Shepherd Kodha v Zimbabwe Phosphates Industry Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/103/2024
HARARE 1 MARCH 2024
CASE NO R- LC/H/110/23
11 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 1 MARCH 2024

11 MARCH 2024

JUDGMENT NO LC/H/103/2024 CASE NO R- LC/H/110/23

SHEPHERD KODHA	APPELLANT

ZIMBABWE PHOSPHATES INDUSTRY	RESPONDENT LIMITED

Before the Honourable G. Musariri Judge:

For Appellant	-	Mr A. Mufari, Attorney

For Respondent	-	Ms T Kachara, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01 as read with Rule 19 of the Labour Court Rules, 2017. Respondent opposed the appeal The notice of appeal contained 6 (six) grounds of appeal. The grounds raise 2 (two) issues which shall be dealt with ad seriatim.

Whether the guilty verdict was properly upheld in light of the conclusions of the investigation report:

It is common cause that prior to disciplinary proceedings the employer conducted investigations which culminated in a report dated 31st October 2022. A copy of the report is filed of record. The background to the investigation reads

“2. Background

On the 11th October 2022, the Security Officer received anonymous information that false delivery notes were being used to dispatch gypsum product.	Based on that predication, a fraud examination was conducted, which included reviews of relevant records and interviewing of appropriate person and the allegation was confirmed and investigations ensued.”

The relevant conclusions by the report state

“5.1 Root cause

System failure – Failure to follow invoicing procedure (PR/BL/03/3)

5.2 Contributory Causes

. Inadequate supervision of both the weigh-bridge operators and documentation generated

. Lack of proper loading instructions

. Nonexistence of balances and checks by immediate Supervisor on missing sequential D/notes

. Poor security management of delivery notes at the main gate

. Use of unsupervised manual system when Navison is down

. Inexhaustive handover takeover of both weighbridge operators and main gate Security.

8.0 How could The Incident Have Been Prevented. The incident could have been prevented ….

If the supervisor had provided an oversight role (Done his duties diligently)”

9.0 Conclusion

It was the panel’s agreed conviction, that, Mr Dukwendo manipulated the system within the scope of the incident in question, for possible gain in his personal capacity and embezzled the company of large sums of money. The scam could involve more people hence the sudden resignation by T. Dukwendo to save his kith and kin.”

Appellant double-downed on paragraph 9.0 and argued that it exonerates him. It identified the Weighbridge Operator, Dukwende as the culprit who manipulated the system and caused the loss suffered by Respondent. Appellant further argued that he was charged for failure to collect, verify and upload pink (delivery) notes on Navision system. Respondent failed to prove that there were notes available for collection which he failed to collect verify and upload.

Per contra Respondent argued that the investigation report supports the guilty verdict. Respondent relied on the following excerpts from the report,

“5.2 Contributory Cause

. Non existence of balances and checks by immediate Supervisor on missing sequential D/Notes.”.

Respondent argued that as the Customer Liaison Administrator, Appellant was responsible for the D-Notes. He should have noted the missing notes and investigated the cause but did no such thing. However the Notice of Allegation to Appellant dated 7 November 2022 reads

“…You were not collecting and verifying the pink delivery note copies of manual

dispatches from the main gate in order (to ensure) their invoicing and entry into Navison as was expected of you. From that investigation four gypsum trucks dispatch delivery notes were fraudulently captured as firewood (scrap bluer) pack. Further investigations that year-to-date a total of fourteen (14) trucks were dispatched without any record of them in Navison. They were recorded to have dispatched either …or gypsum but the file copy (for the ones found) recorded either firewood or scrap… your omissions resulted in the loss of USD 30,667.60. Would you please provide your response to the allegations?”

It is clear that Appellant was never charged for failure to investigate “missing sequential D/notes” as now alleged. He was simply charged for failure to collect, verify and upload D/Noes. The fact that the investigation report may imply some wrongdoing on Appellant’s part is not the point. The charges laid are the key issue here. An employee cannot be convicted of a charge which was not laid against him. The disciplinary committee concluded that

“v. The Accused failed to query the broken sequence of the serialised pink delivery Notes despite knowledge that it is one of his core duties.

vi The Accused is a supervisor by his position and he was supposed to raise alarm when he noticed during verification process that sequence was broken and was finding it difficult  to find pink papers/

The Weighbridge Operator in the night shift might have retrieved the delivery note and destroyed it.

If the Accused had performed his duties diligently he should have questioned the broken sequence of pink delivery notes.”

The Committee found appellant guilty in respect of missing delivery notes. Yet he was charged for failure to collect and verify the notes. He could not collect missing notes which as the committee noted could have been destroyed by Dukwende. It is concluded that the conviction was inconsistent with the charge laid.  This conclusion is fortified by the comments in

Nyarumbu v Sandvik Mining SC 31/13

Per Patel JCC at P 3

“Nevertheless, there are certain basic principles that neither a court or tribunal can depart from. One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words both offences must bear some legally cognizable affinity with one another.”

Whether the respondent proved the alleged prejudice in the sum of US $ 30,667.60

In light of the Court’s take on the 1st issue, it is unnecessary to consider the 2nd issue. Its become redundant.

CONCLUSION

The disciplinary committee wrongly returned a guilty verdict for reasons expatiated above. By extension the appeals authority and the NEC erred in upholding the wrong verdict. Perforce the appeal in casu must be upheld.

Wherefore it is ordered that

The appeal be and is hereby allowed;

The determination by the NEC for the Chemicals, Fertilizers, Battery & Plastics Manufacturing Industries dated 12 December 2022 and signed 9 January 2022 be and is hereby set aside and substituted as follows

“The appeal be and is hereby allowed.” and

(a) Respondent shall reinstate Appellant without loss of salary and benefits, or

(b) Respondent shall pay Appellant damages in a sum either agreed by the parties or assessed by this Court

G MUSARIRI J-U-D-G-E