Leonard Tsvangirai v Montana Meats

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/11/2016
MASVINGO, 24 MARCH 2016 &
CASE NO LC/MS/49/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/MS/11/2016

MASVINGO, 24 MARCH 2016 &			                   CASE NO LC/MS/49/2015

13 MAY 2016

In the matter between

LEONARD TSVANGIRAI						              APPELLANT

Versus

MONTANA MEATS							RESPONDENT

Before the Honourable D L Hove J

For the Appellant	In Person

For the Respondent    D C Dhumbura (Legal Practitioner)

HOVE J:

The facts of this matter are not in dispute. They are that the appellant was in the employ of the respondent as a back-splitter at its Masvingo abattoir with effect from May 2009. He worked without incident until 17 February 2014 when he was suspended from duty for taking liquid soap to clean his work clothes that is his work helmet, gumboots and apron,

at the employer’s premises.

The allegations were that he had removed the soap from the supervisor’s office without authority. He was found guilty and dismissed. He appealed against the dismissal and the conviction and the matter eventually was placed before an arbitrator. There were some procedural issues raised in relation to alleged irregular composition of the disciplinary committee.

These are appeal proceedings not a review application. It is in an application for review that one raises allegations of procedural irregularities. Had the applicant sought to challenge the procedural irregularities, he ought to have filled grounds for review in terms of the rules. See Mlambo v City of Harare 2001 (2) ZLR 505.

Judicial review is concerned not with the correctness of the decision but with the decision making process. In casu, the appellant has not filed a review application. He cannot raise issues for review in an appeal as this would be irregular. On appeal one is only concerned with the substantive correctness of the decision appealed against not the process of arriving at the decision.

In the case of Khader v Chairman, Town Planning Appeals Board 1998 (4) ALL SA 201 and in Chiripanyanga v NOCZIM LC/H/102/2011 the position was established that where a litigant’s real grievance is against the method of the trial, it is proper to bring the case on review.

Ground number one is thus improperly before the court and is struck off.

Grounds of appeal number 2, 3 and 5 challenge the factual findings made by the arbitrator that the appellant was properly convicted of the offence of theft.

If the appellant genuinely believed that the soap was for the purpose that he used it for, there was no need to have stolen the soap and be caught only through the aid of the CCTV. The fact that the appellant had to steal the soap shows that he knew that it was not intended for the use that he used it for. There was no need for the arbitrator to distinguish between theft/fraud and a failure to follow company procedures.

The distinction would not take the appellant’s case any further. He took the soap without authority, the employer could have charged him with failing to follow procedure or theft, it is really up to the employer what charge to prefer. The important thing is that the employer would be required to prove its allegations. In this case he did manage to prove the allegations with the help of the CCTV.

Further the appellant admitted his guilty and paid an admission of guilty in criminal proceedings. The arbitrator need not have sought to re-establish that which had been established in the criminal courts where the standard of proof is much more onerous. In casu however the appellant pleaded guilty and that sealed his fate. The arbitrator did not misdirect himself by taking into consideration the criminal conviction or admission of guilty.

The last ground, ground number 4 challenges the appropriateness of the sentence.

The courts have in numerous cases established that the issue of penalty is really within the province of the employer and the court cannot interfere with the discretion of the employer in this regard unless it can be shown that the employer’s exercise of its discretion was grossly unreasonable. See in this regard the case of Toyota Zimbabwe v Posi SC 55-07, Innscor Africa (Pvt) Ltd v Letwin Chimoto SC 6-12,  Tregers Plastic(Pvt) Ltd Woodreck v Sbanda & Anor SC 22-12, and Mahonaland Turf Club v George Mutangadura SC 5-12.

In Cirlce Cement (Pvt) Ltd v Chipo Nyawasha SC 60-03 the court held as follows:

“Once the employee had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment. The question of penalty less severe than dismissal being available for consideration would not arise unless it was established that the employee acted unreasonably in having a serious view of the offence committed by the employee.”

The appellant has not established that the employer was unreasonable in taking a serious view of the offence in this case and the ground of appeal has no merit.

The argument that the appellant only took the soap to wash the work clothes at the employer’s premises and that the soap was just a little quantity cannot assist the appellant in having the penalty “reduced” because the facts reveal that the appellant acted dishonestly. The employer was well within its right to dismiss an employee found guilty of an offence involving dishonesty.

I therefore find that the entire appeal is without merit and dismiss it with no order as to costs.

Coghlan Welsh & Guest, respondent’s legal practitioner