Charlton Mapayi v Unifreight Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/156/2014
HARARE, 13 MAY 2013 & 28 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/156/2014

HARARE, 13 MAY 2013 & 28 MARCH 2014	               CASE NO. LC/H/419/10

In the matter between:-

CHARLTON MAPAYI				  Appellant

And

UNIFREIGHT LTD				   	   Respondent

Before Honourable Chidziva, Judge

For Appellant		Mr. T. Machiridza (Legal Practitioner)

For Respondent		Ms P. Chiwetu (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the disciplinary hearing committee.  The grounds of appeal are that:

No proper charge has been laid against the appellant.

The Appellant was barred from getting legal representation of his own choice in breach of law.

The disciplinary hearing committee’s finding that he committed fraud was wrong at law since the company was never prejudiced financially.

The disciplinary hearing committee’s findings that the Appellant misappropriated funds was wrong at law since that money was there and was handed over to the responsible authorities.

The disciplinary hearing’s findings that the Appellant did not report the challenges he was facing in order to locate the client is wrong since senior managers were informed.

The sentence imposed by the disciplinary hearing committee is too harsh since the Appellant was a first offender.

Whereof Appellant prays for US$20 000,00 for damages in lieu of reinstatement.

The respondent in response told the court that;

There was a competent charge.  After the audit the client had not been entertained.  In two (2) months he could not have failed to deal with the client because he had a personal car, phone and e-mail to locate the customer.

The Code of Conduct states who can represent the appellant.  He was granted the right to be heard but he indicated that he was comfortable for the matter to be heard without legal representation.

The panel was not compromised because half (½) of the panel voted to keep the appellant at work.

Dishonesty is a serious offence which brings lack of trust between the employer and employee.

The Appeal should be dismissed with costs.

The brief background of the matter is that the appellant was employed as a Regional Sales Manager by the Respondent.  The appellant was charged for committing an offence or attempting an act of dishonesty against the company by misappropriating US$136,00 of the company funds.  It is alleged that on the 17th of December 2009 the appellant requested $136,00 for the purposes of entertaining a PSI customer during the festive season.  The appellant did not entertain the customer and this was unearthed on the 12th of February 2010 during an audit check.  The Appellant was suspended and charged under Part III Section 3:3:5 (ix) as read with section 7.4.5 that is misappropriation.

“Applying or attempting to apply to a wrong use for unauthorized purpose any funds assets on property belonging to the company or customers, money collected for the payments of freight charges.”

This offence calls for summary dismissal hence the appellant’s dismissal after a disciplinary hearing.

It is common cause that;

Appellant was given US $136,00 by the Respondent on the 17th of December 2009 for the purpose of entertaining a PSI  CUSTOMER.

When audit was carried out on the 17th December 2009 it was found that appellant had not used the money as required.

What is to be decided is whether the appellant was lawfully dismissed or not.

The appellant did not use the money for (2) two full months.  This was only discovered during an audit check which was conducted well after the festive season.  Given the facilities he had that is; the personal car, e-mail and telephone he should have located the customers within a reasonable time. This failure to discharge his duties within a reasonable time clearly showed a high degree of dishonesty on the appellant’s part.  The offence that the appellant was charged with calls for summay dismissal.  The sentence was therefore appropriate in the circumstances.  The appellant told the court that he was barred from getting legal representation during the disciplinary proceedings.  However the minutes of the 19th of February 2010 clearly state that;

“The Chairman of the disciplinary committee welcomed Mr. Mapayi to the meeting and also asked him why he did not have his own representative in the meeting which he explained that all the managerial employees he had requested to represent him had turned him down through fear.  He further explained that he had sought the services of lawyer but that service could not go ahead as he was advised that the Unifreight  Code did not permit legal representation at this stage but he was however comfortable proceeding without any representation.”

The Code shows that appellant could only be represented by a fellow managerial employee not by the Worker’s Committee.  In the case of MINERALS MARKETING CORPORATION OF ZIMBABWE vs MAZVIMAVI 1995 (2) ZLR 355 it was stated that;

“Where a disciplinary code governing the conduct of employees, the right to be represented at an inquiry depends on the provisions of the Code of Conduct itself.  The Act requires that a Code of Conduct must grant a right to be heard and the corporations Code of Conduct provided for representations by the Worker’s Committee.  As no mention was made in the Code of legal representation no right to representation other than by the Worker’s Committee was intended to be conferred.”

The Code clearly stated that a managerial employee can only be represented by a fellow managerial employee.  From the record of proceedings the managerial employees refused to represent the appellant.  In the circumstances therefore it cannot be said that appellant was barred from legal representation.  Even if he had been represented the fact remains that appellant failed to exercise his duties as required.

In the light of the foregoing all the issues that appellant has raised cannot stand.  It is the court’s view that the appeal lacks merit.  Accordingly,

IT IS ORDERED THAT

The appeal be and is hereby dismissed with costs.

Manase & Manase, Appellant’s legal practitioners

Gwaunza & Mapota, Respondent’s legal practitioners