OK Zimbabwe v Eugene Rukweza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/118/2013
HARARE, 18 MARCH 2013
CASE NO. LC/H/191/2012
JUDGMENT NO.LC/H/118/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/118/2013

HARARE, 18 MARCH 2013				CASE NO. LC/H/191/2012

In the matter between

OK ZIMBABWE				-		Appellant

And

EUGENE RUKWEZA			-		Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mrs R.T.C. Matsika – Legal Practitioner

Wintertons Legal Practitioners

For Respondent	-	Mr E. Rukweza – In Person

CHIVIZHE, B.T.:

The Respondent worked for Appellant as a Till Operator.  He was dismissed from employment with effect from 29 October, 2010 on a charge of UNSATISFACTORY WORK; PERFORMANCE.  It was Respondent’s case that firstly, on the 11th of September, 2010 he took an orange drink and vanilla biscuits to another till operator, Joseph Dube.  Although the till operator rang the goods on his till, the Respondent did not pay for the goods.  Secondly, on several occasions between the 23rd September, 2010 and 27th September, 2010 the Respondent incurred shortages amounting to $131, 77 as follows;

22/09/10						$15, 09

23/09/10						$61, 66

24/09/12						$19, 48

25/09/12						$16, 26

27/09/12						$19, 28

$131, 77

The Respondent was found guilty of the charges by Disciplinary Committee and consequently dismissed from employment.  He lodged an appeal against the decision to dismiss him to the Local Joint Committee of the National Employment Council.  His appeal was granted and the Respondent was directed to reinstate him without loss of salary and benefits.  The Appellant then appealed to the Negotiating Committee of the NEC and the appeal was dismissed.  The Appellant has now lodged the present appeal with this court.

The appeal has been noted on the following grounds;

“The National Employment Council’s Negotiating Committee erred in its interpretation of the charge.”

In its decision, the Negotiating Committee came to the following conclusions that

The Appellant had erred considering the cumulative amount of till shortages that is $131,77 in charging the Respondent

The Appellant should have instead charged Respondent with unsatisfactory work performance under Group 1 and Group 2 offences

The Appellant should also have work standards which stipulate the amount of till shortage in relation to the different offences under the Code.

The Appellant’s submission is the discretion as to the particular offence with which to charge an employee lies with the employer.  In this case Respondent had incurred a shortage of $131, 77 over a period of 5 days.  On one day alone, 23rd September he incurred a shortage of $61, 66.  It was Appellant’s submission that on the basis of the high shortage and the frequency the Appellant was entitled to charge Respondent with a Group 4 offence rather, than a Group 1 or 2 offence as determined by the Negotiating Committee.

As the offence was also very serious, dismissal was the appropriate penalty in the circumstances.  The Appellant also did not agree with Local Joint Committee finding that the Appellant has failed to prove the charge of lack of skill in the absence of Work Standards and also that the Collective Bargaining Agreement for the Commercial Sector permits an employer to recover a shortage incurred by a cashier by making deductions from his salary the employer’s precluded from dismissing the employee for shortage.  The court was referred to the case of Muchenje vs Bata Shoe Company 2003 (2) ZLR 462 (S).

The Respondent as a self-actor was at pains to submit his response to the issues raised in this appeal.  He however seemed to concur with the findings by the Negotiating Committee in regards the choice of the charge.  From his oral submissions he took issue with the fact that he had not in his view been adequately trained as a till operator.  It was also his view that the employer should have given him a warning as penalty rather than the maximum penalty under the Code.

The offence under Group 4 the Respondent was charged which is defined as follows; “Unsatisfactory work performance, lack of skill which the employee expressly or by implication holds himself out to possess.”  The offences that were referred to by the Negotiating Committee under Group 1 or Group 2 are defined as follows; The Group 1 offence under “Unsatisfactory Work Performance” is defined merely as “carelessness” or “inefficiency.”  On the other hand the Group 2 offence which appears under “Unsatisfactory Work Performance” is defined as follows;

“Negligence, failure to exercise proper care and regard in the disciplinary of one’s duties to the extent that tasks have to be repeated or equipment or persons are at risk of damage or injury.”

It is clear from an analysis of the facts in the record that Respondent was properly charged by the Appellant.  As a till operator Respondent he was expected to have certain basic skills such as the ability to count money and to ensure that the correct change is handed out by observing the monitor of the till.  The Respondent‘s defence in the disciplinary hearing was that he sometimes gave customers more change than what is due hence the shortages incurred.  When one considers the substantial amount in shortages as well as the frequency with which those shortages occurred, it becomes clear that the Respondent lacked the skill as a till operator.  This was also not a single till shortage but frequent till shortages over a short period.  Clearly the charges under Group 1 and Group 2 offences were inapplicable in the circumstances.

The Negotiating Committee in its decision also referred to the need for work standards.  The Local Joint Committee had also come to a similar conclusion.  The Appellant’s submission was that this was improper.  The Respondent had no submissions on the point.  Work standards are written standards that are applicable to till averages and shortages.  The standards form part and parcel of the employment contract.  In the absence of any evidence from the Respondent as to whether there were written standards applicable to till averages and shortages at the material time I am unable to determine the point.  I am satisfied however on the basis of the facts in the record that the Respondent indeed showed lack of skill and was therefore correctly convicted on the charge.

The Respondent has raised the issue of the inappropriate penalty.  The offence of lack of skill is a very serious offence which attracts a penalty of dismissal on the first breach.  The fact that the employer was entitled to recover the shortage incurred under the provisions of the Collective Bargaining Agreement would not, as submitted by Appellant, preclude the employer from dismissing the employee for the shortage.  The Appellant has aptly referred to the case of Muchenje vs Bata Shoe Company 2003 (2) ZLR 462 (S).

In the light of my findings and reasons therefore, I find that the appeal succeeds.  The decision by the Negotiating Committee is hereby set aside and substituted with an order as follows;

The appeal is allowed.

The Respondent remains dismissed from employment with effect from 29 October 2010.