Gain Cash and Carry (Private) Limited v Musa Kapeni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/76/25
HARARE, 11 FEBRUARY, 2021 AND
CASE NO LC/H/643/24
26 FEBRUARY 2025
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 11 FEBRUARY, 2021 AND

26 FEBRUARY 2025

GAIN CASH AND CARRY (PRIVATE) LIMITED

MUSA KAPENI

JUDGMENT NO LC/H/76/25

CASE NO LC/H/643/24

APPELLANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant

For Respondent

- M. Shumba, Manager

- S.N. Muhambi, Unionist

MUSARIRI, J:

On the 17th May 2024 the Negotiating Committee (NNC) of the NEC for the Commercial

Sectors ordered appellant to reinstate respondent with full salary and benefits. Appellant then appealed the ruling to this Court in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

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The grounds of appeal were triplet thus;

“1. The Respondent approached the NNC with ‘duty hands.’ He signed an acknowledgement of debt, claimed and accepted his terminal benefits. By doing so he has already relinquished and lost the right to appeal and sealed his admission of guilt.

2. The NNC grossly erred and misdirected itself in finding that the Respondent was found guilty on lack of skill when in fact, the respondent unsatisfactorily performed his work and a such was only charged unsatisfactory work performance and not lack of skill. It is wrong to impose and smuggle a different charge other than the one that the Appellant had used against the Respondent.

3. NNC erred in its findings that there was no willful or intentional loss or damage to employers or customers’ property. However, it is a fact not disputed that the organization lost a total of USD$23, 000.00 as a result of the Respondent’s failure to discharge his duties.”

Appellant then prayed that the NNC’s ruling be set aside.

In his opposing affidavit respondent countered as follows;

“3. Ground one of the appellant has no proof that I approached the LJC with dirty hands. There is no law that says if one gets his terminal benefits, the same cannot make an appeal. More so this is not a doctrine for dirty hands. This ground is meritless.

4. Ground two again is meritless. I do not see where the NNC erred. When the charge was raised, it was not explained to mean lack of skill. But also the same the hearing officer was

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the jury and judge of his own case. There was no evidence of lake (sic) of skill even as shown during the hearing proceedings. Therefore the decision of the NNC was correct.

5. There was no hearing relating to willful or intentional loss of employer’s property as this

charge falls under Misuse of Employer’s Property. This is being smuggled in. I challenge this act in toto. There is even no evidence to prove that I intentionally or willfully caused the loss. The appellant has not put in place any evidence that I should have detected the fake invoices by mean A or B.

On these grounds I oppose the appeal…”

Analysis 1st Ground

Respondent does not deny the averment that he claimed “ and accepted his terminal benefits.” Appellant argued that thereby respondent lost the right to challenge his termination. Respondent countered that there is “no law which says if one gets his terminal benefits, the same cannot make an appeal.” The applicable law was set out in the case of;

Chidziva v ZISCO 1997(2) ZLR 368(S)

Per Korsah JA at 382 G

“There can be no room for doubt that the Zisco Workers Chairman and the Zisco Workers Representatives, who made submissions with several references to the Regulations, were awarethat theirrefusal to accept the retrenchment packagewould haveled to the invocation of subs (6), and not to a stalemate. Yet, almost to a man, all the retrenchees accepted and received the retrenchment package, thus waiving the right to object to it.”

By parity of reasoning respondent waived his right to challenge his termination by claiming and

receiving his terminal benefits.

2nd Ground and 3rd Ground

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The NNC stated that;

“The Respondent charged and dismissed the Appellant for unsatisfactory work performance i.e. lack of skill which the employee expressly or by implication holds out himself to possess in that he dispatched goods using edited invoices on several occasions resulting in the company losing a total of US$23 000.00. There is no evidence to show that the Appellant indeed lacked any skill… In this instance, the Respondent has failed to prove that the Appellant was indeed dishonest. Therefore the charge of unsatisfactory work performance cannot be proved in this case.”

The charge laid against respondent was set out in appellant’s letter dated 25 July 2023. The charge

is defined as “Group IV Offences (3): Unsatisfactory work performance.” The charge does not allege lack of skill or dishonesty as stated by the NNC. Therefore its conclusion that appellant failed to prove that appellant was dishonest amounts to a gross misdirection. The NNC did not have a valid basis for reversing the termination of respondent’s employment by appellant.

Conclusion

All of the appellant’s grounds of appeal abound with merit. Thereforethe appeal ought to beupheld with consequent relief.

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Wherefore it is ordered that,

1. The appeal be and is hereby allowed;

2. The decision dated 17 May 2024 made by the Negotiating Committee of the NEC for

the Commercial Sectors is set aside and substituted as follows;

“The employee’s appeal be and is hereby dismissed.”; and

3. Each party shall bear its own costs.

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