Gain Cash and Carry v Tarisai Ndove

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/305/24.
HELD AT HAHARE 25TH JUNE 2024
CASE NO LC/455/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/305/24.

HELD AT HAHARE 25TH JUNE 2024	CASE NO LC/455/24 AND

In the matter between

GAIN CASH AND CARRY	APPELLANT

And

TARISAI NDOVE	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE.

FOR THE APPELLANT : L. MUCHANYUKWA (H.R.MANAGER) FOR THE RESPONDENT: S. MUHAMBI ( TRADE UNIONIST)

MAKAMURE J :

This is an appeal against a determination by the Chief Designated Agent of the Negotiating Committee of the National Employment Council for the Commercial Sectors of Zimbabwe( NECCSZ) which set aside a decision of the Local Joint Committee (of the NECCSZ) and ordered the appellant to reinstate the respondent with no loss of salary or benefits. This aggrieved the appellant leading to the present appeal . Three grounds of appeal are raised.

These are that (i) the Negotiating Committee erred and misdirected itself in finding that the respondent was not dishonest and yet it was proven that he had deliberately falsified documents to conceal stock variance and that the respondent had deliberately tendered a fake

$10.00 note to defraud the company ;(ii)the Negotiating Committee erred in finding that the respondent was not guilty of willful or intentional loss or damage of the employer’s property;

and (iii) the Negotiating Committee erred by considering only two charges when the respondent was charged with and convicted of three offences at the workplace.

The respondent was dismissed from the appellant’s employ . This followed disciplinary proceedings for the following offences which were violations of paragraphs 2,3 and 5 respectively ,of the NECCSZ code of conduct as follows :

GROUP IV OFFENCES:

2. Misuse of employer’s property

Willful or intentional loss/damage of the employer’s /customer’s property regardless of the

value of such property. (ii)3.Unsatisfactory work performance.

(iii)5. Dishonesty and other related offences.

At the conclusion of the disciplinary proceedings at the workplace the appellant convicted the respondent of all three offences.

The respondent appealed to the Local Joint Committee (LJC) which upheld convictions of the first and third offences. It found that there was insufficient evidence in support of the second offence, that is, ‘Unsatisfactory work performance.’ The decision of the LC aggrieved the respondent and it appealed to the Negotiating Committee.

When the matter was before the Negotiating Committee(NC) only the two offences whose convictions were upheld by the LJC were considered. The Chief Designated Agent of the NC found that there was no evidence in support of both ‘Misuse of employer’s property’ and ‘Dishonesty and other related offences’. As a result of this finding the decision of the Local Joint Committee was upset and the appellant was ordered to reinstate the respondent.

There was no cross-appeal to the NC the against the finding by the Local Joint Committee that there was no evidence in support of support of the offence of ‘Unsatisfactory work performance’. This means that the NC did not have a chance to consider that offence. What this also means is that this Court can only consider the issues which the NC considered. This is trite. In Happison Muchechetere v ZBC and Two Others SC143/21 the Supreme Court held that an issue which had not been considered in the lower court could not be considered on appeal. See also Kundai Magodora v Care International SC 24/14. Consequently, the third ground of appeal is not properly before the Court.

When the parties appeared in Court Mr Muchanyukwa who represented the appellant, argued with respect to the charge of dishonesty and other related offences that the respondent and his team received 38 bags of stock feed but fraudulently wrote that there were 40 bags

.On the other hand, the other team wrote the correct figure of 38bags . It was argued that the respondent wrote the figure 40 so that this would tally with what was in the system when in fact this was not so. It was submitted that the respondent by so doing had the intention to conceal by understating the number. Further on the same charge, on 27 January 2021, the respondent tendered a ten dollar note to a teller. The teller later found out that the ten dollar note was fake. The respondent was called and this was brought to his attention . The respondent replaced the fake note with a genuine note. For this reason, the submission was that there was an intention to defraud the employer. During the initial disciplinary proceedings, the respondent was asked why he did this. His response was that he did not know that the note was fake. On being asked further he indicated that he ran a chicken business at his home and that this may have been the source of the fake note.

With respect to the charge of willful destruction of the employer’s property , it was argued that a customer paid for 17 bags of high fibre pearlenta but the respondent only counted and gave the customer 12bags, that is 5 bags less than what the customer had paid for. The CCTV

also showed that the respondent had counted only 12 bags and not 17.It was argued that the 12 bags were dispatched without the respondent checking with another person. The customer complained. It was submitted that by this conduct the respondent tarnished the brand of the appellant. It was also submitted that the respondent had apologized and by so doing showed his guilt.

In response Mr Muhambi who represented the respondent argued that all invoices were generated at the till points and then taken to the points of dispatch. Further , it was not the respondent who wrote the Goods Received Voucher (GRV) with respect to the 38 bags, although he was present when such voucher was written. In addition, the counting of this stock involved two teams. This ensured that where there was a variance a report from a different team was necessary so that a correct figure was obtained . With respect to the fake ten- dollar note it was argued that the incident occurred during the morning and that it was only when the respondent was about to go off duty that he was called and advised that he had tendered a fake ten dollar note. It was argued on behalf of the respondent that there was no official publication from the Government advising members of the public about the features of a genuine ten dollar note .This means that the respondent was not aware that he had tendered a fake note. However, when he was called and this was brought to his attention, he remembered that he had tendered ten -dollar notes and so agreed on the basis that one of the notes he had tendered could have been fake. This it was argued ,showed that the respondent was an honest worker and could have denied tendering such. It was also argued that the respondent had no intention of exchanging the fake note. However ,when this was brought to his attention, he replaced it. With respect to the charge of willful destruction of the employer’s property, it was argued that the custodian of the appellant’s stock is the manager. Further there were many checkers. In view of this it could not be said that the respondent caused the loss of the appellant’s property. It was argued that the respondent genuinely

miscounted the bags. Instead of giving a customer 17 bags he gave the customer 12 bags. The CCTV confirmed this . There was no evidence of him destroying or trying to destroy the five bags. He made a mistake. This is why he apologized.  It was argued further that there was no evidence that he took way or wanted to conceal the 5 bags. It was submitted that under the circumstances there was no merit in the appeal; that the decision of the NC is unassailable  and therefore the appeal should be dismissed.

In response it was argued that the point was not that 5 bags were lost but that the affected customer complained and the brand of the respondent was tarnished. It was submitted that under the circumstances the appeal should succeed.

The relevant code defines the offences , all of which call for the ultimate penalty of dismissal upon first breach, as follows:

“2. MISUSE OF EMPLOYER’S PROPERTY

Wilful or intentional loss/damage of employer’s /customers’ property regardless of

the value of such property.

…

5.DISHONESTY AND OTHER RELATED OFFENCES

Falsifying or changing any document with fraudulent intent or attempting to do so

including clocking of another employee’s card.

Unlawful taking of property with the intention of permanently depriving the company of the use of such property.

Knowingly aiding or assisting the unlawful taking of property stated above.

Giving or receiving or attempting to give or receive any bribe or inducing or attempting to induce any person to perform a corrupt act.”

After considering the documents and oral argument, it appears that the charge of ‘wilful or intentional loss /damage of the employer’s property’ was really answered by Mr Muchanyukwa himself. He said the focus was not on the failure by the respondent to give the customer the 17 bags which had been paid for, but on the customer complaining and therefore tarnishing the brand of the respondent. As already noted, there is no proof that the employer  or the customer lost property neither is there proof of damaged property. What is common cause is that the customer was given 12 bags instead of 17 and that it was a genuine error.

The customer complained. It is the right of a customer to complain where there is reason to do so. Customer care is paramount in any organization. But under the circumstances of the present case, can an error which the respondent made, leading to the customer complaining, amount to wilful or intentional loss/damage of the employer’s or customer’s property?  It appears to me that there are two separate issues, that is, one can talk of loss of property on its own and equally consider the question of tarnishing of the respondent’s image separately.

What happened was an error. There was therefore no intention to cause either loss or damage. The tarnishing of the appellant’s brand in my view did not mean that the respondent had destroyed the appellant’s property. While this conduct may amount to an act of misconduct, I am of the view that this is not the loss or damage contemplated by the code. On the other hand, had the respondent intentionally physically destroyed the five bags in question , this I think, would have amounted to wilful damage leading to loss of the employer’s property as contemplated by the relevant code. This offence was therefore not proved.

On the issue of dishonesty and related offences (falsifying and changing any document with fraudulent intent) , it appears that there were two teams which checked each other’s work thus ensuring that the figures in the system tallied with what stock was on the ground.

I can therefore not say that the fact that the other team found 38 bags while the respondent ‘s team wrote 40 bags was an act of dishonesty showing an intention to defraud. In my understanding, the other team did exactly what it was expected to do, check the correctness of the respondent’s team’s finding. The question of falsifying or changing a document with fraudulent intent does not appear to arise. With respect to the fake ten- dollar note, the explanation by the respondent on how he could have acquired the fake note was not challenged. It also appears that there is merit in the submission that members of the public have no guidelines on what is and what is not a fake ten dollar note. It also appears that because of this, the respondent (and the teller) were not immediately aware that the note was fake. It is not clear how and at what stage during the course of the day, that the teller in question realized that they had received a fake note. In the record of proceedings , the teller who identified the respondent as the source of the fake ten- dollar note was not called to testify. This makes the appellant’s case weak. This is said in view of the respondent’s vehement denial that he knew that the ten- dollar note was fake.

Fraud is defined as ‘Unlawfully making with intent to defraud , a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.’ (Emphasis added). Feltoe, A GUIDE TO ZIMBABWEAN CRIMINAL LAW. It appears that the intent to defraud in both the allegation of dishonesty in recording the figure of 40 instead of 38, which this court found not to be a question of ‘falsifying ‘ but cross checking the correctness of figures, and the tendering of a fake ten dollar were not sufficiently canvassed  in the lower tribunal . Fraud is a crime of intent. The intention to defraud was not proved. Because the intention was not proved, this charge again was not proved.

It is trite that he who alleges must prove. The Supreme Court stated, in the case of Kudzai Mwatukuya Mubaiwa(nee Ckikumba) v Gainmore Mubaiwa SC19/22 , that the established principle is that he who alleges must prove. Proof in labour matters as in civil

proceedings is on a balance of probabilities. Nyahondo v Hokonya and Others 1997 (2) ZLR 457; Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd SC 31/13.In the present case, I find that the appellant has not discharged the requisite onus. I find no error in the decision of the NC .The decision is upheld.

In view of the foregoing the appeal fails. It is accordingly ordered that

The appeal be and is hereby dismissed.

The decision of the Negotiating Committee ordering Appellant to reinstate the Respondent without loss of salary and benefits from the date of unlawful dismissal is hereby upheld.

In the event that reinstatement is no longer possible the appellant is ordered to award the respondent damages as agreed between the parties. Should parties fail to agree either party is free to approach this Court for quantification.

Appellant bears the costs of suit.