Cotton Company of Zimbabwe vs Lust Gomo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/482/2014
HARARE, 9 JULY 2014
CASE NO LC/H/779/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/482/2014

HARARE, 9 JULY 2014 &			       CASE NO LC/H/779/2013

1ST AUGUST 2014

In the matter between:

COTTON COMPANY OF ZIMBABWE				APPELLANT

Versus

LUST GOMO							RESPONDENT

Before The Honourable B S Chidziva	:	Judge

For the Appellant		T Maanda	(Legal Practitioner)

The Respondent in Person

CHIDZIVA J:

This is an appeal against the decision of the National Employment Council for the Cotton Industry (“NEC”) which was issued on 5 September 2013. The operative part of the findings state as follows:

“In view of the above, we have reached to a conclusion that the dismissal of the claimant was a serious selective application of the law. Furthermore, the findings of the disciplinary committee found him guilty of an offence which he was not charged with. He was charged with selling diesel without authority but was found guilty of not notifying management of the fraudulent activities on diesel transactions.

After careful consideration of the submissions and the facts of the matter, the claimant’s appeal succeeds. The claimant is hereby reinstated with full salary and benefits.”

The brief history of this matter is that the respondent was employed as a Senior Accounts Clerk based at Mutawatawa Depot. His duties involved overseeing the stores section at the Depot. In March 2013 the appellant received information to the effect that the respondent was selling the appellant’s diesel to the public without the appellant’s management authority. In April 2013 the respondent was charged with gross misconduct. He was found guilty and dismissed from employment with effect from 11 April 2013.

The respondent then appealed against the Disciplinary Committee’s decision to the National Employment Council for the Cotton Industry. The Council decided in his favour and it is this decision that the appellant is appealing against.

The grounds of appeal are as follows:

The NEC Appeals Committee erred in determining that the respondent was found guilty of a different charge. The respondent was charged with gross misconduct, it being alleged that he failed to control the abuse of fuel or to inform management about the abuse. This is the charge the respondent was found guilty of.

The NEC Appeals Committee erred in determining that there was selective application of law and as such, the respondent should be reinstated. It was not shown that the employees were charged of the same offence. The committee also failed to appreciate that at law, the employer has a discretion of whom to charge.

The NEC Appeals Committee failed to appreciate that the respondent was properly found guilty and dismissal was appropriate sanction.

It is on these grounds that the appellant prayed that the decision of the Disciplinary Committee to dismiss the respondent should be confirmed.

The respondent in response told the court that:

The respondent was found guilty of a different charge.

No notification was served on the respondent stating the nature of the offence.

There was selective application of the law because the Area Manager, Crop Procurement Officer and the Stores Clerk who were involved in the scam escaped with a warning.

It is common cause that the respondent was charged with gross misconduct and he was dismissed from employment. It is also common cause that the appellant was employed as a Senior Accounts Clerk and he was in-charge of the stores section. During the term of the respondent’s office there was unauthorised sale of diesel or swopping of same for petrol. The Area Manager, Crop Procurement Officer and Stores Clerk were also charged but they were not dismissed from employment.

What is to be decided is whether:

The matter is improperly before this court for failure to serve the notice of appeal on the respondent.

There was selective application of law.

The respondent filed his response thereby showing that he had access to the notice of appeal. It has been a trite principle of law that labour matters should not be decided on technicalities. This matter can therefore not be dismissed for such a small technicality where the respondent has already responded.

The respondent was convicted of gross misconduct. He failed to carry out his duties properly and this could have resulted in great losses on the part of the appellant. The correct position is that the employer has the discretion on who should be charged. In this case all these employees were charged with “Gross Misconduct” which calls for dismissal. It is not clear whether the other employees were charged with the same offence. McNALLY JA in Lanchshire Steel (P vt) Ltd v Elijah Zvidzi Maedevana & Ors SC-29-95 at page 6 had this to say about selective application of law:

“Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punishment but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not in law relevant that others may also have been guilty.”

In this case the appellant was guilty of “Gross Misconduct” however this court does not know what the other employees were found guilty of and the mitigatory factors that they presented before the Disciplinary Committee.

In the light of the foregoing this court orders that:

The appeal be and is hereby allowed.

The decision of the Disciplinary Committee to dismiss the respondent be and is hereby confirmed.

Maunga Maanda & Associates, appellant’s legal practitioners