N. Richards (Private) Limited v Lucky Budiveya and 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/04/2013
MASVINGO ON 18 JULY, 2012
CASE NO. LC/MS/14/2011
AND 23rd MAY, 2014
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MS/04/2013

MASVINGO ON 18 JULY, 2012  		      		CASE NO. LC/MS/14/2011

AND 23rd MAY, 2014

In the matter between

N. RICHARDS (PRIVATE) LIMITED					APPELLANT

AND

LUCKY BUDIVEYA AND 4 OTHERS					RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Applicant   : Ms W.L. Chirongoma – Legal Practitioner

For The Respondent	: Mr J. Gwaradzimba – Trade Unionist

CHIVIZHE, J.

The appellant is challenging the decision of the Negotiating Committee dated 22 March, 2011 which decision upheld an earlier determination by the Mashonaland Local Joint Committee to reinstate the five (5) respondents without loss of salary and benefits from the date of dismissal.

The material background facts to the matter are as follows;

The five (5) respondents were all employed by the appellant in various capacities that included a shop salesmen, a storekeeper and a till operator.  They were all employed to work within one of the appellant’s stores.  During the period 8 April 2010 to 19 August 2010 two stock counts were done and a net shortage of US$7 211.75 was discovered.  It is in dispute whether the five respondents were present and participated during the stock take.  The five respondents were then placed on suspension without pay facing allegations of violations of provisions under Group IV of the relevant Code of Conduct viz.

Misuse of employer’s property – wilful or intentional loss of employer’s property regardless of the value of such property.

Unsatisfactory work performance – lack of skill which the employee expressly or by implication holds out to possess.

Dishonesty and other related offences – unlawful taking of property with the intention of permanently depriving the company of the use of such property.

Knowingly aiding or assisting the unlawful taking of property stated above.

The respondents appeared individually before a disciplinary authority and were all found guilty of the charges.  They were consequently dismissed with effect from the date of suspension through via letter dated 25 October 2010.  Aggrieved by the decision the respondents appealed to the Manicaland Local Joint Committee which body though its decision dated 19 January 2011 upheld their appeal and directed appellant to reinstate respondents without any loss of salary and benefits from the date of dismissal.  Dissatisfied the appellant lodged an appeal with the Negotiating Committee.  That body in upholding the decision of the Manicaland Local Joint Committee came to the conclusion that the appellant had failed to prove its allegations against the respondents.  The appellant was ordered to reinstate the respondents without any loss of salary and benefits from the date of dismissal.  The appellant still aggrieved then lodged an appeal with the Labour Court.

The grounds of appeal are outlined to be as follows;

The Arbitrators erred by awarding a judgment in favour of the respondents when the same Arbitrators held one of the employees liable on the same facts.

The Arbitrators erred at law by making a finding that there was no contract of employment.

The Arbitrators erred at law by making a ruling that appellant had failed to prove his allegations against the respondents whereas the dismissals were procedurally and substantively fair.

The Arbitrators erred by making a finding that no evidence was produced directly each respondent to the US$7 211.75 stock shrinkage.

The Arbitrators erred at law by awarding reinstatement to the five respondents without loss of salary and benefits from the date of dismissal.

The present case raises a novel concept one which the Labour Court has not had occasion to deal with.  It raises the issue of “team misconduct” a term that has been coined in the South African jurisdiction but has no equivalent in our jurisdiction.  The term refers to a situation where the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible.  According to the author Grogan in his book at page 310 the employees are dismissed because, as individual components of the group, each has culpably failed to ensure that the group complies with a rule or attains a performance standard set by the employer.  The term “team misconduct” is normally used in relation to case involving stock loss as in casu.

The critical findings by the Negotiating Committee were that the appellant had failed to produce evidence to show what each respondent had done in respect of the charges levelled against them.  No evidence was produced to directly link each respondent to the amount of US$7 211.75 stock shrinkage; no evidence was produced to show that each of the five respondents was responsible for stock.  The appellant has taken issue with the finding by the Negotiating Committee that the employer had conducted “mass” hearings where similar facts had been used in respect of all the five respondents and they were collectively found guilty on the charges.  The appellant in its appeal argues that it was entitled to levy the charges collectively against the respondents as they were all responsible as a collective for receiving stock, storage of stock and dispatch.  By failing to disclose to the employer how the shortage had been incurred it indicated a collective intention to deprive the employer of cash and goods.

It was appellant’s further submission before the court that although the respondents were all engaged on verbal contract they each were aware of their duties and responsibilities and they had cumulatively failed in those duties and responsibilities to control stock loss.  The respondents showed a collective responsibility in the discharge of their duties in the store.  The appellant had conducted two stock count in which the respondents were involved and participated in.  The charges levelled against the respondent were raised on the basis of circumstantial evidence that pointed to, in the absence of break in or theft in the store or a reasonable explanation from them, a collective conduct by the respondent to either steal either cash or the goods in the store.  In the absence of dishonesty it was appellant’s submission the respondent individually displayed unsatisfactory work performance by failing to control the stock loss.  The respondents dismissal was therefore justified as their actions caused considerable loss to the appellant.

The respondents’ position was that the respondents were contrary to the provisions in the relevant Collective Bargaining Agreement, employed on verb al contracts.  They were not given defined job description and responsibilities.  Section 12(2) of the Labour Act [Chapter 28:01] also requires each employee to be given upon engagement an occupation and a grade commensurate with the work.  It was also respondents submission that the stock count was not done properly as the appellant presented different figures before the bodies a quo that is US$12 866.24 before the Manicaland Local Joint Committee and US$7 211.75 before the Negotiating Committee.  The stock count was held in respondents’ absence.  It was respondent’s further submission that the appellant had failed to prove direct linkage of the respondents to the shrinkage/stock loss as shrinkage can be attributable to many factors.  The respondent held different position and they could not be collectively charged with similar offences.  The respondents have also failed to prove the three charges levelled against each of the respondents.

The main issue raised by the appeal is whether the Negotiating Committee erred when it came to a conclusion that the appellant had conducted “mass hearings” where similar facts had been used in respect of all the five respondents and they were collectively found guilty of the charges.  It has to be pointed out from the outset that in the present case the respondents were not arraigned before the disciplinary hearing authority at the same time and then asked to plead as was the case for an example in the matter of Cargo Carriers (Pvt) Ltd vs. Zambezi and Others 1996(1) ZLR 613(S).  In this case the respondents were arraigned before the disciplinary authority on different dates.  The investigation conducted by the employer found that the five respondents were responsible for the loss in stock and hence each was individually charged for the three violations under the Code.

The relevant Code that is the NECCS Employment Code of Conduct does not in my view provide for “mass hearings” and much less so for “team misconduct”.  In Part II thereof it provides for individual investigation by designated officer where an “employee” is suspected to have committed an offence.  The Designated officer is required to gather and record all evidence; grant an opportunity to the employee to present his/her case; in conducting the investigation observe the principles of natural justice; prepare a report and give a decision within 14 days of receipt of the case.  Clearly if the intention had been for the Code to cover situations of “team misconduct” the officer would have provided for the Designated Officers to investigate where an “employee” or “employees” were suspected of having committed an offence.  As presently couched the Code of Conduct does not in my view provide for “mass hearings” or “team misconduct” for that matter.  In the circumstances the Negotiating Committee did not err.

There is one further reason why the charges levelled against the respondent are not sustainable.  The appellant by its own admission had not reduced the individual contract of the five respondents into writing.  Although the respondents were engaged in different capacities for example Lucky Budiveya, Lyman Sithole and Musingashare Musingashari were employed as shop salesmen and Lawrence Zvinoreva as shopkeeper whilst Amos Tasara was engaged as a till operator the fifth respondent had no clearly defined job description as required by Section 12(2) of the Labour Act [Chapter 28:01].  The appellant argues that they were each given specific responsibilities but if these were not reduced into writing it was practically impossible for the appellant to then level the charges against any one of the respondents.

For an example, how could the employer prove that the two salesmen had misused the employer’s property?  What were the specific responsibilities of the salesmen and how had each of them misused the employer’ property.  Which property was misused and how was it misused in the line of those salesmen’s responsibilities?  This much is not clear from the record.

The same can be said of the two other charges.  The employer found each of the five respondents guilty of unsatisfactory work performance that is lack of skill.  How was the lack of skill exhibited in respect of each of the five respondents taking into account that they occupied different positions in the store?  How had the lack of skill of each resulted in the shrinkage/loss suffered by the appellant?

In order for the charges of dishonesty to be sustained the employer had to prove that each of the five respondents had unlawfully deprived the appellant of its property.  The respondents’ submission is that all the five respondents were responsible for receiving stock storage and dispatch.  The respondents did not at any stage report a break in but there was shrinkage in the stock.  The fact that they failed to raise alarm to the employer of this fact indicated a collective intention to unlawfully deprive the employer of goods and cash.  I was not persuaded by this argument.

In the circumstances it is the Court’s finding that;

The decision of the Negotiating Committee dated 22nd March 2011 be and is upheld.

The Appellant is directed to reinstate the (5) five without loss of salary and benefits from the date of unlawful dismissal.

In the event of failure to reinstate the Appellant shall pay damages in lieu of reinstatement the quantum of which is to be agreed upon between the parties failing which either party may approach the Court for quantification.

Chihambakwe, Makonese & Ncube Legal Practitioners, for the appellant.

Commercial Workers Union of Zimbabwe, for the respondents.