Rinos Nyadongo v TM Supermarket (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/135/2021
HARARE, 9 JUNE 2021
CASE NO. LC/H/167/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/135/2021

HARARE, 9 JUNE 2021	                                     CASE NO. LC/H/167/20

AND 10 SEPTEMBER 2021

In the matter between:-

RINOS NYADONGO						Appellant

And

TM SUPERMARKET (PVT) LTD					Respondent

Before Honourable B.S. Chidziva, Judge

For the Applicant			Ms K Muyangwa (Legal Practitioner)

For the Respondent		Miss M. Chinyangarara (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Appeals officer who upheld the decision of the Hearing Officer to dismiss the appellant from employment.

The brief facts of the matter are that appellant was employed by the Respondent as a Section Manager. He was charged for contravening section 4 (a) of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006. It was alleged that he swiped customers’ groceries using his own bank card and pocketed cash in United States Dollars that the customers would have brought to the Supermarket intending to pay for their purchases. By so doing it was alleged that appellant had committed an act of conduct or omission inconsistent with the fulfilment of the express or implied conduct of his contract of employment.

The Appellant has filed his appeal based on the following grounds:

(1).	The Appels Committee grossly misdirected when it gave to due consideration to two major issues which are mitigation and tenure of service wherein the grounds of appeal raised by the Appellant were mitigation and penalty.

(2).	It is respectfully submitted that the Internal Appeals Officer grossly erred and both misdirected itself both at law and fact when he deviated from the original charge by categorising the Appellant’s act of conduct as fraud. The Appellant had no intentions to neither steal nor commit fraud.

(3).	The Appeals Committee misdirected itself in finding that the case was fraudulently misappropriated when there is no evidence of such prejudice.

(4).	The Appeals Committee misdirected itself on a point of law and fact by dismissing the Appellant’s appeal on the strength of a wrong charge thus prejudicing the appellant more particularly in that the appellant’s conduct was interpreted to be fraud thus placing the appellant on the risk of a huge penalty which could have been avoided if a correct charge was given.

(5).	The Appeals Committee grossly erred both in law and fact when he totally dismissed length of service as a mitigatory factor and addressed it as an aggravating factor for the appellant who has a clean disciplinary record.

(6).	The sentence imposed by the disciplinary committee which the Appeals Committee upheld is manifesting unjust and induces a sense of shock.

In response the Respondent submitted that

(i)	the Appeals Committee erred by not considering the mitigation and length of Service because the Appellant had served for 33 years.

(ii)	There was no direct prejudice on the Respondent because Appellant had  swiped cash in return for foreign currency.

(iii)	The penalty was excessive. Appellant should have just been given a warning.

The issues to be decided are:

(i)	Whether or not the appellant was charged with the correct charge.

(ii)	Whether or not a penalty of dismissal was appropriate in the circumstances.

(iii)	Whether lengthy of service was mitigatory in the circumstances.

Whether or not Appellant was charged with the correct charge

The appellant was charged with committing an act of conduct or omission that was inconsistent with the fulfilment of the express or implied conditions of his contract. It has not been disputed that in 2017 Appellant signed a letter from his employer that prohibited the interception of money as he did. The appellant acted in a manner which was inconsistent with the fulfilling of his duties. Hence the Appeals Officer found him guilty as charged. The Appellant was therefore charged and found guilty of the appropriate charge.

Whether or not the Appellant dismissal was appropriate

Appellant occupied a position of trust in the organisation. His conduct in the circumstance went to the root of the contract and he therefore deserved to be dismissed. He failed to submit to the employer the United States dollars that the customers brought to the Appellant to purchase groceries. He therefore acted contrary to the company policy and cash control.

Whether or not length of service was mitigatory

It is the appellant’s argument that his length of service of 33 years should have been mitigtory in the circumstances. On two (2) occasions i.e. 20 October 2020 and 26 October 2020 the appellant paid groceries on behalf of customers using his bank card in exchange for foreign currency. This action was contrary to company procedures and systems. Being a seasoned manager he was supposed to lead by example i.e. abiding by company policies and regulations. It was stated by Grogan Workplace law ed at 209 that:

“… long service will not always help employees. In De Beers Consolidated Mines (Pvt) Ltd v Commissions for Conciliation, Mediator and Others, the Labour Appeals Court went so far as that say that these factors are not really ‘mitigating’ circumstances at all …”

Grogan in Dismissal, Discommunication and Unfair Labour Practices further stated that

“The more senior – the employee the higher the standard of work that can be expected of him or her … (a) Senior employee (has the) knowledge and experience (to) qualify him to judge for himself whether he is meeting the standards set by the employer” (pg 411).

From the foregoing it is clear that Appellant’s Long Service was aggravating. In the case of Cornaud Metal Box v Ruzvezve ZW SC 056/15 it was also stated that:

“this section could only be brought in and where the employer was shown to have committed a misdirection in imposing the penalty dismissal. An appellate tribunal in these circumstances would take into consideration among others, the factors set out in that section to enable it to arrive at a decision as to the appropriate penalty to be imposed. To hold that the section gives an unbounded licence to the court to alter a punishment of dismissal imposed by an employer in a proper exercise of its discretion would be to depart from all established legal principles in terms of which an employer cannot be obliged to employ someone with when he can no longer maintain an employer employee relationship. That cannot have been the intention of the legislature in enacting that statutory provision.”

From this it is clear that section 12 B (4) of the Labour Act does not put the employer in a position to continue in an employment relationship with the employee where he has breached the trust imposed on him. His length of service had been put on the Respondent. Therefore breach of this trust cannot be mitigatory but aggravating.

In the circumstances therefore, this court finds that the appeal lacks merit and orders as follows:

(i).	The appeal be and is hereby dismissed.

(ii).	Appellant shall bear costs.

Muyangwa & Associates, Applicant’s Legal Practitioners

Honey & Blanckenberg, Respondent’s Legal Practitioners