Stanford Ruzengwe v Schweppes Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/116/2013
HARARE, 6 SEPTEMBER 2012
CASE NO. LC/H/276/2011
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENTNO.LC/H/116/2013

HARARE, 6 SEPTEMBER 2012			CASE NO. LC/H/276/2011

In the matter between

STANFORD RUZENGWE				-		Appellant

And

SCHWEPPES ZIMBABWE			-		Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr J. Mangeyi – Legal Practitioner

Murwisi and Associates

For Respondent	-	Mrs R.T.L. Matsika – Legal Practitioner

Wintertons Legal Practitioners

CHIVIZHE, B.T.:

The appeal is noted as against the decision by the Respondent Appeals Committee which found Appellant guilty of two charges viz

Breach of Section 5.2.5 of the Schweppes Employment Code of Conduct that is  (Wilful Disobedience to a lawful order given by the immediate superior/employer

Breach of Section 5.2.12 –Neglect of duty and consequently.

The background facts which are common cause are as follows;

The Appellant was employed by the Respondent as its Distribution Supervisor.  He was given leave of absence to attend a training session from the 18th to the 21st of January, 2011.  On the 21st of January of 2011 the training ended earlier around 1100hours.  After training the Appellant went to his department and advised his subordinates to plan for the weekend programme.  During his absence his subordinates stole 608 cases of Mazoe Orange Crush valued at US$9 093, 89.  The Appellant was suspended from employment.

A disciplinary hearing was convened on 17th of March, 2011.  The Disciplinary Committee found Appellant guilty on the charges and consequently imposed a dismissal penalty.  The Appellant lodged two internal appeals but failed.  Still aggrieved the Appellant then lodged the present appeal.

The appeal is noted on the following grounds of appeal;

The Second Appeals Committee erred in not seriously considering that I was not expected to return to work on the 21st of January after the training session which had ended at 11a.m

The said Appeals Committee erred in not seriously considering that I had lawfully delegated my duties during the time for which I was expected to be on the training session.

The said appeals Committee erred in not considering that my initial appeal was held outside the record.

The said Appeals Committee failed to give its direction within five (5) working days o f receipt of notice of appeal as is required by s9.12 of the Schweppes Employment Code of Conduct.

The said Appeals Committee failed to note that I was not necessarily negligent as alleged.

In any event, the said Appeals Committee failed to seriously consider mitigatory factors.

I shall address the points seriatim

Whether the second Appeals Committee erred in not accepting the Appellant’s explanation that he was not expected to return to work on the 21st of January, 2011 after the training session.

The Appellant’s contention is that he was not legally obliged to report for duty on the 21st of January, 2011 after the training session had ended.  No evidence or proof had been tendered by Respondent to support the claim by Respondent that he was so legally obliged.  The Respondent’s position on the other hand is that Appellant was granted leave for purposes of attending a training session.  The leave was for that purpose only and upon completion he was expected to resume normal duties.  I concur with the Respondent’s exposition of the law.  An employee under the common law has a duty to devote all his normal working time to the employer’s business.  The Appellant was therefore expected to return to work after the training session.  It cannot be a defence as submitted by the Appellant that he decided to go to the bank after training because when he decided to do that it is common cause he had not informed his immediate supervisor.

That the said Appeals Committee did not consider the fact that the Appellant had delegated his duties during the time he was training.

The Appellant submits the Appeals Committee did not consider he had lawfully delegated his duties for all the time he was in training.  The Respondent does not agree with position.  It is clear from the facts in the record that the delegation that was done by the Appellant was for the duration of the training session.  The delegation would have automatically lapsed upon the conclusion of the training session.  Appellant was expected to thereafter resume his normal duties.  There would be no reason why such delegation would extend to even after the conclusion of the training session.  I would dismiss the ground of appeal for that reason.

That the Appeals Committee erred in not considering that the noted appeal was held outside the record.

The Respondent conceded that it gave its ruling outside the prescribed time limit.  The court was urged not to decide the matter purely on this procedural irregularity but to consider the merits of the case.  In Tichawona Nyahuma vs Barclays Bank SC 671/05; the principle is established that it is not every procedural irregularity that vitiates disciplinary proceedings.  In order to succeed in having the proceedings set aside on the basis of a procedural irregularity, it must be shown that the party concerned was prejudiced by the irregularity.  In casu no averment or allegation as to what prejudice, if any, the Appellant suffered as a result of the irregularity has been made.  I would therefore dismiss the ground on that basis.

That the Appeals Committee failed to note that the Appellant was not negligent.

The Appellant’s submission is that as he did not attribute to the theft of the products he was not negligent.  There was no casual link established by the Respondent between his so called negligence and the theft of the products.  It was Appellant’s further submission the Disciplinary Committee had found him guilty on different factual basis from the Respondent.  The Respondent position is that the Appellant was properly found guilty on the charge.  The Respondent established in the proceedings before the Disciplinary Committee that the Appellant was negligent in that he had absented himself from duty after the training session.  He had therefore failed to supervise his subordinates who had in his absence connived to steal Respondent goods worth US$9 093.89.

It cannot be correct as submitted by Appellant that the Disciplinary Committee in arriving at its decision relied on the wrong factual basis.  In making this submission the Appellant is obviously referring to the findings by the Disciplinary Committee made in respect of the one point as to who was responsible for CCD Clerk on page 3 of the record.  The Disciplinary Committee handed down findings that centered on that point.  The record however shows that the Respondent did establish the elements of the charge before the Disciplinary Committee.

That the Appeals Committee erred in failing to consider factors in mitigation

The last ground is based on the penalty.  The Appellant contends the Respondent’s Disciplinary Committee and in turn the Appeals Committee failed to give due weight to his mitigatory factors.  The Disciplinary Committee had given weight to aggravating factors that had not been placed before it by the complainant.  As a first offender Appellant should have been treated with leniency.  The Respondent disputes the submissions by Appellant.

The Appellant raised the following factors in mitigation before the Appeals Committee;

That he had a clear disciplinary record

that he had served the Respondent for eleven years; and

that he usually worked during weekends without being paid overtime.

It cannot be concluded that because no aggravating factors were placed before the Disciplinary Committee the Committee failed to properly weigh the factors in mitigation.  The circumstances of this case would tend to show that the aggravating factors heavily outweighed the mitigatory factors.  The charge Appellant was facing is also a very serious charge.  Ina aggravation it is clear that the Appellant who occupied a very senior position decided to carelessly extend his official leave and failed to ensure that adequate measures had been put in place in his absence to ensure supervision of subordinates.  Through his actions the employer had suffered considerable loss.  I consider that the penalty imposed by the employer was justified.

Accordingly the appeal stands to be dismissed.  Each party shall pay its own costs.