Bespoke Food & Beverages (Pvt) Ltd v Misheck Muraisi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/730/14
HELD AT HARARE 20TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/730/14

HELD AT HARARE 20TH OCTOBER 2014		CASE NO LC/H/318/14

& 24TH OCTOBER 2014

In the matter between:-

BESPOKE FOOD & BEVERAGES (PVT) LTD			Appellant

And

MISHECK MURAISI						Respondent

Before The Honourable L.M. Murasi, Judge

For Appellant		Mr C Shoriwa (Human Resources Manager)

For Respondent		Mr M Musokere (Trade Unionist)

MURASI, J:

Respondent was employed by the appellant as a barman.  The allegations are that the respondent included a fake USD100.00 note in his daily takings which led to a disciplinary hearing.  The disciplinary hearing recommended his dismissal.  The matter was referred to conciliation and finally to arbitration.  The Arbitrator found in favour of the respondent.

Appellant is dissatisfied with the arbitral award and has appealed to this Court.

Appellant’s grounds of appeal are couched as follows:

The arbitrator grossly erred at law by failing to consider substantive evidence given and not disputed by the respondent before the tribunal.

The arbitrating authority erred at law by failing to consider that the case was dealt with in compliance with the provisions of the Code of Conduct and that it was not only the respondent in this matter and that the respondent was entitled to the same immunity as others.

The arbitrating authority erred at law by wholly avoiding the case based on assumption not on the legal interpretation of the Code of Conduct.

The arbitrator erred and misdirected herself at law by disregarding applicant’s (appellant) averment not in terms of the law.

In his submissions, appellant’s representative stated that the Arbitrator had

ignored the evidence that was placed before him.  It further argued that the respondent’s supervisor had been dismissed for the offence and it would be inequitable to deal with the respondent differently.  It was further submitted that the Arbitrator failed to correctly interpret the provisions of the Code of Conduct.

In response, respondent’s representative submitted that the Arbitrator correctly found in respondent’s favour as there was no evidence adduced  to convict him.  It was further stated that the facts of the matter did not show that it was respondent who had placed the fake note in the day’s takings.  It was argued that the supervisor, having certified the takings as being correct, was the one who should be held responsible.

It is trite that for an appellate court to overturn a decision of a lower tribunal or court, there should be evidence of a gross misdirection.  (See Innscor Africa (Pvt) Ltd v Letron Chimoto S 6/2012).  The Arbitrator made the following findings:

“It would be misleading to conclude that the applicant was the one who put the fake

hundred dollar note in the envelope or that he did not use the fake money detector.  No any evidence was produced to indicate that they had connived in the deal with the applicant and that the acting supervisor was dismissed on the same grounds.”

And further,

“Three people were involved in the cashing up of cash that is the barman, the supervisor and the General Manager and it is difficult in this matter to penalise the barman for the charged offences.”

It was the Arbitrator’s view that no evidence was adduced to show that

it was the respondent who was responsible for this.  The Court inquired from appellant’s representative whether any other evidence, apart from the written submissions had been placed before the Arbitrator.   He replied in the negative.  He submitted that appellant had merely “expanded”, on the submissions which placed the onus on the respondent to prove that he was innocent.  Appellant was  obviously suffering from a misconception of the law.  Appellant, had the onus to prove respondent’s guilt on a balance of probabilities.  It was not for the respondent to prove his innocence.

A reading of the facts shows that it was the supervisor who certified that the daily takings were correct.  It was the supervisor who went with those takings to the General Manager’s office.  It has been argued that the respondent should have accompanied the supervisor as was the norm.  This does not in any way take away the fact that the supervisor had already signed the documents giving respondent’s daily takings a clean bill of health.  It was for appellant to prove that it was respondent who was responsible for putting the fake note into the daily takings.  The following comments by DAVIES AJA in Rev v M 1946 AD 1023 at 1027 are apposite:

“And I repeat , the court does not have to believe the defence story, still less has it to believe it in all its details, it is sufficient if it thinks that there is reasonable possibility that it may be substantially true.”

In casu, respondent’s story, in the absence of evidence to the contrary was believed by the Arbitrator who stated that it would be wrong to point a finger at the respondent when there were other possible culprits. Further, the onus  did not rest on respondent to prove his innocence.

This brings me to the issue of circumstantial evidence.  Circumstantial evidence may be described as that evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a fact in dispute.  It is that set of facts or events which, if put together, will lead to a compelling conclusion.  Further the set of facts or events should lead in one direction and leave no doubt in a reasonable mind about what they portray.  (See R v Sibanda 1965 RLR 363).  In casu, it cannot be said that the set of facts and events lead to the inescapable conclusion that it was respondent who was responsible for having the fake note in that day’s takings.  This is supported by the fact that the supervisor indicated that she was satisfied with the money she was handed over by respondent, by signing.  Further, it was the supervisor who single-handedly went with the money to the General Manager’s office.  It is not known, as no evidence was led in this respect, as to who was present when the General Manager “opened” the envelope.  Without casting aspersions on the General Manager, it is not too far – fetched to state that any one of them could have been responsible for the fake note.  This view is arrived at because no evidence was placed before the Arbitrator to discount the possibility.  This is why the Arbitrator pointed out that as three (3) people were involved, it was not proper to hold the respondent responsible.

The Court is of the view that appellant has been unable to demonstrate in what manner the Arbitrator misdirected herself.  As conceded by appellant’s representative, no evidence was adduced before her to prove on a balance of probabilities that he was guilty of the offence preferred against him.

In conclusion, the Court finds that the appeal is devoid of merit and should be dismissed.  The Court makes the following order:

The appeal be and is hereby dismissed.

The award of Arbitrator P.N. Dizha dated 31 March 2014 be and is hereby upheld.

That there be no order as to costs.