Enock Kohwai v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/156/2020
HARARE, 16 JUNE 2020
CASE NO. LC/H/276/18
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/156/2020

HARARE, 16 JUNE 2020		      		 CASE NO. LC/H/276/18

AND 17 JULY 2020

ENOCK KOHWAI		 				APPELLANT

DELTA BEVERAGES (PVT) LTD				RESPONDENT

Before Honourable G. Musariri, Judge

For Appellant			- Mr ST Mutema, Attorney

For Respondent			- Mr K Ncube, Attorney

MUSARIRI, J:

Appellant worked for Respondent as the Packaging Unit Manager based in Harare.  He was found guilty of misconduct and was dismissed from employment.  He appealed against the dismissal to Respondent’s Appeal Officer who turned down the appeal.  Appellant then appealed to this Court.  Respondent opposed the appeal.

The grounds of appeal were four-fold.  The first ground alleged violation of “audi alteram partem principles”. It was averred that Appellant was convicted of an offence which was not charged.  The complaint dealt with matters of procedure as opposed to substantive matters on the merits.  I consider that such procedural issues cannot found a ground of appeal.  Rather they might constitute grounds for review.  Having chosen to proceed by way of an appeal in this matter, Appellant cannot

smuggle in review issues.  Thus I dismiss the “1st ground of appeal”.  The remaining grounds of appeal declaimed thus,

“2. Having found that the Appellant did not act in breach of the implied terms of his contract by signing authorisation of sale of layer boards, the appeals authority grossly misdirected itself in facts by concluding that the appellant contravened section 4(a) of S.I 15/2006.

3. The appeals authority grossly misdirected itself in facts by concluding that Appellant failed to account for 16, 594 layer boards when it is apparent that the same were sold by the disposal committee.  At any rate, having found the disposal was done by a disposal committee to which Appellant was not a part, the3 authority wrongly and grossly so attributed the alleged discrepancy to the Appellant when it had found that the illegalities were committed by the disposal Committee.

4. The appeals authority erred in law by concluding the Appellant breached section 4(a) of the SI 15 OF 2015 when the documents in which the alleged breach were contained were never served notwithstanding having been requested.  Thus no evidence was placed before it to sustain the charges.”

It is apparent that the 2nd and 4th grounds deal with the same issue of breach of the implied terms of the employment contact.  The 3rd ground deals with the role of the disposal committee.

I consider that the matter was fully and fairly dealt with by the Disciplinary Authority’s determination dated the 8th August 2018.  A copy thereof is filed of record.  Its verdict is what was upheld by the Appeals Officer Under the subtitle “Findings” it stated that,

“It was found that indeed you had been part for the formation of a disposal committee on Line 3.  Being the Unit Manager of this line, you were aware that the company SOPs do not allow of such an illegal Committee.  It was also found that the purchase of layer boards was so systematic to the extent of purchases of more than $1 000 at a single purchase.  Funding of such purchases remained a question only you could answer.  Your claim that this could be funded by would –be buyers only exacerbated your failure to reveal the truth as it was established that the purchases were tactfully orchestrated.

Pursuance of an investigation of the theft of 29 March 2018 indicated that a profit of more than $1-50 per layer board was being achieved leading to profits of more than $20, 000 per month.  One could not find a plansible explanation on why a Manager of your level would perpetrate an illegal scum (sic) of such magnitude.  It was proven that the highest amount that had been shared to staff was not more than $1, 000 in a given month and one wonders where the rest would have gone”

This excerpt reveals a number of significant things.  Appellant was the head honcho as the Unit Manager in the line where the layer boards were being sold.  He was aware of the sales hence his claim that the sales were funded by would-be buyers.  A lot of money was realised from the sales.  A figure of $20.000 per month is mentioned.  A small amount was shared amongst the staff.  There is no record or account of the bigger portion of the proceeds.  A lot of layer boards disappeared.   Appellant as the Manager was unable to account for the boards.  Same belonged to his employer but were under his control.  He sought to escape liability by shifting blame to a disposal committee.  Such Committee was not sanctioned by higher authority.  If anything the committee was likely set up with Appellant’s knowledge.  It was the Appellant’s duty to ensure that his employer’s assets were properly accounted for.  Talk of a disposal committee was just a red herring meant to deflect attention from Appellant’s culpability.

In the circumstances I consider that the Appeals Officer was correct in upholding the verdict of the Disciplinary Authority.  It is therefore follows that the appeal against the Appeals Officer’s ruling lacks merit and ought to be dismissed.

Wherefore it is ordered that;

The appeal be and is hereby dismissed; and

Each party to bear its own costs.

G MUSARIRI

J-U-D-G-E