Benjamin Tazvivinga v O.K. Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/81/2023
HARARE, 13 MARCH 2023 &
16 MARCH 2023
CASE NO LC/H/283/16
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/81/2023

HARARE, 13 MARCH  2023 &		 	 CASE NO LC/H/283/16

16 MARCH 2023

In the matter between:-

BENJAMIN TAZVIVINGA			APPELLANT

O.K. ZIMBABWE LIMITED			RESPONDENT

Before the Honourable Kudya J

For the Appellant			In Person

For the Respondent			Mrs Matsika (Legal Practitioner)

KUDYA, J:

This matter has a long and chequered history of going back and forth the Labour Court and the Supreme Court from as far back as 2015.  It was only after the court impressed upon the parties that they were both delaying the attainment of the ends of justice that the parties finally agreed to drop all the technical issues they were haggling over and agreed that the matter be determined on the main merits.  This judgment therefore only concerns itself with the main merits of the appeal which was lodged with this court on 29 April 2016.

Only 2 grounds of appeal were raised and they read as follows:

The Negotiating Committee for the National Employment Council for the Commercial Sectors errored on the facts and law itself, when it upheld the decision of the company (OK Zimbabwe) to dismiss claimant.  The claimant did not perform his work in a Dishonest and Unsatisfactory work performance since the said shortage of $45.00 did not occur but the claimant had an overage surplus of $50.00 which was caused by a system error which failed to post his sales (post void) which was beyond his control which was also noticed in Nyasha’s report (One of the employees.)

A careful scrutiny of these grounds shows that the appellant is of the view that his guilt was not well founded.  His main argument is that he did not act dishonestly or unsatisfactorily but rather that the shortages complained about were a result of his forgetting that he had given a colleague change and also that there was a system error which resulted in him having an overage and not a shortage at the end of the day.  On the other hand, the employer is adamant that the employee acted dishonestly and in response to the appeal the respondent maintained the following.

The Respondent avers that the Negotiating Committee of the National Employment Council for the Commercial Sectors did not misdirect itself by dismissing the Appellant’s appeal and upholding the Respondent’s decision to dismiss him from employment.

It is denied that the shortfall of US$45.00 did not occur.  It is furthermore denied that the overage of US$50.00 was caused by a system error. The record will show that the Appellant admitted to giving one customer US$180.00 instead of US$130.00.  Such conduct constituted unsatisfactory work performance.

In addition, although the Appellant attributed the shortfall of US$45.00 to allegedly giving a customer US$180.00 instead of US$130.00, investigations revealed that that transaction took place after the spot check in the course of which the shortfall of US$45.00 was discovered.  He was therefore being untruthful.

In any event, during the disciplinary hearing, the Appellant admitted to the offence and should accordingly be bound by that admission.

He should also be bound by the Cash Shortages and Overages Handling Procedures document which he signed in terms of which any shortfall or overage of US$30.01 and above justifies the penalty of dismissal.

It is settled that the appeal court should not lightly interfere with the findings of a trier of fact unless it can be demonstrated that such findings were grossly unreasonable Hama v National Railways of Zimbabwe 1996(1) ZLR 664.  The critical question to be answered in the case at hand is whether it can be concluded that the shop floor adjudicating bodies erred in their interpretation of the facts of the matter leading to the conclusion that the appellant was guilty and had to be relieved of his duties.

In his oral address before the court the appellant harped more on issues to do with the charges. His argument was that the charges were not properly formulated if regard was to be had to the charge sheet and the determination of his matter.  It is important to observe that issues to do with the formulation of the charge are review issues which could not be raised in an appeal. See Labour Act for the separate processes of appeal and review.

Going back to the facts it is not contested that on the single day in question appellant had more than a single explanation of why he had a shortage and an overage.  He stated that he had forgotten that he had given change of $50 to one Nyasha a fellow workmate.  He also stated that on the same day he had given a customer $5,00 change instead of $2,50. Further to that he stated that he had given a customer $180 instead of $130 as cash back.  Finally it was his defence that there was a system error that day and same accounted for the final overage which he had at the end of the day.

It is settled that guilt in labour matter only has to be proven on a balance of probabilities not beyond reasonable doubt See ZESA v Dera SC-79-98. Applying this test to the facts of the matter at hand it is clear from the various stories of how the overage and the shortfalls were accounted for that they all spoke to unsatisfactory performance by the appellant.   The court is therefore not persuaded that there is anything on the record which shows that the trier of fact exercised its jurisdiction unreasonably.

In the result the court is satisfied that the appeal is lacking in merit.  It should accordingly fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed. Each party to bear own costs.

Wintertons.  Respondent’s Legal Practitioners