Faston Mangezi v Delta Beverages (Private) Limited

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/94/2024
ZIMBABWE HARARE, 15 JANUARY, 2024
CASE NO LC/H/161/21
7 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 15 JANUARY, 2024

JUDGMENT NO LC/H/94/2024 CASE NO LC/H/161/21

7 MARCH 2024

FASTON MANGEZI	APPELLANT DELTA BEVERAGES (PRIVATE) LIMITED	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- Mr A.T. Nhidza, Unionist

For Respondent	- Mr K. Ncube, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of section 92D of the Labour Act [Chapter 28:01]. The grounds of appeal were initially quadruple. Appellant then abandoned ground 1, 3 and 4 leaving only ground (2) two for determination. Ground (2) two is quoted thus as follows:

“Both the hearing officer and the appeals Committee failed to note and casted a blind eye on the contradictions between the charge sheet at the loss controllers report and the subsequent apologies by the loss controllers thereof. In the circumstances the hearing officer and the appeals committee failed to note that charges laid against the accused were based on falsehoods.”

In response, the Respondent stipulated that,

“There were no contradictions between the charge sheet and the loss controller’s report. The evidence was overwhelming against the Appellant. The findings of fact by the immediate superior, the head of department and the works council in this regard cannot be set aside merely because the Appellant believes they are wrong. The Appellant should show that they amount to an error of law which entitles this appeal to succeed…   ”

The Appellant indicated that there were some inconsistences in the charge sheet and the loss control report. The Charge sheet lays out charges that were laid against Respondent as follows:

The Charge

You are employed as a stock controller at Chipinge DBC

On the 9th of March, you drove out of the DBC with an omni bus loaded with 8 cases of black label quarts and 4 cases of castle quarts.

You drove out of DBC with the said stock without an invoice or proof of payment for the product you were carrying.

The total value of stolen products RTGS $352.68.

The loss control report

The investigation was limited to circumstances surrounding the alleged stock of 12 crates of lager beer that occurred at Chipinge DBC on 9th March 2019. The findings of the loss control report where quoted as follows

On the 11th day of March 2019, the Deport overseer Andrew Mashiri received information from Johannes Muyambo the Stock Controller that there was a stock loss of 8 crates castle quarts and 4 crates of carling black label quarts.

Sock Controller Johannes Muyambo established the above variance after reconciliation of the punched nostro invoices against the available collection

The Depot overseer instructed the security guards and stock controllers to carry out an investigation on the stock loss.

An investigation was done and Mr Mashiri engaged Mr Mandonga (F&A Supervisor) for a charge amounting to $225.32 to be passed to the parties involved, which was paid for and a receipt for the payment was raised.

On 11 March 2019, Tapiwa Makufa the Trust Me security guard did a further investigation against the issue and got the information that Faston Manegezi took the missing crates on Saturday the 9th of March 2019 without an invoice and returned back with empties and put them in the ware house.

Faston Mangezi admitted to have used salesman Admore Nyamayanhu’s kombi to ferry the missing 12 crates for an unknown customer to Chipinge bus rank where it was loaded into another kombi purportedly destined for Checheche.

Admore Nyamayevhu the salesman driver admitted to have received phone calls from many Nostro Account customers and referred them to Faston Mangezi for assistance but he is not aware of what transpired later after his departure from the deport.

It was established that Faston Mangezi used Admore Nyamayevu’s combi a Nissan to ferry unpaid for 12 crates of larger beer out of the deport.

The 8 crates of castle quarts and 4 crates of black label quarts were taken out by Faston Mangezi without an invoice and without payment for the product.

Faston Mangezi returned 12 crates of empties and never paid for the product.

Security guards dispatched the 8 crates castle quarts and 4 crates of carling black label quarts without getting proof of payment and the actions are in variance to the dictates of security site instructions.

Security guards never recorded the particulars of Faston Mangezi the product and the vehicle at the exit gate.

Analysis

The Court went through the misconduct charge, loss control report and determinations & minutes of hearings by and before the Immediate Superior, Head of Department and Works Council. The documents shows that Faston Mangezi did steal the 12 crates of beer. Several witnesses were called and witnessed same that Faston Mangezi did take the beer without an invoice. This is established by the fact that he ferried beer out of the depot without an invoice. This goes against his designation as a stock controller he is supposed to act with due diligence.

In Zvokusekwa vs Bikita Rural District Coucil SC 44/15, it was held

“ it is correct in RBZ VS Granger and Another (supra), this court stated that if an appeal is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied hismind to the facts would have arrived at the decision. And a misdirection of fact is either a failure to appreciate facts at all or a finding of fact that is contrary to the evidencethat is acually presented.”

The evidence presented in the loss control report points out to the fact that Faston Mangezi did exit the deport without furnishing an invoice to the security guards which amounts to theft indeed as no beer was accounted for. The alleged variance between the loss control report and the charge are immaterial. The workplace tribunals correctly returned and upheld the guilty verdict.

CONCLUSION

All in all, this Court concludes that the appeal lacks merit and ought to be dismissed.

Wherefore it is ordered that

The Appeal be and is hereby dismissed

Each party shall bear its own cots

G. MUSARIRI J-U-D-G-E