Loice Chipfumbu v Windmill (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/292/2013
HELD IN HARARE, JUNE 19, 2013
CASE NO. LC/H/908/2012
In the Matter Between
JUDGMENT NO. LC/H/292/2013
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/292/2013

HELD IN HARARE, JUNE 19, 2013		CASE NO. LC/H/908/2012

In the Matter Between

LOICE CHIPFUMBU				     		APPELLANT

And

WINDMILL (PVT) LTD					RESPONDENT

Before The Honourable L. Matanda-Moyo         : President

For The Appellant     		: Mr G. Pendei (Trade Unionist)

For The Respondent  		: Ms N. Masunda (Legal Practitioner)

MATANDA-MOYO L.,

This is an appeal against the respondent’s decision, dismissing appellant from employment on a charge of fraud.

The brief facts are that appellant was employed by the respondent as a loss control assistant.  Her duties involved minimising the exposure of respondent to losses.  On 26 September 2012 appellant applied for educational assistance for her child, Result, in the sum of $225.  The sum was for third term of 2012.  Appellant attached an invoice from the school for $225.  A visit by the respondent at the school showed that third term fees were $75.00.  The sum of $225 included fees for Baison Chipfumbu and Lephon Nkomo.  Baison and Lephon were both not registered to receive education assistance from respondent.  As a result appellant was charged with fraud in contravention of respondent’s Code of Conduct.  Appellant appeared before a disciplinary hearing which found her guilty and dismissed her from employment.  Appellant appealed to the Chief Executive Officer who dismissed her appeal.  Appellant then lodged the present appeal.

Appellant’s grounds of appeal are as follows:

“1.	The Appeals Officer erred in not finding that the Appellant did not commit the offence levelled against her.

2.	The appeals officer erred in not finding that the appellant did not defraud and neither did she have the intention to defraud the respondent.

3.	As a result of the respondent’s failure to appreciate the above, the respondent erred in finding dismissal as an appropriate penalty if any penalty was warranted from the Appellant’s conduct.”

Appellant prayed that she be reinstated to her former position without loss of salary or benefits.

For purposes of this determination I shall proceed to deal with the first and second ground of appeal together.  The appellant submitted that the respondent erred in confirming the conviction without evidence on a balance of probabilities.  Appellant submitted that fraud is defined under paragraph 5 of the code as;

“Theft or Fraud:

An employee commits theft or fraud if he/she dishonestly or unlawfully takes company property or property belonging to a third party with an intention of permanently depriving the legal owner of his/her property.  Knowingly receiving stolen property is also considered as theft or fraud.”

Appellant argued that because she did not receive the educational assistance, the offence of fraud was not committed in terms of the code.  The offence could only be committed on receipt of the funds.  She argued that she was entitled to an acquittal as it is not the function of an appeal court to substitute an appropriate offence.

Respondent on the other hand argued that the offence of fraud is loosely defined in the respondent’s code of conduct.  Such definition does not take away the common law definition of fraud.  Respondent’s counsel referred me to the case of Attorney General v Paweni Trade Corp (Pvt) Ltd and Others 1990(1) ZLR 24(S) where the Court held that a person is guilty of fraud even if the party to whom the false representation was made did not act on it to his prejudice.

In casu appellant admits making the false representation.  It is common cause that respondent did not act on the papers after its investigations proved that the representations were false.  I am satisfied that respondent managed to prove the offence of fraud on a balance of probabilities.  The fact that the appellant did not receive the money is immaterial.

Appellant submitted that the penalty of dismissal was harsh in the circumstances.  I do not agree.  Fraud is an offence which involves dishonesty.  Once trust is lost between an employer and employee then dismissal becomes appropriate.  An offence involving dishonesty goes to the root of the employment contract and dismissal has been upheld by the courts even for first offenders.  See Standard Chartered Bank v Mapuka S 125/04.  The Supreme Court has also found in Mashonaland Turf Club v George Mutangadura SC/5/12 that there is no basis for an appeal court to interfere with the penalty of dismissal imposed by an employer upon an employee for an act of misconduct that goes to the root of the employment contract unless it is shown that there was gross misdirection.  I am satisfied that there was no gross misdirection by the respondent in imposing the penalty of dismissal.  See also Masiyiwa v TM Supermarket 1990(1) ZLR 166(S) where it was held that an appeal court is not entitled to substitute its own discretion for that of the employer where a proper ground for dismissal has been established.  Respondent also prayed for costs on a higher scale.  Respondent argued that this appeal was frivolous and vexatious and entitled respondent to costs on a higher scale.  I do not agree.

Accordingly, the appeal fails and is dismissed with no order as to costs.

ZCPAWU Trade Unionist, Representatives for the Appellant.

Scanlen and Holderness, Legal Practitioners for the Respondent.