Lucia Yamu v Delata Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/272/2013
HARARE, 13 JUNE 2013
CASE NO.
JUDGMENT NO.LC/H/272/2013
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/272/2013

HARARE, 13 JUNE 2013			          		CASE NO. LC/H/219/2011

In the matter between

LUCIA YAMU				-		Appellant

And

DELATA BEVERAGES			-		Respondent

Before The Honourable President - B.T. Chivizhe

For Appellant 	-	Mr E. Maponga (Unionist)

United Food and Allied Workers’ Union of Zimbabwe

For Respondent	-	Mr K. Ncube (Legal Practitioner)

Gill, Godlonton and Gerrans

CHIVIZHE, B.T.:

The appeal is against the determination by the Respondent’s Works Council handed down on 24 March, 2011 which upheld earlier findings by Respondent hearing committee.

The background facts to the matter are as follows;

The Appellant was employed by the Respondent on the 1st of July, 2004 as the Administration Clerk.  In 2005 she was transferred to CCD to work as a Cashier.  From 2007 to 2009 she was again transferred to work as CIT Cashier.  In 2009 she was re assigned to do stock controller duties.  She was on 28 December, 2010 notified to attend a disciplinary hearing in order to reply to charges of Charge 1 1.3 falsifying certificates, personal or company documents; Charge 2 Neglect of duty, Failure to perform one’s job at all showing no care whether the job is done or not, or enjoying oneself in unlimited activities during working hours.  The allegations were that in the course of executing her duties Appellant had on the 14th and 16th of November 2010 falsified data captured in the system, on the 15th of November, 2010 she did not count product 2010 but captured 352 cases in the system and etc.

On Charge 2 the allegation was that she failed to print daily generic reports from 4th December onwards.  In her defence before the disciplinary authority Appellant claimed fatigue etc.  The Appellant was however found guilty on both charges and consequently a dismissal penalty with effect from 11 January 2011 was imposed.  The Appellant exercising her rights under the code appealed to the second level appeal authority but with no success.  She then appealed to the Works Council.  In its determination the Works Council dismissed all her grounds of appeal and upheld the earlier decision and determination.  Aggrieved the Appellant then lodged the present appeal with the Labour Court.

The grounds of appeal are as follows;

The penalty of dismissal was harsh in that;

Disciplinary action should, in first instance, be educational and then corrective.  Punitive action should only be taken when the said earlier steps have proven ineffective.

Why the employer failed to charge, male stock controllers and only targeted ladies.  In terms of the law, similar circumstances should be treated equitably through the award of similar penalties allowing for mitigation and aggravating circumstances.

It is not true that I was co-operating because at one time I asked Mr. Mavura to arrange training so that I could get to know system of generic reports but did nothing.

The penalty was too harsh because the company was not prejudiced of anything.

If one asked to work 24 Hours without rest what do you expect.

I find it convenient to address grounds 2, 3, 5 initially.  The grounds numbers 1 and 4 which touch on penalty will be addressed as the last issue.

The Appellant alleges that the Respondent did not charge Male Stock Controllers Respondent only targeted ladies.  She further submits that the employer should apply the parity principle in imposing penalty.  I have had to dismiss this ground of appeal.  The Appellant has not taken the court into her confidence by showing that the Respondent discriminated against female stock controllers when it decided to level charges.  She has not even suggested the names of the male Stock Controllers who were not charged but yet were guilty of same transgressions.  It is clearly improper for the Appellant to raise allegations of victimization on the basis of gender without substantiating them.  I would therefore dismiss ground of appeal number 2.

In her third ground of appeal Appellant clearly admits her weaknesses that she was not performing to scratch.  She contends however that she should have been sent for further training to enhance her skills.  The record shows that in her appeal hearing the Respondent was able to show that Appellant’s supervisor had coached and assisted Appellant on the execution of her duties.  The Appellant had also been doing the Stock Controller duties for more than a year.  Clearly the Appellant failed to meet the standards as set by the employer.   She cannot succeed on this ground.

In ground number 5 Appellant alleges that she was working long hours and therefore she committed mistakes due to fatigue. It is clear from the record that this ground was also raised before the works council.  That body dismissed the ground on the basis that the errors she committed were not random errors that would be consistent with fatigue, exhaustion etc her errors on the contrary were deliberate and meant to conceal variances that could arise where correct figures to be inserted.  I find no compelling reason why this court should find otherwise.

The last issue concerns penalty.  The Appellant submits that the penalty of dismissal was harsh in the circumstances.  The Respondent on the other hand submits that the misconduct was serious and amounted to a repudiation of her contract.  The charges Appellant was facing were serious charges viz falsifying company documents and neglect of duty.  She was capturing figures which were different from the ones which were recorded on the manual.  She also failed to print daily generic reports from 4th of December, 2011.  The only mitigating factor raised by the Appellant was that she was fatigued.  That factor was sufficiently dealt with by the Works Council.  The aggravating factors of this case heavily outweigh the mitigating factors.  As the charges involved dishonesty Appellant’s conduct clearly undermined the employer/employee relationship.  The dismissal penalty was clearly justified.  There are no grounds on which this Court could interfere with the penalty imposed.

In the circumstances the appeal, being devoid of merit, is dismissed with no order as to costs.