Masauso Banda v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/359/2016
HARARE, 02 NOVEMBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/359/2016

HARARE, 02 NOVEMBER 2015			           CASE NO. LC/H/881/14

AND 10 JUNE 2016

In the matter between:-

MASAUSO BANDA						Appellant

And

DELTA BEVERAGES					Respondent

Before Honourable L. Kudya, Judge

For Appellant		Mr T. Marume (Legal Practitioner)

For Respondent		Mr G. Chingoma (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the works council appeals committee which upheld appellant’s dismissal following fraud allegations in breach of the respondent’s code of conduct.

The background facts are that the appellant who was in the respondent’s employ as a senior auditor had occasion to be brought before the respondent disciplinary committee facing fraud allegations in contradiction of the respondent Code of conduct.  He was said to have during the cause of his duties received money from respondent for his accommodation at various lodges and hotels during his tour of duty.  He is said to have acquitted that money by submitting receipts for such accommodation which receipts were disowned by the relevant hotels and lodges.  He was found guilty of fraud and dismissed from employment following the disciplinary hearing into his matter.  He appealed internally without success and ended up at the Labour Court on the instant appeal which is the subject of this judgment.

His appeal grounds were:

Appeals authority erred at law by not realising that the 1st level disciplinary panel was not properly constituted since such proceedings had to be initiated by appellant’s immediate supervisor yet that was not done in the instant case.  Such was a procedural irregularity that rendered the whole proceedings null and void.

Appeals committee erred grossly by upholding the disciplinary committee’s  verdict of fraud yet the essential elements of fraud were not satisfied and where respondent had not investigated the internal checks of all the concerned hotels to rule out system manipulation of the same.

Appeals authority erred at law to arrive at dismissal penalty yet the misconduct was not proved satisfactorily at law.

Disciplinary and appeals committee erred by turning blind eye to mitigation presented for appellant and militated against imposition of dismissal penalty on the appellant.  His mitigation was not controverted and nothing was submitted in aggravation.

In the result the appellant prayed that the guilty verdict and dismissal penalty be set aside and that the appeal succeed with costs thus setting aside the decisions of the disciplinary and works council appeals committee and that appellant be reinstated with full pay and benefits.

In response respondent maintained that:-

This is not appeal ground but review, as such it is improperly pleaded and need not be entertained in appeal proceedings.  Appellant did not challenge the constitution of the hearing committee, said he was happy with it hence he is estopped from raising the issue now.  He also does not allege that he was prejudiced by the improper constitution of the committee.

All the essential elements of fraud were satisfied in the matter.  Evidence on record showed that the invoices and receipts submitted by appellant that he had stayed at the various hotels were not authentic.  Same were disputed by the hotels and lodges.  Appellant committed fraud by alleging that he slept at the various hotels when he had not.  The possibility of the numerous and different hotels employees tampering with the invoices and receipts is improbable far-fetched and speculative.  There was no evidence to suggest that the employees of any of the various hotels could be accountable for the differences in the appellant’s documents the genuine and ones obtained from the hotels

Appellant was a senior auditor and had been convicted of fraud including serious dishonesty there was no room for his reinstatement.  Dismissal was justified.  There is no room to interfere with the penalty as it was not grossly unreasonable.  It is strange that 6 counts of misrepresenting to the employer that he had slept in various hotels when all hotels disputed that fact.  Chances of all the hotels conniving to speak against him are next to nil.  They simply have no motive for doing so.  Appellant is simply trying to escape the consequences of his misconduct.

In the result the respondent prayed for the dismissal of the appeal with costs.

It is common cause that the documents which appellant tendered to acquit the cash he had received from the respondent were disowned by the various outlets where he claimed he had obtained accommodation services during his tour of duty. The only critical question in the whole matter is whether the appeals body and the disciplinary body exercised their discretion irregularly by accepting and finding that appellant had acted with fraudulent intentions and occasioned loss to the respondent as alleged.

Each of the appeal grounds is dealt with below.

Ground 1

Respondent correctly observed in respect of this ground that the ground was a review ground which was improperly brought by way of appeal.  It is patently clear that issues of compression of the committee are purely issues of process and used to be pleaded by way of review.  For want of proper appeal ground in respect of ground 1 the appeal should fail.  Even assuming that the ground had been pleaded properly its success rate is still low.  This is so because one of the critical components of a reviewable issue is that there has to be demonstrable prejudice.  See Nyahuma vs Barclays Bank (Pvt) Ltd 2000(2) ZLR 445.  Applying the Nyahuma (Supra) principles to the facts of the case at hand, it is clear that no evidence of prejudice has been demonstrated.  To that end the ground should fail.

It is also worth noting that if the record of proceeding filed of record is anything to go by the appellant agreed to the composition of the disciplinary panel showing that he was satisfied with the same.

In the result the ground is without merit and it should fail.

Grounds 2 and 3

These are dealt with at once as they speak essentially to the same issue.  The issue here is about the sufficiency of evidence tendered to found the guilty verdict in appellant’s case.

The main argument advanced by the appellant is that since fraud by its very nature is a criminal law construct the appellant’s guilt should have been proven beyond reasonable doubt. The cases cited by the appellant are without doubt and since they are apparent on the face of the record they do not deserve reinstatement as doing such would be an exercise in futility.

It is however worth nothing that the code which appellant breached spells out clearly the conduct which fits into the fraud definition. It is apparent from facts of the matter that they receipts tendered by the appellant did not tell a correct story of what he did vis his accommodation during his tour of duty.

The suggestion that the respondent should have gone further to investigate the systems of all the various hotels to check for possible loopholes vis the documents is without foundation and lacks seriousness to say the least.  It was enough for the hotels to disown the said documents and show what they claim to be their own genuine documents. Whether the documents hailed from front office or from senior management of the hotels and lodges concerned is not or critical concern.  This is so because either way the documents came from the hotels or lodges which the appellant claimed he had received services from.  It is the court’s view that the appeals committee and the disciplinary committee exercised their discretion well by finding that the appellant’s guilt had been properly proven.  To that end there is no basis for interfering in the findings in relation to these grounds.  The appeal based on these 2 grounds lacking in merit should also fail.

Ground 4

Issues of penalty have repeatedly been held to be in the discretion of the employer see Nyawasha v Circle Cement SC-60-03.  In the case at hand it is apparent that the infraction complained of was one of dishonesty and perpetrated by a senior officer.  No amount of mitigation could tilt the scales in favour of handing down on non-dismissal penalty.

The infraction on face of the facts went to the root of the employment relationship and the respondent cannot be faulted for meting out a dismissal penalty.  There is nothing in all the pleadings demonstrating that the discretion on penalty in this case was irregularly exercised.  The ground being without merit should also fail.

Ultimately it is clear from the above analysis that the appeal as a whole is without merit.  It should accordingly fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be hereby dismissed.

Each party to bear own costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Dube, Manakai & Hwacha, respondent’s legal practitioners