Estate Late Ishmael Chamisa v Unifreight Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/433/2014
HARARE, 10 JUNE 2014
JUDGMENT NO. LC/H/433/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/433/2014

HARARE, 10 JUNE 2014    		                           CASE NO. LC/H/73/11

AND 18 JULY 2014

In the matter between:-

ESTATE LATE ISHMAEL CHAMISA			Appellant

And

UNIFREIGHT LIMITED					Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	P. Phillips (Legal Practitioner)

For Respondent		-	P. Chiwetu (Legal Practitioner)

MUZOFA J:

Before the matter was finalized the appellant passed on. An application was made and granted to cite the parties as Estate Late Ishmael Chamisa being represented by the executrix Audrey Chamisa.

This matter comes as an appeal against respondent’s decision to dismiss the appellant.  The background to this case is as follows.  The appellant was employed by the respondent as a cash collections supervisor.  The appellant’s duties included receiving authorised petty cash vouchers after checking them he would make payments.  He was the custodian of the petty cash register and was the only person with access to the cash office.  On 17 November 2010 one Katsande a manager with the respondent conducted a check of the casual labour wages register and the petty cash book.  He discovered that entries in the two books did not tally.  An entry for $500 was entered as $300, and an entry for $800 was entered as $500.  Appellant was the custodian of the petty cash book, and one Magaisa was the custodian of the casual labour wages register.  What this meant was that in keeping up with principles of accountability Magaisa would present a voucher for payment of casual labour with the total required.  The voucher would have been authorised.  It was a principle that cancelled or amended vouchers are not cashed.   Magaisa would present the voucher to appellant who would give Magaisa the amount on the voucher.  In essence what Magaisa would indicate as paid out in his casual labour wages register was supposed to tally with the request on the voucher and what appellant would have paid out as indicated in his petty cash book.  On this day after realizing the anomaly Katsande summoned the two, appellant and Magaisa.  Both were adamant that they properly executed their duties.

Magaisa however indicated that the voucher indicating $800 was infact presented to appellant as $300.  In essence the appellant had altered the voucher presented by Magaisa for $300 to read $800.

With those facts the appellant was charged and discharged from employment.  An internal appeal was made unsuccessfully.  Thereafter an appeal to this court was made on the following grounds;

That there was inadequate evidence to found a conclusion that appellant was liable.

That the penalty of dismissal was harsh in the circumstances.

The evidence

Counsel for the appellant in the heads of argument did not address the issue on the adequacy of evidence against the appellant.  Instead in the submissions the Court was urged to make an order for the payment of damages since the appellant is now deceased and reinstatement was no longer possible.  The first hurdle that appellant had to surmount was whether there was a proper conviction.  No attempt was made in that direction.  In any event in my view there was enough evidence to find appellant liable in this case.  For the appellant it was raised that the appellant was discharged by a criminal court.  The proceedings in a criminal court and the labour court are separate.  This is so because the standard of proof is different.  In a criminal case the requirement is proof beyond a reasonable doubt yet in

employment matters proof on a balance of balance is required see ZESA v Dera 1998 (1) ZLR 500 (SC).  The factual basis of this case is largely not disputed.  The only issue is who altered the figures.  Appellant admitted that he was the custodian of the petty cash book and that he would not cash an unsigned or altered voucher.  So on this day there is no way he could have cashed the altered voucher.  The only

inference to be drawn is that he received an unaltered voucher of $300 and he altered it.

In dealing with circumstancial evidence the court has to only accept the more plausible explanation of the many explanations presented to it see Ebrahim  v Pittman No. 1995 (1) ZLR 176 (HC).   I donot believe the appellant’s version.  There was evidence on a balance of probabilities to warrant a verdict of guilty.  This ground of appeal has no merit and is dismissed.

Penalty.

It is a trite principle of our law that where an employer is of the view that the employee’s misconduct goes to the root of the employer – employee relationship an employer is entitled to dismiss the employee, Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/08.    The charge that appellant was found liable for involved dishonesty, tampering with vouchers.  Appellant occupied a position of trust handling respondent’s petty cash.  Appellant was therefore called upon to exhibit highest levels of honesty.  An employer employee relationship is always based on trust.  Where the trust has been breached it is not expected that the employer should continue to trust the employee involved.  It has not been shown that the respondent failed to exercise its discretion judiciously on this aspect.  This ground of appeal also has no merit and is therefore dismissed.

From the foregoing clearly this appeal has no merit, accordingly the following order is made.

The appeal be and is hereby dismissed.

There is no order as to costs.

SCANLEN & HOLDERNESS, Appellant’s legal practitioners

GWAUNZA & PARTNERS, Respondent’s legal practitioners