Philip Siyado v CFI Retail Ltd (Vetco)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/386/2016
HARARE, 10 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/386/2016

HARARE, 10 MAY 2016  	  		         	     CASE NO. LC/H/493/15

AND 23 JUNE 2016

In the matter between:-

PHILIP SIYADO						Appellant

And

CFI RETAIL LTD (VETCO)				Respondent

Before Honourable P. Muzofa, Judge

For Appellant		F Chimwamurombe (Legal Practitioner)

For Respondent		Mrs C.N.  Mapfidza (Legal Practitioner)

MUZOFA, J:

This is an appeal and cross appeal from a decision of an arbitrator in which the decision to dismiss the appellant was confirmed.

The appellant was employed as a microbiologist by the respondent until the 3rd of September 2014 when he was dismissed following a disciplinary hearing.

The background to this case is not in dispute.  The appellant’s duties were predominantly confined to the Laboratory where chemicals are developed.  According to appellant the duties included direct liaison and contact with other chemical companies.

On 21 August 2014 the appellant contacted the respondent’s Vet Warehouse and requested for 10 x 5 litres of a solution known as C.M.T.

Certain procedures were to be followed in such circumstances.  Appellant completed a stock transfer voucher and the reason for such transfer was indicated as for retesting and quality control.

The CMT was eventually loaded into one Mr Grierson’s motor vehicle who turned out to have purchased the product for $10 per 5 litres instead of $20 dollars per 5 litres.

It was also alleged that appellant was involved in a scam in relation to the hiring of security guards.

Following these allegations the appellant was charged.  Two charges were preferred firstly for conduct inconsistent with the fulfillment of his express or implied conditions of his contract.  Secondly for fraud and or theft in terms of section 4a and (d) of the (Labour National Employment Code of Conduct) Regulations 2006.

The disciplinary committee found appellant not liable in respect of the conduct involving security guards.  He was found liable for misconduct in respect of the sale of the CMT.

Dissatisfied by the outcome, the matter was referred to a Labour Officer and subsequently to an arbitrator who confirmed the respondent’s decision.

Still unsatisfied by the decision the appellant approached this court on appeal.

Three grounds of appeal are set out on the notice of appeal.  They raise two issues for determination by this court.  The issues are whether there was adequate evidence against the appellant to found liability and whether the penalty of dismissal was properly imposed.

The respondent too was dissatisfied by the arbitrator’s findings and filed a cross appeal.  The arbitrator made a finding that there was a splitting of charges since the respondent had one intention to sell the CMT, the rest of the conduct was meant to achieve this goal.  The respondent’s ground in the cross appeal was that there was no splitting of charges.

I will address the grounds of appeal first.

For the appellant it was submitted that the respondent failed to prove the charge of fraud beyond a reasonable doubt.  According to appellant, based on the Astra Industries Limited v Chamburuka SC 27/12 where a person is charged with an offence of a criminal nature by an employer, there must be proof beyond a reasonable doubt.

Before I proceed I would like to address the issue on the standard of proof in a disciplinary hearing where the charge is of a criminal nature it is incumbent that the essential elements are proved.

The appellant’s referral to the Astra Industries case supra as authority that the standard of proof is beyond a reasonable doubt is incorrect.  The court in that case after making the observation on the standard of proof left the issue open for it said at page 3.

“For the purposes of the present appeal, it is not necessary to determine whether or not this principle should apply to ordinary disciplinary proceedings in labour matters.”

There is a line of cases being authority that the standard of proof in civil proceedings of which disciplinary proceedings fall is nothing more than on a balance of probabilities.

The leading case is ZESA v Dera 1998 (1) ZLR 500 (SC).  The court clearly set out the basis for the two standards of proof.  In a civil case the primary concern is to do justice to each party.  In a criminal case it is the State representing society against an individual.  The primary concern in such circumstances is to do justice, there is no need to balance competing interests.

The court in that case commented on the analogy with reference to the case of Mugabe & Another v Law Society of Zimbabwe 1994 (2) ZLR 356 (S).

It was noted.

“The analogy of cases involving the disciplining of lawyers, where a higher standard of proof is required before a lawyer maybe struck off, is incorrect.  In such cases, the law Society is acting as a guardian of the public interest, acting more like the state in a criminal trial than like an employer in a dispute with an employee.  There is no need to balance competing interests.”

In my view the standard of proof will only vary in a civil proceeding where one party is acting in the public interest.  In casu there is no need to adopt the approach in the Mugabe case supra.  The parties are just but an employer and employer.  There is no public interest in this case.

The standard proof remains to be on a balance of probabilities.  It follows then that where an employee is charged with an offence of a criminal nature, the essential elements have to be proved on a balance of probabilities.

Although the appellant was found liable on the two charges the arbitrator focused on the charge of fraud.

According to the appellant there was no proof that he intended to deceive the respondent and there was no prejudice. To buttress these points several reasons were submitted that the General Manager of the appellant had approved the sale to Mr Grierson at ten dollars ($10.00) a litre.

The appellant being the manufacturer of the CMT product he could well have manufactured the product and sold it at his house therefore he would not be involved in such dealings.

That the appellant inquired on the procedure to be followed in making such transactions albeit after he had transacted with Mr Grierson.

That appellant handed over the money for the responsible people for banking.  An invoice was actually issued.

Appellant argued that the respondent failed to rebut his assertion that the General Manager had verbally approved the sale.

The respondent’s case was simple.  The appellant was not involved in sales and marketing.  He ordered the CMT under the pretence that it was for retesting and quality control, yet he knew that was incorrect.  Thereafter he sold the product at a lesser price of $10 instead of $20 per 5 litres.  When the product was exiting at the gate appellant advised the security guards that the product was in his motor vehicle yet he knew that the product had been loaded into Mr Grierson’s motor vehicle.

Both charges were therefore proved.

The issue for determination is whether on the evidence placed before the arbitrator, a gross misdirection was occasioned.  It is now cardinal that an appeal court can only interfere with the findings of fact by a lower tribunal where there was a gross misdirection.

I find no fault in the arbitrator’s findings.

As set out by the respondent fraud is defined in Section 136 of the Criminal Law (Codification and Reform) Act Chapter 9:23 as

“Any person who makes a misrepresentation

Intending to deceive another person or realizing that there is a real risk or possibility of deceiving another person, and

Intending to cause another person to act upon the misrepresentation to his or her prejudice or realizing that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice; shall be guilty of fraud if the misrepresentation causes actual prejudice to another or person or is potentially prejudicial to another person.”

Three elements stand out of that definition.

There must be a misrepresentation, there must be an intention to deceive another person and prejudice whether real or potential.  He did not deny that he requested the CMT pretending that it was for quality control and retesting.  On the basis of this reason the product was released.

The mega question is why would he misrepresent an “ordinary” sale?  He could have simply referred the customer to those responsible for sales.  Alternatively used the right channels for sale.  It was not disputed that his job did not involve sales.

There was an intention to deceive. This is so because at the time all the people involved in the release of the product facilitated such release on the basis that the microbiologist intended to do his work.  Contrary to that the microbiologist intended to sale the product.

In my view if all these people were aware of the true intention of the appellant they were possibly not going to release the product.

There was real prejudice.  The product was sold for $10 per 5 litres instead of $20 per 5 litres.  The appellant argued that there was a verbal agreement between the General Manager and the customer to sell the product at $10 per 5 litres.  It was submitted that it was for the respondent to call the General Manager to rebut the assertion.

I donot believe that takes the appellant’s case any further than where it was.

I say this for the following reasons.  The appellant conceded during the disciplinary hearing that the cost of CMT was $20 per 5 litres.  At page 66 of the record the following conversation took place.

“DG:	What is the cost price of the CMT?

PS:	(appellant) $20

…

DG:	How does it work, to take you (sic) take something for $20 and sell it for $10?

It should have been sanctioned by someone, maybe someone above you or

above them.

PS:	It was agreed between me, GM and Mr Grierson that we give him it that price.  The actual cost is $4.50 from the lab side for the CMT.  There was no loss in any way.”

The appellant alleged that there was a verbal agreement.  It is settled that he who alleges must prove.  Respondent said there was no such agreement the price of CMT was known to be $20.

The email referred to by the appellant only shows that there was some engagement on the pricing of the product.  There was no evidence that parties agreed on a cost price of $10.  The email is dated 20 November 2013 and the transaction was made on 21 August 2014.  It would be far fetched to believe the appellant’s claim that the email was evidence that Mr Grierson was going to transact with appellant. If any transaction was to be made it was further engagement on the cost and not sale.  Infact the email shows that the pricing issue was not agreed between the parties.  By selling the product at $10 the appellant prejudiced the respondent of $100.

Since proof is on a balance of probabilities, in my view the respondent ably discharged its onus.

As stated before the arbitrator found that there was splitting of charges.  She preferred to zero in on fraud.  In my view even the charge on conduct inconsistent with his contract of employment was proved.  The first and second grounds of appeal are meritless and therefore dismissed.

The issue on penalty is also meritless.  Appellant submitted that the respondent exercised its discretion injudiciously.  The basis for the submission being that the arbitrator having found there was splitting of charges should have considered a penalty in respect of one charge.  A consideration of both charges created an impression that the appellant’s blameworthy was high.

Respondent argued that determining a penalty is an exercise of discretion, in casu that discretion was properly exercised reference was made to the case of Malimanjani v Central Africa Building Society SC 47/07.

It is trite that a court can only interfere with an exercise of discretion only where the discretion was improperly made.

In this case I donot believe any one of the charges could attract a lesser penalty.  Fraud on its own attracts a dismissal and so is conduct inconsistent with one’s contract in view of the circumstances of this case.

The appellant’s conduct was dishonest.  Once an employer loses trust in an employee that relationship is destroyed.  The appellant took a serious view to this misconduct, it literally destroyed the root of the employment relationship.  Therefore he was entitled to dismiss the appellant.

Appellant had worked for six years and he should have known better.

The cross appeal impugns the arbitrator’s findings on splitting of charges.  There’s no merit in the cross-appeal.  The arbitrator dealt with the issue extensively and applied the dominant intent test to come up to the conclusion.  Clearly there was one act, to sale the CMT and all the other procedures were meant to facilitate the sale.

That is why the arbitrator addressed his mind on one charge, fraud.

From the foregoing the following order is made.

The appeal be and is hereby dismissed.

The arbitrator’s decision is hereby upheld.

The cross appeal be and is hereby dismissed.

No order as to costs.

Mberi Chimwamurombe Legal Practice, appellant’s legal practitioners

Dzoro & Partners, respondent’s legal practitioners