Adam Harris v Zimposts

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/H/104/2013
HELD AT HARARE ON 2O NOVEMBER , 2012                    CASE NO. LC/ H/788/2011
In the matter between



ADAM HARRIS                            –               Appellant
And

ZIMPOSTS                               –               Respondent




Before The Honourable L. Kudya, President
For Appellant      - Mr J.Terera(Legal Practitioner)
For Respondent     - Mr A.K. Maguchu (Legal Practitioner)




KUDYA, L.

      Appellant in this matter appealed to this court seeking an order to have

the Respondent company’s decision to dismiss him following allegations of

misconduct set aside.



      The facts of the case are that Appellant who was employed by the

Respondent company as a Senior Stores Clerk was charged on 21 October 2011

with 3 counts of contravening the Respondent’s Code of Conduct.             On 28

October 2011 he was brought before the disciplinary hearing committee which

deliberated his case and found him guilty on the acts of misconduct complained

of.   Following the guilty verdict, the Appellant was dismissed from his

employment. On 23 November 2011 he appealed to the National Employment
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Council for Communication and Allied Service.         The NEC also deliberated his

case and ruled that Appellant was guilty and that the punishment which had

been meted out in his case matched the misconduct which the Appellant had

been accused of. In the result the NEC upheld both the guilty verdict and the

dismissal penalty. Aggrieved by the NEC’S decision the Appellant then appealed

to this court on the instant matter.



      The basic grounds of appeal cited by the Appellant are:



   1) The hearing committee erred by finding the Appellant guilty of all the

      charges when no evidence had been established linking the Appellant to

      the offence.

   2) The hearing committee erred in finding that the Appellant was guilty of

      gross misconduct when no evidence of “gross” was adduced.

   3) The hearing committee erred by finding that Appellant falsified

      documents when in actual fact Appellant had acted in good faith by giving

      a new book to Richard Mataruka without verification that the old book

      had been finished. That is not falsification.

   4) The hearing committee erred in finding that the Appellant did not follow

      procedure when in actual fact no such explicit specific procedure was laid

      down and Appellant had no induction on the job and was never availed

      any set procedure to follow.

   5) The hearing committee did not consider the highly mitigation factors like

      the long experience of the Appellant at work, his unblemished and clean

      record and also his personal circumstances.




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   On the other hand the Respondent maintained that all the grounds of appeal

had no merit as all the issues raised were addressed by the hearing committee.

In the result it prayed that the appeal be dismissed and the order of the hearing

committee be allowed to stand.



   Before each of the grounds of appeal is analyzed and addressed it is

pertinent to note that of all the 3 charges which the Appellant was charged with

the guilty verdict and the dismissal penalty were only arrived at after the

disciplinary committee members had reached a deadlocked and the chairperson

had used his casting vote as provided for in the Respondent’s Code of Conduct.



   This court’s powers on an appeal in the context of the facts at hand are as

laid down in the case cited by Respondent that 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”



      Applying the above legal principle to the instart case the question which

this court had to answer was whether the decision of NEC to uphold the

Appellant’s guilt and dismissal was so outrageous that it merited this court’s

interference.




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      Turning now to each of the grounds of appeal it is worth noting that as

regards the first ground the NEC observed that the disciplinary committee had

unanimously agreed that the Appellant was guilty of all the charges complained

of. Essentially its finding simply endorsed the findings of the disciplinary

committee on that point.



     The issue therefore is whether indeed on record there was evidence which

had been used to show that Appellant was guilty. A reading of the record of

proceedings before the disciplinary committee shows that the committee was

satisfied that Appellant was guilty of gross misconduct because he had issued

out receipt books without verifying that those which had allegedly been used up

had been so used up.

        All that the Appellant told the hearing committee was that he had not

checked to confirm the fact because he took the word of the persons asking for

the books.   It is note worthy that Appellant conceded that the books were

security items which could cause loss if they got into the wrong hands.



        The committee found that it was imperative that Appellant verify that

indeed a book had been used up. It also relied heavily on the evidence of

Appellant’s Supervisor who stated that such checks had to be done before the

Appellant could issue out a new book. If the Appellant had taken the trouble to

check whether or not the books he was signing off as having been used were

indeed so used up the tickets which found their way into the streets would not

have done so.




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         Such an approach to duty leads to the inescapable conclusion that his

omission was so gross that it demonstrated lack of seriousness with his job. The

court is therefore not persuaded that the finding by the court below was

baseless or so irrational that it would warrant this court’s interference. The first

ground should therefore fail on that basis.



         The same sentiments go for the second ground of appeal where the

Appellant argues that his conduct could not be termed gross.           However as

explained above where an employee deals with security items in the manner in

which the Appellant did it is clear that such misconduct is of a gross nature. It is

also pertinent to observe the effect of the Appellant’s conduct on the operations

of his employer. As already stated above failure to verify the fact that the books

had indeed been finished exposed the Respondent to serious prejudice if the

documents found their way into the wrong hands.            The court is therefore

convinced that there is no merit in the second ground of appeal. It also should

fail.



        As regards the third ground, Appellant argues that he did not falsify the

records but was misled to record the false information that the books were

complete when in truth and in fact they were no complete as such. The court

agrees that from a legal perspective on the count on falsification there was need

to adduce evidence to the effect that the misrepresentation were done with

intention to mislead or prejudice the Respondent.



        A reading of the evidence on the record shows that whilst there was no

clear cut indicator that Appellant’s recording were calculated to deceive, the fact


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that he was reckless by putting down unconfirmed information leads to the

conclusion that it was reasonably foreseeable that anyone could rely on the

endorsed information to one’s detriment. On that score the court is not

convinced that the finding on this point was outrageous.



         Whilst it might not have been made based on one hundred percent

evidence of Appellant wanting to deceive it was reasonably foreseeable that

such unconfirmed information could deceive. In the result there was nothing

remiss about the finding. In any event, even if the court were to accept that it

was irregular to find as such on this aspect the cumulative effect of the

Appellant’s conduct would still have the same net result.



       In fact that charge did not add/detract from the main charge of gross

misconduct. Without this charge, the Appellant’s guilt would still have been

there based on his failure to check thoroughly whether the security books had

been finished or not.



     The fourth ground centered mainly on the procedure which the Appellant

allegedly did not follow. His argument was that there was no manual specifying

that he had to check that the books were finished. To get to its finding that

Appellant violated the procedure, the adjudicating body below relied on the

evidence of training manuals at a workshop which Appellant was said to have

attended.

   All he could tell the court was that indeed he went to the workshop but that

was a long time ago hence he could not remember for certain whether or not

he was trained on this aspect.     In view of the fact that Appellant did not


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controvert the fact that training had indeed been done but due to lapse of time

he could not remember the training content, it would not be proper for this

court to rule that the finding by the body below defied logic.



      Whilst it was desirable that there be certainty in terms of what Appellant

had to do vis security items it is also wrong to say that where the instruction is

not founded or a clear manual them the employee should be absolved. The

court has already stated that by their very native security items have to be

treated with utmost care otherwise they would not be security items.



    This court can therefore not fault the factual finding of the hearing body on

that part. As stated above the charge did not detract from the main charge

which led to the Appellant’s dismissal. The court is therefore satisfied that this

ground also has no merit. It should also fail.



      Finally, the Appellant argues that the penalty should have been more

corrective than punitive. The stance on penalty is well settled by a variety of

cases. Some of them like the case of Malimanji vs CABS 2007 (2) ZLR77 sates

clearly that the prorogate to dismiss lies with the employer.        Even though

section 12(4) (b) of the Labour Act Chapter 28: 01 enjoins the employer to take

note of mitigation before penalty that does not take away the employer

common law right to dismiss if it takes a serious view of the offence in question.



        In the instart case, whilst it is correct that the Appellant had served the

Respondent faithfully for a long period of time the gravity of the misconduct




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was such as this court cannot find that in its exercised of discretion the

employer erred.

         As earlier noted the case at stake involved security items with potential

prejudice at the employer directly and to its clients.                           It was thus not

unreasonable for the employer to decide that, not withstanding the mitigating

factors the aggravatory factors outweighed the mitigratory ones. The court is

satisfied that the appeal by the appellant lacked merits in its entirety. It should

therefore fail.



It is therefore ordered as follows



       1) That the appeal being devoid of merit be and is hereby dismissed.

       2) No order as to costs.




Signed

L. KUDYA                          --------------------------------------------

President Labour Court




Mwonzora and Associates – Appellant’s Legal Practitioners

Dube, Manikai and Hwacha- Respondent’s Legal Practitioners




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