was irregular in this respect.  I find no merit in this ground too.

Consequently, the appeal being devoid of merit in its entirety is dismissed with costs.

Commercial Workers Union of Zimbabwe, Appellant’s representatives

Makombe & Associates, Respondent’s legal practitioners