Priscilla Togarepi v Beach Consultancy Company (Pvt) Ltd t/a Aviation Ground Service (AGS)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/449/13
HELD AT HARARE 9TH SEPTEMBER 2013
CASE NO LC/H/34/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/449/13

HELD AT HARARE 9TH SEPTEMBER 2013	    CASE NO LC/H/34/13

AND 27 SEPTEMBER 2013

In the matter between:-

PRISCILLA TOGAREPI							Appellant

And

BEACH CONSULTANCY COMPANY (PVT) LTD			Respondent

t/a AVIATION GROUND SERVICE (AGS)

Before The Honourable L Kudya, Judge

The Honourable L.M. Murasi, Judge

For Appellant	:	Mr Musekiwa (Legal Practitioner)

For Respondent	:	Mr Muchadehama (Legal Practitioner)

MURASI J:

Appellant was employed by Respondent as a Shift Supervisor.  Appellant’s duties included issuing invoices to customers and in the absence of the cashier, also handle cash.    She was supposed to hand over the cash to the cashier.  It is alleged that on one of these occasions she created invoices for a customer named Nyaruwanga and received cash from this customer.  She is alleged to have handed in some of the money to the cashier with the exception of an amount of USD$1193.70.  Investigations were carried out leading to Appellant being brought before a Disciplinary Committee in terms of the Code of Conduct.  The Disciplinary Committee found her guilty and recommended her dismissal.  Appellant appealed to the Managing Director when it was discovered that members of the Appeals Committee had taken part in the investigations. The Managing Director upheld the decision of the Disciplinary Committee.

She is disgruntled by the ruling and has appealed to this Court.

Appellant lists the grounds of appeal as follows:-

Whether or not the Disciplinary Committee was properly constituted.

Whether or not the Respondent proved that the Appellant had performed her duties in a gross, improper, negligent, inefficient or incompetent manner so as to cause loss of money due to the company.

Whether or not the Respondent’s witnesses were credible so as to be believed by the Committee.

Whether or not the money alleged to be lost or embezzled was banked by the Respondent.

Whether or not the Respondent had an obligation to call the cashier to testify.

The grounds of appeal will be considered seriatum.  Appellant avers that the Disciplinary Committee was not properly constituted.  Appellant further states that the Disciplinary Committee was presided over by a legal practitioner appointed by Respondent instead of the Human Resources Officer in terms of Clause 9.3 of the Code of Conduct.  It is pertinent to note that the clause referred to enjoins the Human Resources Officer “to convene a Hearing wherein he/she shall chair the proceedings, where applicable, a designated official.”  “Designated official” is defined in clause 2 of the Code of Conduct as “an official appointed by the employer to hear and determine cases.”  It is worth noting that “official” is not defined as an employee of Respondent and this can include a person from outside the employ of the Respondent.  Further, Respondent explains this by stating that the Human Resources Officer was heavily involved in the investigation of the matter and it would have been improper to have the hearing chaired by the Human Resources Manager.  It is submitted that this was a plausible explanation and Respondent was not barred, in terms of that Clause, from appointing a Designated Official from outside the company.  The Appellant’s ground of appeal on this score must fail.

The second ground of appeal is whether or not Respondent proved that Appellant had performed her duties in a gross improper, negligent, inefficient or incompetent manner so as to cause loss of money due to the company.  (My own emphasis).

The record of proceedings shows that Appellant received money from Nyaruwanga and that USD$1193.70, according to Respondent, was unaccounted for.  Documents show that the amount was invoiced.  The main evidence in this respect came from the auditor who could not categorically state that the cashier did not receive the money.

The record also shows that Mr Chikore, when giving responses, was asked whether the cashier was given the money.  His response is recorded as “There being no receipt, it shows that the cashier did not get the money, but did not raise the issue.  This shows it was an act of connivance (Page 25 of the record).  When Mr Makota (the auditor) was cross-examined by Appellant’s counsel, he had very interesting answers.  He was asked whether he disputes that the total on the receipt sums up with the invoice.  His response was that “He did not dispute that the money was banked but has an argument on the make up of the receipt, since its (it is) not an official receipt.”  Asked whether USD$1193.70 was missing, the record reflects as follows:-

“He (Makota) refused to answer if USD$1193.70 was missing.”  The record further reveals that he “also refused to answer where he thinks the receipt came from.”  (Page 28 and 29 of the Record).  This, is in a nutshell, is supposed to be the evidence of the main witness who was supposed to clearly show that Appellant had not handed over the amount in question to the cashier.  The record also shows that the cashier was not a willing witness and openly hostile to Respondent for obvious reasons.

The pertinent question to be answered is whether Respondent, in the absence of the evidence of the cashier, managed to prove that Appellant had not handed over the money to the cashier.  The onus of proof in matters of this nature is on a balance of probabilities.  It should also be remembered that it is a well known legal adage that one who alleges must prove.  It is evident that it was Respondent who should have called the cashier to show that Appellant had not handed over the amount in question.  It is also trite that the Court should warn itself that it is not called upon to re-assess the case and come up to a conclusion.  The Court is merely being called upon to scrutinise the decision to ensure that it is reasonable in the circumstances.

The Court finds that in the absence of the evidence from the cashier, the evidence adduced is inadequate to make a finding that the Appellant did not hand over the amount in question.  In the result, the Court finds that Respondent failed to prove on a balance of probabilities that Appellant’s conduct resulted in the loss of money due to Respondent and the appeal succeeds in this respect.

Having found that Respondent has been unable to prove that Appellant caused this loss, it is not necessary to consider the other grounds of appeal.

In the result the decision of the Disciplinary Committee is set aside.

The Court orders as follows:-

That the Appellant be reinstated into her position with no loss of salary and benefits with effect from the date of dismissal.

Should reinstatement be no longer possible, Appellant is to be paid damages in lieu of reinstatement and for the premature loss of employment.

The damages payable are to be agreed between the parties or, in the event that parties fail to agree, assessed by the Court.

Each party to bear its costs.

Musekiwa & Associates, Appellant’s Legal Practitioners

Mbidzo Muchadehama & Makoni, Respondent’s Legal Practitioners

........................

L.M. MURASI

JUDGE

........................ I agree

L KUDYA

JUDGE