Patience Chamangira v Zimphos

IN THE LABOUR COURT OF ZIMBABWE                           JUDGMENT NO. LC/H/165/2013
HELD AT HARARE ON 07 MARCH, 2013                                  CASE NO. LC/ H/570/2011
In the matter between


PATIENCE CHAMANGIRA                                   –                Appellant
And

ZIMPHOS                                               –                Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant         -Miss M.Kunende(Legal Practitioner)
For Respondent        - Mr E.J.Moyo (Legal Practitioner)


MATANDA-MOYO, L.

      On the date of hearing I dismissed the appeal with no order as to costs. I

indicated that reasons would follow. These are they;

This is an appeal against the decision of the Disciplinary and Grievance

Committee which confirmed Appellant’s conviction and dismissal from

employment on contravening section 5.7.1. (ii) of Chemplex Corporation

employment Code of Conduct, that is to say;


      ‘any gross act, conduct or omission not covered in this code which is inconsistent with the
      express or implied conditions of the employee’s contract’


The allegations were that;



      1) Appellant failed to acquit cash of $75 that she took from the cash

          office on 26 October 2009. She only did so after 88days.
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      2) Appellant took long to acquit cash received from cash office resulting

         in the cashier failing to acquit cash advance withdrawals by the

         Appellant. Appellant took 51days to acquit $20-00 she received from

         cash office.

      3) Appellant failed to return $180-00 change for $300 she took for lunch

         on 16November 2009.

      4) Appellant on 22July 2009 made an unauthorized payment of $15-00 to

         Mai Anesu; and

      5) Appellant awarded herself an unauthorized benefit for newspapers

         thus prejudicing Respondent on the value of those newspapers.

         Weekend newspapers were delivered to Appellant’s house.



      Aggrieved by such finding Appellant appealed to this court on the

following grounds;

      1) That the Respondent erred in pre-deciding the matter. The decision

         to dismiss Appellant was predetermined before the hearing.         The

         Respondent also failed to hear the matter within 14days of notification

         of proceedings against the Appellant.

      2) That the Respondent erred in failing to give adequate hearing notice

         upon the Appellant. As a result Appellant did not have adequate time

         to prepare her defence.

      3) That the Respondent erred in accepting evidence from accomplices.

         The evidence from the cashier should have been treated with caution.

      4) That the Respondent erred in refusing Appellant access to the office

         files resulting in Appellant failing to adequately defend herself. The




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         Human Resources Manager interfered with the case and influenced

         the decision to dismiss the Appellant.

      5) That there was no proof on a balance of probabilities warranting the

         conviction. The Respondent ignored Appellant’s submissions in her

         defense. No mitigation was done before the penalty of dismissal was

         imposed.

      6) That the penalty of dismissal was not justified in the circumstances.



         The Appellant complained that the dismissal was pre-determined. In

other words Appellant complained that she was unfairly treated before and

during the hearing. She submitted that when she returned to work following a

ruling by this court, Respondent frustrated her by not giving her work. Whilst

that could be true the remedy for such breach is not reinstatement.          The

Supreme Court has already found in Air Zimbabwe (Pvt) Limited Chiku

Mwensa and Mavis Maruveye SC89/04 that a person should only escape the

consequences of his misdeeds because he is innocent. He should not escape

the consequences simply because some other person representing the

company fails to conduct proceedings properly.        If the proceedings were

conducted fairly and the employee was given an opportunity to defend himself

then the proceeding would stand. I am satisfied that in the present case the

tenetsof natural justice were followed.



         The Appellant complained that she was not given adequate notice for

the hearing. I found this ground of appeal to be without basis as the date of the

hearing was agreed upon by the parties. The Appellant conceded that she was

the one who proposed the date. To then turn around and claim that the day


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was not suitable is to split hairs. I am satisfied that the Appellant was given

enough notice.



          The Appellant submitted that there was no evidence proven on a

balance of probabilities that she committed the offences charged.               The

Appellant submitted that the Respondent erred in allowing evidence from

witnesses who were potentially guilty of the same offences. In other words

Appellant challenges the admissibility of accomplice evidence. It is common

cause that the burden of proof in civil matters is much lower than that in

criminal matters. The evidentiary burden of proof does not require the same

scrutiny as in criminal cases.     Whilst in criminal cases accomplice witness

evidence is treated with caution, there is no such requirement in misconduct

proceedings. The Respondent was given an opportunity to cross-examine the

witnesses.   It was up to the Appellant to show that the evidence of such

accomplices was not credible. I am satisfied that there was evidence that the

Appellant committed the offences in question. The Appellant accepted that she

received $300 from the Cashier for lunch on 16 November 2009. She signed for

the money. She accepted she had $180-00 change. However she submitted

that she gave the Cashier the $180-00 but did not get a receipt for it. It is highly

unlikely that a person of Appellant’s caliber would hand over change to the

Cashier without the Cashier signing for it. The Respondent’s decision that the

Appellant failed to return the $180-00 cannot be faulted.



          On the issue of newspapers the Appellant agreed she was getting

newspapers. All her superiors denied allocating her that benefit. Again the

decision that Appellant allocated herself such benefits cannot be faulted.      The


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other offences of delays in acquitting cash were proven by documentary

evidence.



            On the issue of the appropriateness of the dismissal penalty, the

Supreme Court found in the case of Masiyiwa vs TM Supermarket 1990(1)ZLR

166(S) that the court is not entitled to substitute its own discretion for that of

the employer if a proper ground for dismissal is established.         Respondent

submitted that it lost trust with the Appellant. Appellant’s position required

utmost trust, integrity and confidence without which Respondent had no option

but dismiss Appellant from employment. Respondent submitted that Appellant

abused her position of trust and such abuse went to the root of the contract of

employment.       I am satisfied that the Appellant has failed to show that

Respondent did not exercise its discretion properly in dismissing the Appellant.



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




Zuze Law Chambers– Appellant’s Legal Practitioners

Scalen and Holderness –Respondent’s Legal Practitioners




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