Lloyd Marechera v National Social Security Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/334/2016
HARARE, 17 MARCH 2016
CASE NO. LC/H/04/16
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/334/2016

HARARE, 17 MARCH 2016				     CASE NO. LC/H/04/16

AND 27 MAY 2016

In the matter between:-

LLOYD MARECHERA					 		Appellant

And

NATIONAL SOCIAL SECURITY AUTHORITY			Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr C. Mavhondo (Legal Practitioner)

For Respondent		Mr S. Bhebhe (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Disciplinary Appeals Committee that upheld the decision of the Disciplinary Committee to dismiss the Appellant from employment after committing a number of misconducts.

The background of this matter is that,

Appellant was employed by the Respondent for 11 years.

Appellant was a clerk responsible for filing and opening new files.  He could also be sent to stores to collect stationery.

Appellant was charged with fraud and theft in that

On 30/4/15 he collect 1 x 05A tonner purportedly for compliance.

15/5/2015 he collected 1 x 05A tonner purportedly co Compliance.  Compliance however does not have a printer that uses 05A tonner.

12/6/2015 he collected 2 x 05A tonners purportedly for NPS Registry.

3/7/2015 he also collected 2 x 55A tonners of NPS Registry.  This department does not have a printer that uses that tonner.

16/7/2015 Appellant made an attempt to make a requisition of 2x 05A tonners but this was cancelled before Appellant had taken the tonners.  This is the incident that alerted the employer which led to investigation that unearthed all the other incidences.

The grounds of appeal before this court are that,

The Appeals Committee erred on a point of law by finding that the Appellant had not demonstrated any prejudice yet it was mandatory in terms of the applicable Code that the decision in question be communicated within three days.  The Appellant was clearly prejudiced by the delay.

The Appeals Committee grossly misdirected itself on the facts as to amount to gross misdirection on law when it found that the Appellant did not argue that the witnesses called were not credible, yet the Appellant clearly challenged the credibility of the witnesses called.

The Appeals Committee grossly misdirected itself on the facts when it dismissed the Appellant’s grounds of appeal 3 and 4 in a manner that clearly shows lack of appreciation of the facts surrounding the Appellant’s defence to the charges.

The Appeals Committee grossly misdirected itself on the law by failing to uphold the Appellant’s legal defence to the charge which defence was simply that the Respondent could not discipline the Appellant on a misconduct it had induce or created due to the inadequate controls.

The Appeals Committee grossly misdirected itself on the facts when it upheld the penalty meted out on the Appellant without investigating the Appellant’s mitigatory factors especially that the Respondent had relied on a misconduct it had induced via inadequate controls.

On these grounds the Appellant prayed that he should be reinstated without loss of salary and benefits.  In the event that reinstatement is no longer possible that the Respondent be and is hereby ordered to pay damages in lieu of reinstatement.

The Respondent in response submitted that,

Appellant was informed of the verdict at the close of the hearing on 27 November 2015.

The Appellant was not prejudiced by any alleged delay in delivering the written determination

The evidence of the Complainant’s witnesses was not sufficiently controverted.

The complainant’s witnesses were credible.

Any alleged inadequacy of controls was not a proper defence to the charges that the Appellant was facing.

The Appellant was the last person to be seen with the missing tonners and that the tonners and that he did not hand them over the people he alleged he had given them to.

It was improbable for all the witnesses from different departments to team up against the Appellant.

The stealing of tonners was systematic, properly and carefully executed and was not a once off incident.

The penalty by the Disciplinary Committee met the justice of the case.

The penalty of dismissal was consistent with Section 18.6 of the Respondent’s Code of Conduct.

On these grounds the Respondent prayed that the appeal should be dismissed with costs.

It is common cause that,

Tonners were collected from stories and they were not received in any department on any of the said occasions despite different department being involved.

Appellant denied all the charges and claimed that he had signed and collected all the cartridges he collected as instructed and approved by his supervisors under a confused procedure of accessing stationery from stores.

What is to be decided is whether

Communication of the verdict outside of time frame stipulated in the Code of Conduct vitiates and nullifies proceedings.

The Appeals Committee can be faulted for finding that the testimony of the witnesses was not false.

The Respondent’s evidence was on a balance of probabilities sufficient to tip the scales against the Appellant.

The misconduct committed by the Appellant warranted a penalty of dismissal.

Communication of Verdict

The Appeals Committee in its findings stated that on 27 November 2015 the Appellant was informed verbally that above the outcome of the hearing.  The minutes on record show that the hearing was conducted from 7 - 9 September 2015.  The minutes of the hearing were signed from 17 to 14 September 2015.  This could have been a typing error.  However the Appellant stated that the verdict was supposed to be delivered within 3 days but it was delivered two days out of time stipulated by the Code of Conduct.

In the case of Stella Nhari v Zimbabwe Allied Banking Group SC 51/14 it was held that,

“Attention should however be drawn to the decisions in Nyaru v Secretary for Public Service Labour and Social Welfare & Anor 1997 (2) ZLR 516, 522-523 A-B and Posts and Telecommunications Corporation v Zvenyika Chizema SC 108/04 which suggests that delay alone cannot justify reinstatement and that delay merely gives the aggrieved party the right to the remedy of a mandamus to enforce due compliance with any time limits.”

This case clearly shows that the delay could not nullify the hearing and the verdict.  If he was not happy with the delay his remedy was to expedite the release of the decision.

Coming on to the credibility of the witnesses the Appellant never argued before the Disciplinary Committee that the witness’s story was not credible.  The witnesses were from different departments and there is no way they could connive to falsely implicate him.  Mrs Hwingire who had been with the institution for 3 months would also have no reason to falsely implicate the appellant.  Appellant admitted that he collected the tonners.  Had it been that he delivered them to the departments they would have noticed that the tonners were of incorrect specifications for the printers in the departments.  This is a clear sign that the tonners were collected but were never delivered.

Since the Appellant is alleging that the witnesses were not credible it was his duty to prove in what way they were not credible.  This is corroborated by the case of Astra Industries Ltd vs Peter Chamburuka SC 27/12 where it was held that,

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

The manner in which the appellant executed the offences was systematic and was sufficient to tilt the scales against the Appellant.

In the case of Olivine Industries Pvt Ltd vs Shonhiwa & 2 ORS SC 18/15 Gwaunza JA with regards to circumstantial evidence had this to say,

“This being a civil case, it is important to note that the inference sought to be drawn from circumstantial evidence, while it must be consistent with all proved facts, need not be the only reasonable inference.  This point is stressed in the South African case of AA Onderlinge Assuarance Bplc v De Beer 1982 (2) SA 603 where it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference: he will discharge his burdens of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inference.”

The evidence surrounding this case shows that the Appellant stole the tonners because after collecting them from stores he never delivered them.

Furthermore the misconduct committed by the Appellant warranted dismissal because dishonesty goes to the root of the contact.  This was corroborated by the case of DHL International (Pvt) Ltd v Kevin Tinofireyi SC 80-14 which stated as follows;

“As Mr Zhou put it, the Labour Act contains no provision which either expressly or by implication purports to alter the common law principle that an employer has a right to dismiss an employee following conviction for a misconduct of a material nature going to the root of the employer and employee relationship.  A code of conduct cannot alter or abrogate a principle of the common law.  It does not matter that the code of conduct is a product of an agreement.”

In view of the foregoing therefore this court finds that the appeal lacks merit.

Accordingly it is ordered that

The appeal be and is hereby dismissed with costs.

Mhishi Legal Practice, appellant’s legal practitioners

Kantor and Immerman, respondent’s legal practitioners