Promise Tauro v Redwing Mine

IN THE LABOUR COURT OF ZIMBABWE                  JUDGMENT NO. LC/MC/01/2013
HELD AT HARARE ON 29 JANUARY, 2012          CASE NO. LC/ MC/35/2011
In the matter between



PROMISE TAURO                          –              Appellant
And

REDWING MINE                           –              Respondent




Before The Honourable L. Kudya, President
For Appellant      - In person
For Respondent     - C. Maunga (Legal Practitioner)




KUDYA, L.

      This is an appeal against the decision of the designated authority which

upheld the Appellant’s dismissal at his workplace.



      The basic facts of the case are that Appellant was dismissed on

22/07/2011 following a hearing into allegations that he had contravened section

(4) (h) of Statutory Instrument 165/92 (gross incompetence inefficiency in the

performance of his work)



      The charges in question arose from the fact that certain bearings which

had been under his care and custody had been discovered to be missing

following a stock take by his superiors. Further to that various other items

which were also kept at a site where he was responsible to keep an eye on were
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also said to have been discovered to be missing. When asked about the missing

items all that he could say was that he had made his investigations and

concluded that his subordinates were not responsible for the loss.

   Further to that, he argued that he had done all that was within his powers as

a storekeeper that is making a report of the missing items to superiors. In his

view he had therefore done all that was within his powers and could not have

been argued to have performed his duties with gross incompetency. His

argument did not convince his employers who proceeded to have his matter

decided by a disciplinary committee whish sat at his workplace. The committee

concluded that he was guilty of the misconduct complained of and went on to

dismiss him. Aggrieved by the dismissal he appealed to the designated agent

which upheld his dismissal.    It is the designated agent’s decision which he

appeals against, to this court praying that the decision to dismiss him be

overturned and replaced by one of stern warning.



The grounds of appeal are cited as such;



   1. Appellant was not given prior warning before his dismissal

   2. Appellant does not agree to any of the reasons given for his dismissal

   3. Appellant could not have disciplined his subordinates without any solid

      ground to do so

   4. Appellant was concerned about the theft of the property hence his report

      to the Finance Manager at the time of the loss as well as assisting the

      security personnel in the investigation of the thefts

   5. Finally that Appellant could not mistrust his subordinates if they were

      found not guilty often investigations.


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On the other hand the Respondents response was to the following effect.



   1) Appellant as a storekeeper did not keep records of items under his

      custody hence making it difficult to account for stock under his charge.

   2) Appellant failed to do spot checks and could not do stock counts for the

      unrecorded items

   3) Appellant’s incompetency and inefficiency was proven on a balance of

      probabilities

   4) His incompetency resulted in the discovery that there were missing items

      only when departments had come to reclaim stock. To that end the

      absence of a record of what stock was in his custody made it difficult to

      know what was in his possession

   5) The dismissal penalty was appropriate because he was not remorseful yet

      the company had last property due to his incompetence.



   Given the fact that the Appellant was a self actor, the court did not take

particular note of the fact that his grounds of appeal were not in strict

compliance with the rules of court. In any event the respondent in its address

condoned the same on the grounds that he was a self actor. Being that as it

was, it was clear that basically what the Appellant took issue with was the fact

that he believed that the basis upon his being found guilty of the misconduct

complained of and the attendant penalty were all faulty.



   It is also noteworthy that at the conclusion of his submissions, Appellant

sought to raise a review issue that the decision to dismiss him was irregular

because he had only been furnished with the reasons for his dismissal about a

year after the hearing thus compromising his right to meaningfully challenge
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his dismissal. Again because he was unpresented the court also allowed him to

address it on that review part even though it did not form part of his earlier

prayer, which is within the confines of his grounds of appeal.



   The Respondent on the other hand maintained in its heads of argument

what it had stated in its response that the absence of spot checks, regular stock

checks, absence of meaningful records and controls as regards security of

respondent’s property all pointed towards the fact that the Appellant was

grossly inefficient and was therefore amenable to discharge. It thus prayed that

the Appellant’s appeal had to be dismissed as he had failed to demonstrate that

there was any misdirection on the decisions by the disciplinary committee and

the Appellant adjudicating body on the matter.



   The law relating to cases of this nature is quite clear. Before the Appellant

can be accorded the relief that he is claiming he has to satisfy the Appellant

court that indeed there was misdirection by the court aquo which warrant

interference by the instart case. In the case of Treger Plastics (Pvt) Limited vs

Woodreck Sibanda and Paul Magondo Ziyambi JA stated that


      ‘----An appellate court will not interfere with the exercise be of the discretion by the employer
      witness there has been a misdirection in the exercise of such discretion’



      Even though the thrust of the above quoted case was the issue of the

penalty, the principle applies with equal force to the decision giving rise to the

penalty and how it was arrived at. It therefore follows that in the instant case

the question to be answered is whether the factual findings made by the



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disciplinary committee and the designated agent can be said to have been

based on a clear misdirection which warrants interference by this court.



     As regards the 1st   ground of appeal, appellant maintains that he should

have been given a prior warning before a dismissal.         However as correctly

pointed out by the Respondent and as supported by the authorities which it

cited of Standard Chartered Bank Zimbabwe vs Chapuka 2005 ZLR (1) at 52

and that of Wattle Company (Pvt) Limited vs Wilbert Vumisani SC/50/05 the

option not to dismiss could have been resorted to if the employer felt that there

was still room for a cordial working relationship with the Appellant.




      In the instant case and as amply demonstrated by the record of

proceedings of the disciplinary committee, Appellant exhibited arrogance and

did not show any contrition following the discovery of the loss of the property

hence to force respondent to retain him would have been unsustainable as the

relations had already been strained.



   In any event, the penalty meted out was permissible for the infraction which

the Appellant had been found guilty of.        Tied in with this ground is also

respondent’s response to the effect that the penalty fitted in well with the

infraction. It therefore deserved no further discussion than to say indeed if the

respondent took a serious view of the Appellant’s infraction it was with its

powers to dismiss him.



   As regards the second ground which I can term his main ground of appeal,

the Appellant argues that he does not agree with any of the reasons given for
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his dismissal. Embroiled in this are issues which were raised by the respondent

of spot checks, records etc.



 A reading of the records of proceedings of the adjudicating bodies aquo clearly

show that the issues that Appellant argues about were raised even then and

were adequately addressed. In fact in his address he made concessions that he

was well schooled in his job having done it for over ten years. Even though he

tried to take issue with the fact that he was issued with a written job description

about a month prior to the charges being leveled against him, he however

conceded that the contents of the written job description tallied well with the

oral one. In that respect the court could not find fault with the delayed issuing

of the job description as it did not detract from what he did or what he was

supposed to do.

    The distinction which he drew between the stock whose record was kept in

the computer and that which had come from the football field was not

strenuously denied by the respondent. All the respondent said was that for a

person who professed to know his job well it was imperative that he put

controls in place to ensure that he could account for the stock under his care at

every stage.



      The court does not condone the Respondent’s porous security system

which it confessed it only beefed up after this offence but that cannot absolve

the Appellant from having failed to be diligent and to put into place a system

where the items which he kept could be accounted for. The free for all situation

which he maintained and the porous security systems led to the loss of

Respondent’s property. Worse still when the issue came to the fore and the

Respondent had Appellate before a hearing panel, the question answer
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exchange contained in the record exhibited a lacadaisical approach          which

Appellant took towards his duties which unfortunately cost him his job. To now

turn to the appeal court and ask it to find leniency for him where he lost it when

he should have gotten it is asking for too much.



      The appeal ground about reporting the theft to the superiors is laudable

but is inconsistent with the attitude which appellant exhibited during the

proceedings before the hearing bodies aquo . Whilst it was not imperative that

Appellant mistrusts his subordinates it was important that where property was

being lost and the losses unexplained he needed to have taken a more serious

approach to how he conducted his duties in liason with the security personnel.

Whether spot checks were part and parcel of his duties was not critical. The

main issue is whether the manner in which he carried out his duties was such as

demonstrated seriousness of purpose more so where he had risen through the

ranks to the level where he was now at. The court is therefore satisfied that the

facts on the record do not demonstrate that the Respondent misdirected itself

on the facts of the case and maliciously dismissed the

Appellant.



      The review argument which he raised also has no merit taking into

account the fact that he conceded that he signed for the minutes at the time of

his dismissal and later retracted that and did not seek to get the minutes then

until later when he realized their importance. It is said that when he then set

out to get them finally they delayed but, for a person who had refused earlier on

to get such he cannot cry foul. The Respondent cannot be expected to have

forced him to take the minutes at the time he rejected them so, it is the court’s

view that the review argument has no merit in it. In the ultimate it is clear that
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all the grounds of appeal and the review ground raised by the Appellant had no

merit for the reasons articulated above. In the result the appeal is dismissed in

its entirety.



It is therefore ordered as follows:



That the appeal being without merit be and is hereby dismissed. The appellant’s

dismissal is confirmed There will be no order as to costs.




Signed

L. KUDYA                        --------------------------------------------

President Labour Court




Maunga and Maanda - Respondent’s Legal Practitioners




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