Phoneas Penesera v Premier Milling

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/197/16
HELD AT HARARE 9 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/197/16

HELD AT HARARE 9 MARCH 2016				CASE NO LC/H/311/15

& 8 APRIL 2016

PHONEAS PENESERA				Appellant

And

PREMIER MILLING				Respondent

Before The Honourable E Muchawa, Judge

For Appellant			S Makonde (Trade Unionist)

For Respondent		D Phiri (Group Human Resources)

MUCHAWA, J:

This is an appeal against a determination of the disciplinary authority/hearing officer of the respondent.

The appellant was employed by the respondent and was responsible for the weighbridge when it was alleged that he had been collecting money from weighbridge customers and had converted some of the money to his own use on 30 July 2014.  He was then charged in terms of section 4 (a) and (d) of Statutory Instrument 15 of 2006 being “any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract” and “theft or fraud” respectively.

The disciplinary hearing committee found the appellant guilty as charged and dismissed him from employment.

Disgruntled, the appellant has lodged an appeal in which he raises the following issues;

That the hearing committee was not properly constituted and was impartial such that the procedural irregularities rendered the whole process null and void.

That even though he had defrauded the respondent, it was just ten dollars and the amount was insignificant and did not warrant a dismissal penalty.

That his mitigatory factors of being a first time offender and his advanced age of 55 years should be considered so as to reduce the penalty.

The matter was set down in terms of Rule 22 of the Labour Court Rules as the

respondent had not filed a notice of response.  The respondent appeared at the hearing but did not show good cause why no notice of response was filed.  I proceeded to determine the matter in terms of Rule 22 (b) (ii) due to the nature and the justice of the case, seeing that the appellant was expressly admitting to having defrauded the respondent but sought to excuse his conduct on the basis of alleged procedural irregularities.  The respondent made oral submissions in response to the appeal.

I deal with each of the grounds of appeal below

Ground 1 – Alleged procedural irregularities

The appellant argued that the committee was not properly constituted as it was the human resources manager who suspended the employee, called for the hearing and passed the verdict.  In this way, he is said to have been the police, judge and jury and so is alleged to have been partial and conflicted.

The respondent disputes that the human resources manager was an interested party.  I was referred to the minutes of the disciplinary hearing which show that it was, in fact, the managing director who discovered the misconduct, investigated and handed over the matter to the human resources manager.

The human resources manager, in suspending the appellant is said to have acted in terms of section 6 (1) of the relevant code, S.I. of 2006.  This section provides,

“Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.”

It was also pointed out that the human resources manager did not hear the disciplinary matter as a committee but as an employer’s representative as provided in section 6 (4) of the Code.

The minutes of the disciplinary hearing confirmed that Mr Sithole (human resources manager) chaired the hearing, Mr Moss (the managing director) was the complainant, whilst the appellant appeared accompanied by a workers’ representative, a Mr Nyakatsapa.

I find therefore that the alleged procedural irregularities are unfounded in the circumstances and the impartiality has not been substantiated.

At the hearing, the appellant tried to introduce a new allegation of a procedural irregularity.  This was that the suspension letter did not state the grounds of suspension being the alleged facts supporting the misconduct.

The respondent conceded that the letter of suspension simply stated the charges but not the facts on which such charges were based.  This letter was handed over and dated 6 August 2014.  On the same date, the appellant was served with a notification to attend a hearing which set out the facts of the alleged misconduct.  There was no prejudice suffered so as to vitiate the proceedings.  (See Tichawana Nyahuma v Barclays Bank SC-67-2005).

There is therefore no merit in ground of appeal 1 as the technical irregularities do not exist, and where they do, there is no prejudice suffered.

Ground 2 and 3 – Propriety of dismissal penalty

The respondent avers that since the appellant admits to having defrauded the respondent, the misconduct had an element of dishonesty and this was not a fitting case to impose a corrective and educational penalty as it would set a bad precedence and the company could collapse.

The appellant relies on section 7 (1) of S.I. 15 of 2006 to argue that disciplinary action should, in the first instance, be educational and then corrective and that punitive action should only be taken when the said earlier steps have proved ineffective.

In the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012 the same argument was advanced in respect to a pizza worth $4.00 arguing there was no prejudice suffered by the employer.  The court held that the issue of prejudice was irrelevant to the issue of assessment of an appropriate penalty.

The important factor was that the offence committee involved a betrayal of trust and confidence reposed in the employee, thereby going to the root of the relationship between the employer and employer.  I am persuaded by this case.

Section 7 (1) of S.I. 15 of 2006 is not to be applied where the misconduct goes to the root of the contract of employment (Innscor Africa (Pvt) Ltd v Letron Chimoto).

In such a case the provisions of section 12 B (4) which call on an adjudicating authority to consider mitigatory factors such as a previous clean record, would not apply.  The appellant should have thought about this, his advanced age and the unfavourable job market before committing the offence.

Accordingly, the appeal is dismissed for lack of merit.