Peter Dondo v Agrifoods

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/05/2013
HELD AT HARARE ON 31 JULY, 2012              CASE NO. LC/ H/228/2011
In the matter between



PETER DONDO                                           –         Appellant


And


AGRIFOODS                                             –         Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - M. Gapara (Legal Practitioner)
For Respondent     - O. M. Chikunda (Human Resources Manager)




MATANDA-MOYO, L.

      This is an appeal against the decision of the Appeals Committee which

found Appellant guilty of negligent loss of company property and negligence.

The Appeals Committee upheld the decision of the disciplinary hearing

dismissing Appellant from employment.



      The brief facts are that Appellant was employed by the Respondent. One

of his duties was keeping the keys to the safe and safeguarding the monies

deposited therein. On 19 February 2011 Appellant locked the safe and hid the

keys in a dust bin. There was an amount of $17 808-00 in the safe. On 21

February 2011 Appellant opened the safe and found the money missing. As a
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result he was charged with negligent loss of property and negligence. He was

found guilty and dismissed from employment.



Appellant’s grounds of appeal are as follows;

   1. That the Appeals Committee erred and misdirected itself in confirming

      the dismissal when there was no evidence linking Appellant’s conduct to

      the loss suffered by the Respondent.

   2. That the Appeals Committee erred and misdirected itself in confirming

      the dismissal of Appellant on a charge of negligence where there was no

      set standard which the Appellant was supposed to adhere to, and in the

      absence of a standard operating procedure governing his duties.

   3. That the Appeals Committee erred in confirming the dismissal instead of

      imposing a corrective and educational penalty.



   Firstly Appellant submitted that there was no evidence that whoever stole

the money used the keys that had been deposited into the bin by Appellant.

Before Appellant could be convicted, there was need for Respondent to provide

evidenced linking Appellant’s conduct to the loss suffered by the Respondent.

Without such connection the conviction on negligent loss of company property

cannot stand.



   The disciplinary hearing found that “he (Appellant) was the sole custodian of the keys

and that US$17 808. - - was lost” . A careful scrutiny of the record of evidence does

show how such a conclusion was reached.              On page 20 of the record of

proceedings, second and third lines from the top reads;




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   “E. Rubeni: are you the one who keeps the keys are there any spare keys.
   P. Dondo: I do keep the keys but there were no spare keys.’’



Appellant himself admitted that there were no spare keys to the safe.



       Also on page 18 of the record fourth paragraph from the top, on being

asked why he hid the keys in the bin Appellant explained that once he forgot the

keys home, he had to go back home, to fetch the keys in order to open the safe.

I am satisfied that there was evidence on a balance of probabilities that there

were no spare keys to the safe. The safe was not broken into and the only

reasonable conclusion is that the thief used the safe keys to open the safe. I

therefore do not find merit on the first ground of appeal.



       Appellant submitted that there were no set standards to be followed in

safekeeping the keys. There were no standard operating procedures governing

his duties and without such Appellant could not be found guilty of negligence.



       The disciplinary committee found that Appellant was supposed to carry

the safe keys with him or at least keep them in a separate room from the room

which housed the safe.         The committee found that Appellant was negligent in

placing the safe keys in a bin in the same room as the safe.                  The Respondent

seem to have conceded that there were no rules governing safekeeping of the

keys. In the absence of such rules the test to be used in determining negligence

is the reasonable man test. Was it reasonable for the Appellant to keep the keys

in a bin in the room where the safe was housed. The answer is no.                       It is

common cause that the Appellant’s conduct of concealing the keys in the bin fell

below an expected standard in the circumstances. Leaving the keys in a bin in

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the same room was negligence. Also concealing the keys in the bin in the

presence of another person was negligence. I am satisfied that the Respondent

managed to prove negligence on the part of the Appellant.



      Let me now deal with the issue of penalty. Was dismissal appropriate in

the circumstances. It is trite that the issue of penalty is the prerogative of the

employer and the courts should interfere with penalty where the exercise of

that discretion was abused.       Appellant was convicted of negligence which

caused a loss of over $17 000 to the employer. Appellant has not provided any

justifications for this court to interfere with the penalty imposed.



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




I. Murambasvina Legal Practitioners– Appellant’s Legal Practitioners




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