Sylvester Mucheri v Sino Zimbabwe Cotton

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/61/2014
HELD AT HARARE ON 17 SEPTEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	       JUDGMENT NO. LC/H/61/2014

HELD AT HARARE ON 17 SEPTEMBER 2013,   		   CASE NO. LC/H/300/2013

21 JANUARY 2014 , 30 JANUARY 2014 &

14 FEBRUARY 2014

In the matter between:-

SYLVESTER MUCHERI					-		Appellant

And

SINO ZIMBABWE COTTON				-		Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr B. Ndhovu (Legal Practitioner)

For Respondent 	-	Mr W. Chivaura (Legal Practitioner)

CHIVIZHE J:

The Appellant noted an appeal against the determination by the National Employment Council for the Textile Industry Appeals Board dated 8 April 2013 which determination upheld the Appellant’s conviction on the charge of theft and the imposition of the dismissal penalty.

The agreed facts in the matter are that the Appellant was, on the 25th of August, 2012, upon being searched on his way out of Respondent’s premises, found in possession of 4 ball bearings in his personal bag. The Appellant was suspended on 27th of August 2012. The Appellant was arraigned for a disciplinary hearing on 5 September 2012.  He was found guilty and a sentence of dismissal was imposed.  He then appealed to the Disciplinary Appeals Committee on 25 September 2012.  The body in turn upheld the decision of the disciplinary hearing committee as well as the dismissal penalty.  The Appellant still dissatisfied then noted his appeal with the NEC Textile Industry Appeals Board. That body in its determination handed down on 8 April 2013 dismissed the appeal and confirmed Appellant’s conviction on the charge of theft. The body returned the dismissal penalty. The Appellant then noted the present appeal with the Labour Court.

The appeal has been noted on the following grounds of appeal;

“I wish to appeal against council’s decision. My prayer is if you can look into my case, I feel:

Theft is only determined by the use of police and courts in my case there is no involvement of police which clearly shows that it was a planned issue to do away with me.

The case was done unprocedurally since on my hearing I was wrongly represented the secretary and chairman were from management and only one committee member was present i.e. only one worker’s committee against (4) four managerial representatives. This is a breach of composition according to textile code of conduct which states that the hearing committee shall consist of 92) two members from management and (2) two from workers committee. This was a, constructive measure to do away with me.

On my disciplinary appeal Memory Muswere was a committee member then in my rehearing she was a chairman which clearly shows that the proceedings were not properly done.”

The appeal is opposed. In its notice of response the Respondent has disputed the four points raised by the Appellant in his appeal.  The Respondent has also raised as a point in limine that the Appellant has in his appeal raised issues that ordinarily would be raised in an application for review.  The point is clearly merited.  It is trite that a review cannot be brought through an appeal.  The two procedures are completely different. The Appellant was initially a self-actor when he filed his appeal but is presently represented by a legal practitioner. Having assumed agency in this matter Counsel should have rightfully addressed the point as raised.  It is the court’s finding that grounds numbers (ii) and (iii) being clearly grounds of review are improperly before the court. The only ground of appeal in terms of which this court has been properly approached is consequently ground of appeal number (i) which is the ground the court shall proceed to determine.

In the first ground of appeal Appellant alleges that the charge of “theft is only determined by the use of the police and the courts”.  He suggests that because there was no involvement of the police by the Respondent it shows clearly Respondent’s pre-determined plan to dismiss him from employment.

The Appellant is clearly misinformed on the role of the disciplinary authority in the work place.  An employer’s disciplinary powers extend only to acts which constitute breach of contract by the employee or breach of provisions of the relevant Code of Conduct. Sometimes an employee’s misconduct may also amount to a criminal offence e.g. theft.  The employer however has no criminal jurisdiction over the employee.  The State has criminal jurisdiction. The employer however can in its discretion decide to deal with the employee through its own internal disciplinary processes without referring the matter to the police for the employee to also face criminal charges.  Even if the employer selects to refer the matter to the police this does not stop the employer from conducting its internal disciplinary proceedings to address the breaches of contract and/or Code of Conduct.

It is clear that in this case the Respondent opted not to refer to the police.  Respondent proceeded to act within its right to institute lawful disciplinary proceedings against its employee.

On the merits of the matter the Appellant was clearly facing a charge of theft.  The Appellant admitted in the disciplinary hearing that he was found in possession of the ball bearings.  When asked he alleged that the ball bearings where planted in his bag by an unknown person.  He however failed to discharge the onus on him to prove to the Disciplinary Committee who could have planted the ball bearings resulting in the Disciplinary Committee finding him guilty on the charge.  The matter went through all appeal structures internally up to the NEC Appeals Board.  His conviction and the penalty were upheld at each stage.  I am satisfied on the basis of the facts and evidence in the record the Appellant was properly found guilty.  The charge of theft involving as it does a breach of trust goes to the root of any employment contract.  The penalty of dismissal was clearly warranted.

The appeal is dismissed with no order as to costs.

Kanoti & Partners, appellant’s legal practitioners

Maunga Maanda & Associates, respondent’s legal practitioners