Edmore Chagwiza v Colbro Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/39/2013
HELD IN HARARE, FEBRUARY 12, 2013
CASE NO. LC/H/240/12
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/39/2013

HELD IN HARARE, FEBRUARY 12, 2013		CASE NO. LC/H/240/12

In the Matter Between

EDMORE CHAGWIZA				       	APPELLANT

And

COLBRO TRANSPORT				       	RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: Mr C. Chigwada (Trade Unionist)

FOR THE RESPONDENT  	: Mr W.D. Mushoriwa (H. R. Manager)

MAKAMURE E.,

The appellant was employed by the respondent.  He worked in an area called the “tool room.”  He was charged with and convicted for theft.

The facts which are not disputed are that the appellant was found to have kept some 9 litres of engine oil and 2 litres of ATF oil in the tool room.  The said oil was not kept in the open but was hidden behind a cabinet in that tool room.  When the workshop manager who discovered the oil asked the appellant about the hidden oil, the appellant had no immediate answer.  When the appellant was asked to submit a report about the oil he stated that he had collected the said oil from leaking containers.  When disciplinary proceedings were conducted against him, the appellant told the disciplinary the panel that the oil which was found in the tool room was contaminated oil.  The workshop foreman however told the hearing panel that the oil in question was clean oil.  When the matter was argued before this Court, Mr Chigwada who appeared on behalf of the appellant drew the Court’s attention to the definition of theft in terms of the applicable collective bargaining agreement.  Mr Chigwada also argued that the oil in question was contaminated and therefore useless.

The Collective Bargaining Agreement: Transport Operating Industry Statutory Instrument 94 of 1995 defines theft as follows:

“38. 	Stealing theft.

An employee steals if he dishonestly takes property belonging to the employer or another employee with the intention of permanently keeping the thing taken or to dispose of it as his/her own.”

Looking at the facts of this case, it is clear firstly that the appellant kept the oil in question hidden.  Secondly, he had no explanation for hiding the oil which was still good for use.  Thirdly, he gave contradicting explanations regarding the same oil.  Fourthly, the defence proffered on behalf of the appellant in Court, that is that the oil was contaminated cannot stand in view of the proved facts.  The sum total  of the conduct and of the defence of the appellant amounts to dishonesty.  Appellant did not have to lie that the oil was contaminated when in fact it was found to be clean.  What this shows is that the appellant must have intended to keep the oil as his own.  This means that the essential elements of theft as defined in the Collective Bargaining Agreement were satisfied.  There was no error at all by the earlier tribunals.

The appeal has no merit and it must fail.

Accordingly, it is ordered that the appeal be and is hereby dismissed.

Transport and General Workers Union, Representative for the Appellant.

Human Resources Department of the Respondent, Representative for the Respondent.