Spar Harare (Pvt) Ltd v Collins Chipetu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/285/2014
HELD AT HARARE ON 30 JANUARY, 2014
CASE NO. LC/H/142/2013
AND 23RD MAY, 2014
JUDGMENT NO. LC/H/285/2014
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/285/2014

HELD AT HARARE ON 30 JANUARY, 2014		CASE NO. LC/H/142/2013

AND 23RD MAY, 2014

In the matter between:-

SPAR HARARE (PVT) LTD				-	Appellant

And

COLLINS CHIPETU					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr.R. Nembo (Legal Practitioner)

For Respondent 	-	Mr Z. Mufanebadza (CWUZ)

CHIVIZHE, J.

The appellant is a former employer of the Respondent.  Respondent was suspended from employment on the 2nd of March 2012 on allegations of contravening:-

Part 2 of paragraph 6 of Group iv offences of the National Employment Council for Commercial Sectors (N.E.C.C.S.) Code of Conduct.

The Section reads as follows:-

Dishonesty and Other Related Offence, “Unlawful taking of property with the intention of permanently depriving the company of the use of such property.”

The circumstances surrounding the charges are that sometime in March 2012 the Respondent deliberately misrepresented to a refuse collection company that was normally contracted by the Appellant to collect discarded bottles at the Appellant’s premises.  It was Appellant’s allegation that when he did so Respondent knew he was supposed to have removed the said bottles at his own cost.  This was as a result of an oral agreement he had entered into with Appellant’s representatives that he (respondent) would in exchange of pallets donated to him by the Appellant clear the discarded bottles at Appellant’s premises at his own cost.  It was Appellant’s position that as a result of Respondent’s actions it had been prejudiced in the sum of $140.00 paid in collection costs to the refuse collection company.

The Respondent was arraigned for a disciplinary hearing on the 11th of April 2012.  He was found guilty on the charge.  The matter was subsequently referred to the employer who also conducted a hearing in Respondent’s absence the Respondent having opted not to avail himself.  The Respondent was found guilty and consequently dismissed from employment through a letter dated 4 May, 2012.

The Respondent referred the matter initially to the Mashonaland Local Joint Committee.  When that body dismissed his appeal and upheld his dismissal the Respondent then referred his appeal to the National Employment Council for the Commercial Sectors (N.E.C.C.S.) Negotiating Committee.  That body had in its decision reversed the decision of the Local Joint Committee and handed down an order directing the Appellant to reinstate the Respondent without loss of salary and benefits from the date of dismissal.  The Appellant was aggrieved and noted the present appeal.

The appeal has been noted on the following grounds:-

The negotiating committed grossly erred in holding that Appellant had failed to establish a case against Respondent and that it could not rely on circumstantial evidence when the following is apparent:-

There was an oral contract, which is legally valid between Applicant and Respondent, in terms of which Respondent who was employed by Applicant was:-

given broken pallets by Appellant and;

in exchange or in lieu, Respondent was to remove purity bottle from Appellant’s premises at his (Respondent) own expense.

The existence of a contract is and was confirmed by Appellant’s witnesses and by Respondent’s own written report.

Contrary to the terms of the agreement, Respondent collected and took the broken pallets but proceeded to contract a transporter, at Appellant’s expense to remover the purity bottles.

Appellant suffered double prejudice to the transporter whom Respondent engaged to remove the purity bottles.

All the facts on this matter clearly reflect that Respondent is guilty of dishonesty.

The Negotiating Committee to reach its conclusion found that in the absence of evidence in the form of written document showing the existence of the pallets for bottles’ agreement between the parties, the Appellant had no valid claim.  The committee found that appellant had failed to prove its allegations against the Respondent.  The Appellant in the first ground of appeal attacks that decision on two basis.  Firstly, that the Negotiating Committee erred in holding that written documents were the only means by which Appellant could prove the existence of the agreement with Respondent.  I shall address the point initially.

It is clear upon a perusal of the record  and after listening to submissions does not dispute that the Respondent agrees that there was an agreement between the parties which agreement was for the Respondent to carry bottles using his own means to dispose the bottles. This arrangement was in exchange for pallets donated to Respondent by Appellant. The Respondent also does not dispute that the agreement was an oral agreement neither does he deny that contrary to the agreement he had engaged a contractor to remove the pallets and billed Appellant.  It is trite that an oral agreement is as binding as a written contract.  Oral evidence is thus sufficient to prove the existence of such an agreement and consequently the breach of such an agreement.  (The Court was aptly referred to Willies Principles of South Africa Law – 6th Edition at page 34 paragraph 3).  It is clear that based on the evidence of the witness and the Respondent’s own statement the Appellant established the existence of an oral agreement and its subsequent breach by the Respondent.

The Negotiating Committee in my view clearly erred in holding that a written document is the only means by which the Appellant could establish the existence of the agreement between the parties and the subsequent breach.

Whilst the Negotiating Committee may have erred in its findings as above the Negotiating Committee was however correct in finding that the Appellant failed to prove its allegations against the Respondent.  The charge leveled against the Respondent was that of unlawful taking of property with the intention to deprive the employer permanently which essentially amounts to theft.  The facts and circumstances of this matter however do not point to theft.  There was clearly breach of an oral agreement between the parties but that is not the issue before the Court.

The Respondent’s conduct on the facts clearly point to ‘dishonesty’.  The Respondent in its own written statement admitted to an agreement between the parties where he was given broken pallets by Appellant, he was then to in exchange remove discarded purity bottles from Appellant’s premises at his own expense.  The Respondent does not dispute that contrary to this agreement he contracted a transporter at Appellant’s expense to remove the purity bottles.  There is no doubt that the Appellant was double prejudiced by Respondent’s actions through loss of the broken pallets and payment of $140 to the transporter contracted by Respondent to remove the purity bottles.

Whilst clearly the facts point to ‘dishonesty’ this was not the charge leveled and established by the Appellant. The Appellant leveled the charge of unlawful taking of property with the intention to deprive the employer permanently.  That charge clearly could not be sustained on the facts.  Firstly, it raises the issue as to which property the Respondent unlawfully deprived the Appellant was it the broken pallets, or the amount of $140 paid by Appellant to the contractor.  Secondly, on the basis of the authority granted  through the oral agreement for Respondent to collect the broken pallets the element of unlawfully taking Appellant’s property with intention to deprive permanently clearly could not be sustained.  In the circumstances it is my finding that the Negotiating Committee was correct in its finding that the Appellant failed to establish the charge.

The appeal cannot succeed therefore.  It is accordingly dismissed with costs.

Messrs Sawyer and Mkushi – Appellant’s legal practitioners

Commercial Workers Union of Zimbabwe – Respondent’s representative