Brian Chihuri v Colcom Foods Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/233/16
HELD AT HARARE 4 MARCH 2016
CASE NO
JUDGMENT NO LC/H/233/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/233/16

HELD AT HARARE 4 MARCH 2016				CASE NO LC/H/538/15

& 13 MAY 2016

In the matter between:

BRIAN CHIHURI				Appellant

And

COLCOM FOODS LTD				Respondent

Before The Honourable L Hove, Judge

Appellant			In person

For Respondent		Ms A Mapanzure (Legal Practitioner)

HOVE, J:

The appellant was employed by the respondent at all material times.  He was a supervisor at one of the respondent’s outlet.

He is alleged to have taken the respondent’s meat from the shop without paying for it and instructed one of his subordinates to braai the meat.

Disciplinary charges were raised in relation to the taking of the meat without paying for it and he was found guilty and dismissed.

These proceedings are an appeal against the conviction.

He raises 6 grounds of appeal three of which have been challenged for raising issues for review and not appeal.  These are grounds number 1, 2 and 5.

Ground number 1 relates to the fact that the respondent’s appeal hearing committee was not properly constituted.  Ground number 2 challenges the managing director’s conduct in that he underplayed the disciplinary committee’s role.  The fifth ground of appeal alleges that the respondent failed to make the code of conduct accessible to the appellant.

All the three issues are not seeking to challenge the substantiate corrections of the decision being appealed against but are merely concerned with the decision making process.  In such issues one approaches the court in an application for review and not in an appeal.  See Muringi v Air Zimbabwe 1997 (2) ZLR 488.

The respondent conceded that these three grounds raised review issues and they were struck off by the court.

That leaves the court with three grounds vis ground number 3, 4 and 6.

The facts were that the appellant took the meat, did not pay for the meat and gave it to someone to braai.  The appellant argues that the disciplinary committee did not verify the facts properly.  He alleges that he bought the meat properly but when he wanted to pay for the meat, some other business called, he had to go and do banking.  As he was banking the manager came and found the meat being braaied but there was no receipt to prove that the meat had been properly purchased.  He later wanted to pay for the meat after doing his banking business but he no longer had the money as he had given all the money to the banker, so he was unable to pay.

All these are factual issues that are best dealt with by the tribunal a quo.  The Labour Court cannot easily interfere with findings of fact of the tribunal a quo .

This court can only interfere if it is satisfied that the earlier tribunal’s findings of facts were grossly unreasonable, capricious and mala fide.

See Coh-coh Enterprises (Pvt) Ltd v Mativenga & Anor SC 30/01 also Tirivangana v University of ZimbabweSC 21/13.

The facts show that the appellant took meat, did not pay for it and only attempted to pay for it after his manager had already queried how the meat was being braaied when there was nothing to prove that it had been properly purchased.  His attempts to explain about prioritising banking cannot assist him because the purchasing procedures do not allow for one to take meat, instruct someone to braai and go off to do banking.  I agree with the respondent’s representative that he breached the purchasing procedures.

The appellant argues that he was charged with theft but was dismissed for contravening section 24 of the code i.e. non-compliance with the purchasing procedures.  That was an irregularity see the case of Standard Chartered Bank v Matsika 1997 (2) ZLR 389 (S).

It was held that the penalty must be consistent with the charge, an employee cannot be charged of offence A and be convicted of offence B.

It is however also a principle of our law that a procedural irregularity cannot vitiate proceedings when it caused no prejudice.

The record will show that the appellant had pleaded guilty to theft following his non-compliance with established procedures when he took meat from stock without paying for it and ordered his subordinates to braai it.

It would be unjust to allow this irregularity to vitiate proceedings when the facts clearly show that the offence was committed.  This court is mandated to secure the just effective and expeditious resolution of disputes.  See section 2 A.

In any event, even if the disciplinary committee did err in charging him of theft and finding him guilty of failure to follow procedures, the court has the authority to grant an equitable decision.  No point would be served by remitting the matter back to the disciplinary committee when it is evident that the appellant did flout the procedures when he took the meat without paying for it and instructed that if be braaied.  See in this regard the case of Kambuzuma & Others v Athol Evans Hospital SC 118/04 where the court held as follows;

“In the circumstances it seems to me that, bearing in mind that the home did not have power to dismiss the workers that the dismissal of the workers was entirely justified, and that no useful purpose could be served by any delay in the finalisation of the dispute between the parties, this is an appropriate case in which this court should exercise the power it has in terms of Section 22 (1) (b) IX of the Supreme Court Act [Chapter 7:13] and dismiss the appeal.”

The dismissal in this case was entirely justified and no useful purpose could be served by any delay in the finalization of the matter.  Like in the Kambuzuma case (supra) the appeal must be dismissed.

The labour Court is not acting in terms of the Supreme Court Act but it is exercising its equitable jurisdiction.

Ground number 3 can therefore not be sustained.  The appellant alleges that he was not given the chance to mitigate.  This cannot be sustained as the minutes clearly show that he did make submissions in mitigation.  The appellant also had another opportunity to submit in mitigation before the Appeals Committee.  The appellant submitted in mitigation before the hearing committee.

“Whilst I admit having erred I would like to bring to your attention some of the sacrifices that I have done during my time, …”

And before the appeal committee he submitted the following

“… insisted that this committee find it worthy that his actions were in good faith .. and also pleaded that his record had been stunning well before this incident.”

As a result, there is no basis to allege that he did not mitigate.

The last ground of appeal is not a proper ground of appeal.  It does not set out.  Clearly and specifically the basis for appeal.  That which the appellant is attacking in the judgment must be clearly set out in a ground of appeal.  A generalization such as that set out in the appellant’s last ground of appeal is not good enough.  It does not point out were the appeals committee erred.  See the case of S v McNaB 1986 (2) ZLR 280.

It is therefore clear that all of the appellant’s grounds of appeal lack merit.  The record shows that appellant was pleading guilty to the allegation of theft in that he took the meat away without following the proper purchasing procedure.

In any event I am not convinced that there is any basis for me to interfere with the factual findings of the tribunal a quo.  There has not been demonstrated any gross irrationality warranting my interference with the findings of facts.

In the result, the appeal is dismissed.

Each party will bear its own costs.

Chinawa Law Chambers, respondent’s legal practitioners