Felix Mupangwa V African SUN Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/415/16
HELD AT HARARE 19 MAY 2016
CASE NO
JUDGMENT NO LC/H/415/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/415/16

HELD AT HARARE 19 MAY 2016				CASE NO LC/H/384/15

& 8 JULY 2016

In the matter between:

FELIX MUPANGWA						Appellant

And

AFRICAN SUN LIMITED					Respondent

Before The Honourable P Muzofa, Judge

Appellant			In person

For Respondent		W H Chiware (Human Resources Manager)

MUZOFA, J:

The appellant was a supervisor based at Holiday Inn Hotel (the hotel) until 26 February 2015 when he was dismissed following disciplinary proceedings.

Following alleged acts of misconduct the appellant was charged in terms of category 5 offence 2 of the respondent’s Code of Conduct. The charge being any conduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her employment.

The basis of the charge were three conducts.  According to respondent following a tip off that fraudulent activities were taking place at the hotel through connivance of supervisors, cashiers and waiters specifically by way of splitting bills, the respondent put in place an investigative process.  The process involved ‘mystery guests’ who would visit the hotel and dine at the same time assessing the service.  On 12 December 2014 one such mystery guest went for dinner at the hotel.  He was in the company of three others.

After dining the mystery guest approached the cashier to make payment since the restaurant was about to close.

He was presented with a $88 bill, which was immediately withdrawn and he was presented with two $44 receipts, the split bill.  A separate bill for drinks was later presented in the sum of $11.

It was alleged that appellant split the bill without a request from the customer.

The second basis for the charge was that appellant gave his micro card to a cashier who swiped on the machines a duty specifically or supervisors.  Appellant admitted to this misconduct.

The third basis was that on different occasions appellant opened bills and authorized reprints.

The appellant raised four grounds of appeal though not elegantly set out.  Appellant impugns the respondent’s decision in that the misconduct allegations particularly that he gave a cashier his micro card is a system issue he should have been charged under category three offences instead of category five.

Secondly that the issue that he gave the cashier his micro card was over sensationalised, no prejudice befall the respondent.

Thirdly that there was no proof that he authorised reprints.

Fourthly that in respect of the ‘mystery guest’ he split the bill on request by the customer.  Therefore there was no misconduct.

The court will not address the fourth ground of appeal.  In that ground of appeal the appellant relates to the misconduct in respect of the ‘mystery guest’.  According to the minutes of the disciplinary committee he was found not guilty in relation to the said misconduct.  This is evident even in the appellant’s internal appeal.  He appealed against the dismissal in respect of the second and third acts of misconduct.

To that extent the fourth ground of appeal is dismissed.

I will address the remaining grounds of appeal in turn.

According to the appellant the act of misconduct that he gave a cashier a micro card fell under category three offence which attract a second written warning on first breach.  For appellant the choice to charge him under category five offences was a calculated to dismiss him.

For the respondent it was submitted that the prerogative to choose the charge is vested with the employer.  An employee cannot select the charges which should be preferred against him.

I agree with the respondent’s submissions on this issue.  In an employer – employee  relationship, where there is an allegation of misconduct, it is the employer who is the aggrieved party.  In terms of the appellant’s Code of Conduct the process of investigations and preference of a charge are vested with the manager clause 9.1.1.1.   It is at this stage that the misconduct coupled with the available evidence is supposed to guide the manager on which charge to prefer.

Where an incorrect charge is preferred and is not supported by evidence clearly the employee deserves to be found not liable.

In this case the appellant’s conduct to give a cashier his micro card was viewed by the employer as a dismissible offence.  It is not for the court to question the employer’s exercise of discretion in formulating charges.  In this case for instance the background is that of suspected fraudulent activities.

It is not the responsibility of the court to formulate charges or substitute a charge for another.  See generally Zimasco (Pvt) Ltd v Jameson Chizema SC 38/07.  The court can only interfere where there is no evidence to prove the preferred charges.  The court cannot  substitute the employer’s discretion.

This ground of appeal has no merit and is accordingly dismissed.

The second ground of appeal is closely related to the first ground of appeal, in that the appellant gave a cashier his micro card.

The respondent’s view was that a micro card is highly personal the supervisor issued with such would use his pin number to access the system.

It is therefore confidential but appellant breached this confidentiality by giving a cashier his micro card.  The cashier actually accessed the system and swiped six times on the machine, transactions that were supposed to be done by a supervisor.

Appellant argued that this was innocent and nothing to the prejudice of respondent took place.  I must say that appellant took a very simplistic view of the operations in a workplace.  Appellant as a supervisor was in a position of trust and was issued with a micro card which enabled him to conduct certain transactions.  In my view if there was no risk there was no need for micro cards everyone would access the system.  In its operational wisdom the respondent put in place the micro card system, but appellant took it lightly thereby exposing the employer to risk.

If the employer viewed this misconduct as a dismissible offence the court cannot interfere with the discretion.

It was not shown by the appellant that the respondent’s discretion was injudiciously exercised.  The ground of appeal is dismissed.

The third ground of appeal is that there was no proof that he authorised reprints.  In his submissions before this court the appellant also indicated that he was a supervisor, he had the authority do reprints and void bills using his micro card.

According to the respondent on 4, 7 and 10 December 2014 the appellant authorised reprints which acts were inconsistent with his terms of reference.  To respondent these reprints were used to defraud the company.  There was no evidence to support this averment on fraud.

There was evidence from a statement from one Loreen Sana that reprints of bill 3769 bill number 1559 and bill number 3482 were made using appellant’s supervisory card.

This was adequate evidence to prove the reprints.  An appeal court can only interfere with factual findings where it is shown that the decision made was grossly unreasonable.  ZINWA v Moyounotsva SC 28/15.

In this case I find no gross irregularity in view of the evidence that was before the disciplinary committee.

The offence preferred against the appellant is a dismissable offence on first breach.  Three acts of misconduct were highlighted, one fell by the way side, he admitted to one.  That one admission would invariably justify his dismissal even if the third misconduct was not proved of which it was proved.

Accordingly the appeal be and is hereby dismissed.