Benard N Tembo v Mashco (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/769/2014
HELD AT HARARE, 3 NOVEMBER 2014
CASE NO 769/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/769/2014

HELD AT HARARE, 3 NOVEMBER 2014 &	       CASE NO LC/H/407/2009

21ST NOVEMBER 2014

Before The Honourable L. M. Murasi

In the matter between

BENARD N TEMBO						APPELLANT

Versus

MASHCO (PRIVATE) LIMITED					RESPONDENT

The Appellant		In Person

For the Respondent	Mr M. Chinanga (H R Manager)

MURASI J:

The appellant was employed by the respondent as an Assistant Branch Manager at its Mvurwi Branch. Following some discrepancies in the handling of a customer’s order the appellant was arrested. The appellant was subsequently brought before a Disciplinary Committee which recommended his dismissal. An appeal to the Appeals Committee did not yield the desired results and the appellant approached this Court for relief. The grounds of appeal that were listed by the appellant are as follows:

Underpayment of wages

Non-payment of wages

Unfair dismissal

It is also pertinent to note that the grounds of appeal did not contain the relevant details showing how these grounds of appeal came about. The record also shows that after noting an appeal with this Court, the appellant went and reported his matter to the Ministry of Labour.

In his submissions, the appellant stated that there were no minutes of the first Disciplinary Committee hearing. He further stated that the only available minutes were those of the Appeals Committee. The appellant further submitted that when he was arrested, he was simply released at Guruve Magistrates’ Court as the respondent’s representative had failed to come and testify. The appellant went further to state that he was unhappy about the deliberations of the Labour Officer, one Mr Mudiwa, as he had failed to produce minutes of the hearing.

The respondent’s representative submitted that the appellant’s case was factually clear. It was stated that the appellant had been arrested for fraud and had been convicted by a magistrate sitting at Guruve. A subsequent hearing dismissed him. The Appeals Committee had rejected his appeal. It was further stated that the appellant had then reported his matter to the Labour Officer. Conciliation had taken place and parties had agreed to settle the matter and the appellant had subsequently collected the amount agreed upon.

The court will first deal with the appeal from the Respondent’s Appeals Committee. This is what the appellant brought before the Court. It is noteworthy that in his address to the Court the appellant did not address issues emanating from that hearing. The appellant had to be constantly reminded that his appeal was against the decision of the appeals committee. The appellant was more concerned with the decision of the Labour Officer. A reading of the Appeal Hearing held on 9 November 2009 shows an interesting scenario. It shows that the appellant was more concerned with his terminal benefits. The appellant does not in any way point to the Appeals Officer where he believed the Disciplinary Committee erred in the hearing that recommended his dismissal. A reading of both hearings does not show that the appellant was not afforded a proper hearing. The record shows he was afforded an opportunity to present his case. It is trite that an appellate court can only interfer with the decision of a lower tribunal or court, where there is evidence of gross misdirection. The court does not find any in this case.

The Court will now turn to the conciliation by the Labour Officer. The Court found the actions of the appellant to be reprehensible. After noting an appeal with this Court on 26 November 2009, the appellant went and made a report to the Ministry of Labour on 6 January 2010. Asked to comment on this anomaly, the appellant feigned little knowledge about the transaction dates and sought to lay the blame on the two offices for giving wrong dates.

The record is clear that conciliation was reached between the parties on 4 February 2010. The appellant signed the document to acknowledge that he was in agreement with the conciliation process. The figure agreed upon was USS2 300-00. During the hearing, the appellant sought to disclaim that he was in agreement with the amount. The appellant stated that there were no minutes to support the document in question. The court is of the view that the appellant seemed to allege that he had not waived his right by the action that he took. It should be mentioned that the appellant actually received the money on 8 March 2010. R.H. Christie in The Law of Contract in South Africa 3rd Ed. States at page 485:

“… when one of the parties, by his words actions or inaction, has evinced an intention not to enforce one or more or all of his rights under the contract we select whichever word seems most appropriate from a list which includes abandonment, acquiescence, release, renunciation surrender and waiver.”

The Form L.R1 signed by the appellant stated thus:

“US$2 300-00 as full and final settlement to this labour dispute. No further claim from either party.”

The appellant insisted that the Labour officer was wrong in determining the figure in question.  The documents do not show that the appellant was being candid with the Court. The appellant signed this document acknowledging that this was in full and final settlement of the labour dispute. He is trying to renege on his earlier commitment after having collected the cash. He is attempting to have a second bite of the cherry. (See Chidziva & Ors v Zisco Ltd 1997 (2) ZLR 368 (SC)).

The Court was generally not impressed by the submissions made by the appellant. He was prevaricative at times and denied issues which were factual as supported by the documents. For example, the Court asked the appellant what had transpired at Guruve Magistrates’ Court following his arrest. The appellant stated that he had been requested by the Clerk of Court to leave some money for refreshments. The truth of the matter was that the appellant had indeed been convicted and sentenced at that court. The appellant was being untruthful.

The final question is whether the respondent erred in dismissing the appellant. It is clear that the commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him. (See Toyota Zimbabwe v Richard Posi SC-55-2007). In this particular case the appellant committed fraud. The appellant had made certain misrepresentations to the respondent’s customer. The respondent’s customer was only refunded when he complained to the Branch Manager who was on leave. The appellant had put the respondent’s business in bad light. The appellant was not apologetic. The court is of the firm view that the respondent was entitled to dismiss him.

In conclusion, the court is of the considered view that the appeal lacks merit and is accordingly dismissed with no order as to costs.