TM Supermarkets v Marian Machipisa

IN THE LABOUR COURT OF ZIMBABWE        JUDGMENTNO. LC/H/109/2013
HELD AT HARARE ON 22 JANUARY, 2013         CASE NO. LC/ H/690/2011

In the matter between




TM SUPERMARKETS                      - APPELLANT

And

MARIAN MACHIPISA                      -RESPONDENT



Before The Honourable L. Kudya, President

For Appellant         - Mr K. Mutsvangwa (Human Resources Officer)

For Respondent        - Mr Z. Mufanebadza( Unionist)



KUDYA, L


      This is an appeal against the decision of the National Employment

Council for the Commercial Sectors Negotiating Committee hereinafter

referred to as the NEC. The NEC had reinstated the Respondent to her

original position with full pay and benefits from the date of her

dismissal .The reinstatement irked the Appellant Company and resulted in

the instant appeal.



      The brief facts of the case are that: On the 1 st of July 2010 Respondent

who was in the Appellant’s employ as a till operator incurred a shortfall of

US $99.84 which she failed to satisfactorily explain to the Appellant. She was

charged with contravening the Appellant’s code of conduct, which is

contravening group 4( b) which provided as follows:

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         “Unsatisfactory performance (lack of skill which the employee expressly or by
         implication holds himself to possess.”




                                                      JUDGMENT NO. LC/H/109/2013



         On the 8th of July2010 she was brought before a Disciplinary

Committee on the basis of the above charges. The Committee found her

guilty    of    the    misconduct        complained   of   and   recommended      her

dismissal .Consequently she was dismissed from work.



         She appealed to the Local Joint Committee (L.J.C) which set aside the

verdict and the penalty of dismissal in her case. Aggrieved by the decision of

the L.J.C, Appellant Company appealed to the N.E.C. The N.E.C upheld the

decision of the L.J.C. It is that decision of the N.E.C which Appellant has now

appealed against to this court.



The grounds of appeal area as set out below:



         1.The Chief Designated Agent of the N.E.C.C.S.Z has failed to notice

         that the categorization of offences into groups is dependent on the

         gravity of a particular offence . An offence in group 1 is less in terms

         of its gravity than the one put in group 4.

         2. A loss of US $99.84 on a single occasion during a working day is a

         significant loss which the Honorable Designated Agent has failed to

         notice.


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       3. What is significant is not a work schedule for the loss but the

       amount of loss inflicted upon the employer by the Respondent.

       4. At the rate of losing US $99.84 per till operator per day and if it is

       condoned, then the business is forced out of operation by such a

       cumulative loss.

       5. Group 4 offences merit a group 4 position simply on the grounds

       of their magnitude or gravity.




                                              JUDGMENTNO. LC/H/109/2013



       On the other hand the Respondent maintained that there was no

misdirection on the part of the N.E.C in upholding the L.J.C’s decision .She

argues that, it was imperative that there be standards against which to

measure her alleged lack of skill. In the absence of such a standard, she

maintains that the N.E.C was therefore well guided to decide that she had

been dismissed irregularly and was entitled to the reinstatement which the

N.E.C upheld.



   It is important to observe that a reading of the grounds of appeal shows

that they are defective to the extent that they do not particularize why this

court should upset the decision of the N.E.C. Given the fact that the

Appellant Company conducted its own defense without legal expertise the

court was prepared to condone its failure to adhere to the rules of court to

the letter.




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   The powers of the Labour Court on an appeal based on facts are set out

in the case of Nyahondo vs Hokonya and others 1997(2) ZLR 475 (SC)

where the court stated thus:


      “An appellate court will not interfere with the decision of a trial court based
      purely on findings of fact unless it is satisfied that having regard to the evidence
      placed before the trial court, the findings complained of are so outrageous in
      their defiance of logic or accepted moral standards that no sensible person who
      had applied his mind to the question to be decided could have arrived at that
      decision”


      This case shows that it is not for the appellate court to substitute its

discretion for that of the court which dealt with the matter at a level below

the now appeal court . In fact it should be clear that the decision which was

arrived at by the court below was so outrageous in its defiance of logic that

it cannot be


                                                   JUDGMENT NO. LC/H/109/2013



made to stand. The decision should be so irregular that it borders on malice

or bias on the part of the maker of that decision.



      In the instant case, it is pertinent to note that the N.E.C’s argument

was that where there were no set standards to use to measure the alleged

lack of skill on the part of the Respondent. It found it difficult to accept the

fact that the employer had exercised its discretion well when it was not clear

how the employer ended up preferring the charge it preferred when there

were no set standards as to what was required of the Respondent. It is
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basically on that ground that the N.E.C was convinced that the decision of

the L.J.C was well placed as opposed to the decision which had been reached

d by the Disciplinary Committee.



     As regards the first ground of appeal, a reading of the N.E.C’s decision

does not seem to support this ground. This is so because, all that the N.E.C

indicated was that, given the fact that the same offence appeared in more

than one category there had to be evidence on record to show why the

employer went for the offence which it charged Respondent with as

opposed to the other offences within the other stated categories.



      Indeed the categorization of offences is based on the gravity of the

offence but the question which the NEC asked itself was, notwithstanding

the employer’ s prerogative to decide on which offence to charge an

employee was such a prerogative exercised on some meaningful basis?




                                             JUDGMENT NO. LC/H/109/2013



      All that the NEC said is that, it was alright for the Appellant to charge

the Respondent with any offence within the categories in issue, but before

doing that there had to be some basis for preferring one charge to the

other. This is where the question of standards therefor became critical.




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      The court is not persuaded that there was any fault with this

reasoning by the N.E.C. It was not enough for the employer to baldly assert

that x sum of loss is grave without the basis of the gravity being spelt out

anywhere in its operations. The court is therefore satisfied that, there is no

merit in this ground and it should fall away.



      On ground two, it is also not true that the N.E.C did not appreciate

that the magnitude of the loss on a single day could be termed gross. All it

said was: How do you say it is gross without a measurement to that effect?

In that light the court fails to appreciate the misdirection complained of in

this respect.



      On ground three, the Appellant argues that, the amount is what is

critical not what classified it as such. The court also fails to appreciate the

Appellant’s reasoning in this respect. For one to argue that in a particular set

up such an action is gross or moderate that decision has to be based on

some standard. It is therefore the court’s view that there was no way

Appellant could divorce the amount from the minimum standard to justify

preference of a particular category of offence. In this respect it is clear that

the reasoning of the NEC could not be faulted.




                                                JUDGMENT NO. LC/H/109/2013



Ground four is a statement of fact which deserved no in-depth comment. It

is true that losses of such a magnitude if left unchecked would cause a
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business to crumble but the issue is not that the N.E.C doubted the gravity

of the

figures. All it questioned was how do you draw the line to say a loss of so

much is gross or minimal without any standard to refer to?



         As regards the fifth ground, there was no argument by the N.E.C that

if the charge was a group 4 offence it merited a penalty outside that group.

All that the N.E.C stated was that, in its view the Appellant could have

resorted to the procedure laid down in section 8(k) of SI 45/ 93 of the

Appellant’s code of conduct which was quoted by the Respondent in her

submissions to the court on the matter. The section in question deals with

recovery of shortfalls. It was Respondent’s contention that this was the ideal

section to use to deal with her case since on the charge under category 4

which Appellant had preferred ,it had failed to show how it measured the

shortfall to be within a particular category.



         The N.E.C was not saying the Appellant should have given a lesser

penalty than that which was prescribed but rather that before the Appellant

decided to exercise its disciplinary powers, it had to be certain that the facts

it had supported the category of offence which it resorted to charging the

Respondent with. The court fails to glean any misdirection on the part of the

N.E.C which can be said to warrant this court’s interference.



         It is clear from what has been discussed above that, the Appellant

failed to make out a good case for the upsetting of the N.E.C’s decision. The

appeal should therefore fail.


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It is ordered that the appeal being without merit be and is hereby dismissed.
                                              JUDGMENT NO. LC/H/109/2013



1) The decision of the N.E.C is accordingly upheld.

2) No order as to costs.




L. Kudya

President Labour Court




C.W.U.Z. – Respondent’s Representative




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