Felix Dzvaro v BAK Logistics Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/298/24
HARARE, 24 OCTOBER, 2023
CASE NO. LC/H/449/23
AND 9 JULY, 2024
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO.LC/H/298/24

HARARE, 24th OCTOBER, 2023

CASE NO. LC/H/449/23

AND 9TH JULY, 2024

In the matter between:-

FELIX DZVAIRO

APPELLANT

V

BAK LOGISTICS PRIVATE LIMITED

RESPONDENT

Before the Honourable Chivizhe J

For Appellant: Mr. H. Gwanyanya (Legal Practitioner)
For Respondent: Mrs. T.R.L Matsika (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against the determination of the Respondent’s Appeals Authority which determination was handed down on the 19th of May 2023 and served on Appellant on the 23rd of May, 2023.

The material background facts to the matter are as follows. The Appellant was employed by the Respondent as a Loss Control Manager. On the 17th of April 2023 he was notified that, following a complaint by his immediate supervisor, the Respondent had reason to believe he had committed two acts of misconduct namely;

(i) Contravention of Section 4 (g) of Statutory Instrument 15 of 2006 i.e. habitual and substantial neglect of his/her duties

Or alternatively

(ii) Contravention of Section 4 (a) of Statutory Instrument 15 of 2006 i.e. any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of service.

The allegations were that on 23rd December, 2022 he had been tipped off by a Security Guard of a possible theft of customer property that was in the warehouse. The plan was to be executed by some of the employees. 1500 empty fertilizer bags belonging to a customer were indeed later stolen from the warehouse and were not recovered. The
 Respondent felt that Appellant in his position had failed to take any necessary measures to prevent or mitigate the loss. He had also failed to apprehend the thieves on the actual day of the theft. The Respondent also alleged that Appellant had failed to declare that the security guard had surrendered USD 40.00 to him which amount had been tendered to the guard as a bribe by the perpetrators of the crime. The Appellant had also failed to advise his supervisor who had only come to know of the theft incident from the Head of Supply Chain, Mr J. Mukarati.

The Appellant was notified to appear for a disciplinary hearing on 26 April, 2023. He did appear at the hearing with his representative. He pleaded not guilty. Evidence was led from witnesses. In his defence Appellant submitted that upon becoming aware of the plan to steal, he advised the Security Guard Supervisor, one, Shoriwa, to follow through with the plan and a trap would then be set up to apprehend the culprits upon exit. It was however unfortunate that Shoriwa on the day of execution went away without advising him. The truck carrying the stolen goods exited the company premises therefore without any holdup. The Appellant argued that the charge of habitual and substantial neglect of duty was not competent as there was no evidence of repeated failure to perform his duties over a period of time. The essential elements of the charge had thus not been proved. He also argued that the alternative charge of inconsistent action was not supported by any evidence. In regards to the specific allegations by Respondent, he submitted that he had put preventive measures to curb the theft, he had set a trap which was designed to catch the thieves red-handed. He had however been let down by Shoriwa who went away on the day without advising him. He further submitted that he had failed to notify his supervisor Partson of the incident as the same had travelled out of town, his phone was unavailable or there was poor network coverage. Partson was not on duty on the 24th, 25th and 26th of December, 2022. He submitted that before he could tell Partson after the holidays, Partson himself asked about the incident. His failure to notify his supervisor was therefore not deliberate.

Appellant also disputed that he had failed to take any action to bring the perpetrators to book. He submitted that instead he had carried out his own investigations following the theft by interrogating those involved in the loading and clearance of the stolen property. On the issue of failure to disclose the USD 40.00 handed over to him by the Security Guard to his supervisor Partson he submitted he had advised his supervisor on the 28th of December 2022. Appellant submitted that there was no evidence which could on a balance of probabilities show that he had acted inconsistent with the terms of his contract of employment. The Respondent conducted a fully-fledged hearing at which several witnesses were called and led evidence.

On 2 May, 2023 the Disciplinary Authority returned a guilty verdict on the charge of breach of Section 4 (a) of Labour (National Employment Code of Conduct). The Disciplinary Authority found Applicant not guilty on the charge of habitual and substantial negligence. They found that the first charge of habitual and substantial neglect of duty was unsubstantiated at the end of the hearing. Whilst it was established that the neglect of duty was substantial there was however no evidence/proof tendered to establish ‘habitual’ neglect of duty. Upon weighing mitigatory/aggravating factors the Disciplinary Authority imposed a penalty of dismissal from employment with effect from 8th of May, 2023. The Appellant was aggrieved and noted the present appeal. The appeal is premised on the following grounds of appeal;

**GROUNDS OF APPEAL**

1. The Respondent’s Appeals Authority erred at law in failing to find that the totality of the evidence led during the disciplinary hearing did not establish on a balance of probability that the Appellant was guilty of contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I 15/2006).

2. The Respondent’s Appeal Authority erred at law in failing to find that the dismissal penalty imposed was inappropriate regard being to the proven fact the alleged misconduct was committed inadvertently thereby not warranting a dismissal penalty.

In relief, Appellant prays, firstly, for the appeal to be allowed and secondly, for the decision of the Disciplinary Authority to be set aside and in its place an order for reinstatement without any loss of salary/benefits. In the event that reinstatement is no longer tenable he prays, in the alternative, for Respondent to pay him damages in lieu of reinstatement.

**POINT IN LIMINE**

The Respondent has taken a point *in limine* that the first ground of appeal is neither concise nor precise. The Appellant does not agree. He submits that the ground is competent. It is a trite position at law that grounds of appeal must be clearly set out to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the Respondent is to meet. Anything that falls short of that is improperly before the court. This position was established in **Econet Wireless (Pvt) Ltd V Trustco Mobile (Proprietary) Ltd & Anor SC 43/13**. In terms of **Rule 19(1) (a)** of the **Labour Court Rules, 2017**, a notice of appeal should be in **Form LC 4. Form LC 4** requires the Appellant to ensure grounds of appeal are “concise and precise”. It is the Respondent’s argument that the first ground of appeal is not clear and concise to the extent that “the totality of the evidence” that Appellant is referring to is not clear. It is the Appellant’s submission that the gravamen of the first ground of appeal is simply that the evidence led by all the witnesses did not prove, on a balance of probabilities, that an offence was committed. Although it is a trite position at law, that grounds of appeal must be concisely and clearly set out, in **Zvousekwa V Bikita RDC SC 44/15** the Supreme Court found that when construing grounds of appeal, a court ought to be guided by the substance of the grounds of appeal and not the form. The court stated as follows;

“*Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words “there has been a misdirection on the facts which is so unreasonable that no sensible person would have arrived at such a decision” have not been added thereto. If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective”*

It is clear, in casu, that although the ground of appeal could have been better worded, the substance of the appeal is still clear in that the Appellant is alleging a wrong conclusion was reached based on a misdirection on the facts. The preliminary point clearly lacks merit and is consequently dismissed.

There are basically two issues for determination before this court. The first is whether or not the Respondent’s Appeals Authority erred at law in finding Appellant guilty on the charge levelled. The second issue is whether the Disciplinary Authority erred in imposing the penalty of dismissal.
 WHETHER OR NOT THE DISCIPLINARY AUTHORITY ERRED IN FINDING APPELLANT GUILTY

Mr Gwanyanya, for the Appellant, in oral submissions, outlined that the appeal stood to be upheld on the basis of a misdirection on the facts by the Disciplinary Authority. There were three issues the court had to consider. These were, firstly, whether or not Appellant had taken steps to mitigate loss. It was his submission the record showed that a Security Guard by the name of Shoriwa had been advised of a plan to steal from the employer by some employees. Shoriwa had in turn advised Appellant. Appellant had then devised a plan to apprehend the perpetrators. He had requested the security details to play along with the would-be perpetrators, the perpetrators would then be apprehended upon exit. It was Mr Gwanyanya’s submission that the plan had however failed because Shoriwa knocked off duty on the day before the plan could manifest. He had not informed the Appellant and the security details before knocking off duty resulting in the perpetrators escaping with the goods.

Mr Gwanyanya submitted that the Appellant having taken reasonable measures to prevent loss, the Disciplinary Authority therefore erred and misdirected in finding him guilty of the charge. Mr Gwanyanya submitted that, contrary to the findings made the Appellant, had, as also reflected in the record of proceedings, attempted to report the matter to his immediate Supervisor. He told the Disciplinary Authority that the called his Supervisor but because it was a holiday the call had not gone through. The only next chance he had got to report was on the 28th of December, 2022 after the holidays.

Mr Gwanyaya, also urged the court to note that Appellant had taken reasonable steps to apprehend the perpetrators by setting up the trap. The fact that the trap was not successful was not of his making. He could not have known that Shoriwa would decide to knock off duty without advising him in advance so that alternative measures would have been adopted.

Lastly, Mr Gwanyanya submitted that sight should not be lost that Appellant did not personally benefit in any way from the theft. The USD$ 200.00 that was given to the security detail by the name of Kuda was only given to him after the incident. The Respondent was unable to establish in the hearing that he did not declare the amount. Against this factual background the Appellant clearly ought not to have been convicted of the charge.


Mrs Matsika, for the Respondent, submitted that the charge levelled against the Appellant was based on his failure to perform his duties as a primary line of defence against loss to the Respondent. The Appellant had failed to take action to prevent the loss that Respondent eventually suffered. His duty as a Security Guard was to prevent loss. He had however failed to prevent loss. The entrapment plan that he had purportedly set up was not authorised by the employer. Evidence had been led to this effect which Appellant had not controverted. The evidence in the record in any event showed that it was unnecessary for Appellant to set up a trap as at that stage, as he had all the information as to when, where, how the theft was to be conducted. The perpetrators were also known. The Respondent position was that the entrapment plan had the effect of preventing the security guards from apprehending the perpetrators upon exit. Mrs Matsika also submitted that the Appellant could not blame Shoriwa. It was his duty having formulated the entrapment plan to carry it out to its logical conclusion. She referred to **T.M Supermarket v Elisha Mangwiro SC 57/03** where the Supreme Court found that Mangwiro having delegated to his subordinates still had a duty to follow up to ensure the task delegated was completed. In this case Appellant having instructed Shoriwa to set up a trap ought to have followed up to ensure its successful execution. Having so failed the Disciplinary Authority did not err or misdirect in finding him guilty of an act inconsistent with the provisions of his contract of employment.

On the issue as to whether or not the Appellant had personally benefited from the theft, Mrs Matsika submitted that this was an irrelevant consideration. It certainly had not been an issue before the Disciplinary Authority. It was therefore not an issue before this court. Even if the court were to consider its relevance that would still not detract from the gravity of the offence perpetrated. On the issue of failure to report to his supervisor she submitted that the supervisor, Partson, had given evidence in the disciplinary hearing that upon his return to work after the holiday he was informed of the incident not by Appellant but by Joshua (the complainant). Lastly, on the issue of penalty, Mrs Matsika submitted that the penalty of dismissal was appropriate in the circumstances of the case. The offence committed was a very serious offence. The Respondent had also suffered loss as a result of the theft. The Appellant clearly failed in his duty to prevent that loss. On this basis the Respondent’s prayer was for the appeal to be dismissed.

In his reply, Mr Gwanyanya submitted that it was Appellant position that he had indeed tried to reach out to his supervisor, Partson, to report the theft incident but the call did not go through. The Appellant was also insisting that he had taken reasonable steps to prevent the theft and no evidence had been led by Respondent to show entrapment was excluded as a method to prevent loss. On the penalty the Appellant’s position was that the penalty was too harsh. Considering the mitigatory factors he had placed before the Disciplinary Committee he ought to have been given a warning/reprimand.

**FINDINGS/EVALUATION**

The position of the law with regards powers of the court in sitting as an appellate court is well settled. In case of **Zimre Property Investments Limited v Saintcor (Pvt) Ltd & Anor SC 59/16** it was held that;

> “The position of the law is now settled that an appellate court will not interfere with the findings of facts made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts would have arrived at such a conclusion. Where there has been no such misdirection, the appeal court will not interfere”

In **ZINWA v Moyounotsva SC 28/15**, it was also held by the Supreme court that an appellate court will not interfere with factual findings made by a lower court unless those findings are grossly unreasonable. See also **Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)**. The crux of the first ground of appeal is that, the totality of the evidence led by the witnesses did not prove, on a balance of probabilities, that he had committed an act inconsistent with his contract of employment. Per contra, the Respondent submits that sufficient evidence was led to support the conviction on the charge.

A perusal of the record of proceedings will show that the findings of fact by the Disciplinary Committee were supported by evidence. The factual issues central to the conviction were not in dispute as recorded on page 4 of the minutes of the disciplinary hearing. It was not in dispute that the Appellant had received a tip off, that he had also further instructed the security guard Shoriwa to comply with the culprits’ plan to steal from the employer. It was also not in dispute that an act of theft did in fact occur and that the stolen goods were not recovered. That the security guard was paid a bribe of US$40 which he handed over to the Appellant was not in contestation. The Respondent relied on a trite position of law that facts not disputed are admitted and this position was upheld in **DD Transport (Pvt) Ltd v Abbott 1988 (2) ZLR 92 (SC)**. The question before the court therefore is whether the admitted facts were sufficient to sustain a finding of guilty on the charge. The court has noted that the Respondent has discounted entrapment as one of the recognised preventative measures at the workplace. In the court’s view however the Appellant having admitted that he had been made aware of a pending theft and that he had thereafter instructed the security guard to “co-operate” with the culprits, the onus clearly shifted to him to prove that he had taken adequate steps to prevent theft. He had to show that he had implemented adequate measures for the success of the trap. The Appellant clearly failed to lead any evidence to that effect. The Respondent has submitted before this court that the Appellant’s intervention with the entrapment plan actually compromised its security system as it hindered the security guard from apprehending the thieves as he was under the impression they would be apprehended at the final exit point.

The court agrees entirely with the Respondent on that score. The facts indicate that the information which the Appellant had been furnished with was sufficient for him to prevent the resultant loss. Given the circumstances it was not necessary for him to prolong the issue by setting up a trap which trap was not, in any event successful, thus enabling the culprits to complete the act of theft. The Appellant’s main duty was to prevent loss, any loss control procedure he was going to adopt was supposed to be preventative. It is clear in this case theft would have been prevented from the onset. The failure by the Appellant to prevent the loss in circumstances where he was privy to the information of a potential loss to the employer clearly constituted conduct inconsistent with his duty to prevent loss.

His defence that he had been let down by Shoriwa who had failed to give him additional updates clearly cannot succeed. The record shows in any event that Shoriwa gave uncontroverted evidence before the disciplinary committee that he had forwarded messages from the Security guard to Appellant concerning the on-going theft. The truck was still on the premises at the material time. It is clear the Appellant had an opportunity to take measures to prevent theft as at that stage but he did not. The record of proceedings also clearly shows that in addition to failing to take sufficient steps to prevent the theft, the Appellant, after the commission of the theft, instructed the security guard not to file a report. This was a clear attempt to conceal the fact that theft had been committed. Such behaviour on his part clearly shows he did not act in good faith. He clearly failed to take adequate steps to fulfil his fiduciary duty to safeguard the interests of his employer. See in this respect **Madzima v Marange Resources SC12-18**. In view of the above it is this court finding that the Disciplinary Committee did not err in finding that Appellant’s conduct fell short of his express duty to prevent loss, as well as his implied duty to act in the best interests of the employer. The first ground of appeal clearly lacks merit and is therefore dismissed.

**WHETHER THE DISCIPLINARY AUTHORITY ERRED IN IMPOSING DISMISSAL PENALTY**

It is trite law that a penalty of dismissal may only be imposed where the employee’s conduct goes to the root of the employment contract. This position was well established in various judgments such as **Circle Cement v Nyawasha SC 6-03** and **Zimbabwe Platinum Mines (Private) Limited v Godide SC 2-16** where the court held that;

“That position accords with the common law principle that an employer is entitled upon conviction of an employee of misconduct which goes to the root of their relationship to dismiss him.”

The Appellant submitted before this court that the offence was committed inadvertently. It was not committed deliberately. A trap was set putting security in charge of the execution of the trap but as a result of negligence on the part of the security detail the trap was not successfully executed. He submits that the circumstances of his case therefore did not warrant a dismissal penalty. The Appellant placed reliance on the authority in **Celsys Limited V Nobert Ndeleziva SC 49/15** where the Supreme court made the following findings;

“Finally, I find that the misconduct in question, having been committed for the reasons given by the respondent, and not having caused the appellant any real prejudice, financial or otherwise, appropriately fits into what was described in the case of Clouston & Co Ltd v Carry, cited with approval in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLRS at page, as: “misconduct (which), though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted”.2 (my emphasis)In short, while the respondent admits to having acted contrary to the express or implied conditions of his employment, I find myself in agreement with the conclusion of NEC and the court a quo that the misconduct was not one that, on any reasonable basis, merited the harsh penalty of dismissal. In view of this I find that the appellant acted unreasonably in dismissing the respondent from employment, and therefore misdirected itself.”


In the court’s considered view the Appellant’s reliance on this case is misplaced. The circumstances of this case clearly show that his conduct did prejudice the Respondent as it suffered a loss from the theft. The misconduct committed by the Appellant also does not fall in the bracket of “misconduct (which), though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted”.

It is also clear that the penalty of dismissal imposed by the Respondent cannot be described as unreasonable or unfair in the circumstances where the Appellant had acted irresponsibly resulting in the employer suffering loss. No cogent reason has also been advanced by the Appellant for interfering with the penalty. His assertion that the act of misconduct was committed inadvertently simply cannot be accepted. His conduct, to the contrary, constituted a deliberate breach of his duty to prevent loss in circumstances in which he had sufficient information at hand to apprehend the culprits. His actions also clearly went to the root of the employment contract. On the basis of the authority in Girjac Services (Pvt) Ltd v Mudzingwa 1991 (1) ZLR 243 to which the court was referred by the Respondent reinstatement was not an appropriate remedy. The Respondent in this case could not be asked to continue to repose any trust in the Appellant following circumstances where he not only failed to prevent loss but where he also attempted to conceal the incident. The penalty of dismissal clearly must be upheld. It is also the position at law, in any event. that in the absence of any misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee an appeal court cannot interfere with the exercise of discretion by an employer. See in this respect Zimbabwe Platinum Mines (Private) Limited vs Godide SC 174/2012. The second ground of appeal thus lacks merit and is hereby dismissed.

In the result it is ordered as follows:

The appeal be and is hereby dismissed with costs.
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