Securico Security Services v Cenceni Choto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/172/2014
HELD AT HARARE ON 24 OCTOBER, 2013
CASE NO. LC/H/640/2011
& 28 TH
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IN THE LABOUR COURT OF ZIMBABWE    	 JUDGMENT NO, LC/H/172/2014

HELD AT HARARE ON 24 OCTOBER, 2013		CASE NO. LC/H/640/2011

& 28TH MARCH 2014

Inthe matter between:-

SECURICO SECURITY SERVICES			-	Appellant

And

CENCENI CHOTO						-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Appellant	-	Mr M. Kupfuwa (Human Resources Manager)

For Respondent	-	In Person

Chivizhe  J,

This is an appeal against a decision of the Negotiating Committee handed down on the 3rd October, 2011 by which the Appellant was ordered to reinstate he Respondent without loss of salary and benefits from the date of dismissal.

The material background facts are as follows;

The Respondent was employed by the Appellant as a Supervisor in the records salary and discipline department.  She was dismissed from employment on 3 March 2010 following a disciplinary hearing.  The charges levelled against her were of unlawfully taking property with the intention of permanently depriving the employer of the use of such property.  Part V, Group iv paragraph 3 offence under NECCS EmploymentCode of Conduct.  The allegations were that following a search conducted at her residence in Warren Park on the 2nd of March, 2010 she was found with two extra white shirts.  It was Appellant’s contention that the shirts had been issued to her for use in guard duties during the Tour of the World Cup in Zimbabwe from November 23 to the 27th, 2009.  The kit had however not been put on the stock card.  The uniforms should have been returned to company stores.  Respondent however failed to return the uniforms.  Respondent was found guilty by the Disciplinary Authority.  She appealed to the Mashonaland Local Joint Committee.  That body upheld the employer’s decision to dismiss.  The Respondent then appealed to the Negotiating Committee.

In its decision handed down on 3 October, 2011 the Negotiating Committee came to a conclusion that although Respondent was supposed to return the white shirts there was no time frame for their return, the Respondent had admitted that she had the shirts and was using them when asked.  The Negotiating Committee then concluded that asked on the evidence the Respondent had no intention to permanently deprive the employer of the shirts.  On that basis the Committee reversed the decision of the Mashonaland Local Joint Committee and upheld Respondent’s appeal.  The Appellant dissatisfied noted the present appeal.

The appeal is premised on the following grounds of appeal;

The Respondent’s appeal to the Local Joint Committee of the NEC for the Commercial Sectors contravenes the previous of Clause 7.2.2 of the registered Employment Code of Conduct for the Commercial Sectors that requires the employee to lodge an appeal…” promptly and not later than seven (7) days from the date the employee is notified of the employer’s decision.

The Local Joint Committee failed to comply with the provisions of Clause 7.2.3 of the registered Employment Code of Conduct for the Commercial Sectors that requires a decision to be given by the committee within 14 days.

The Negotiating Committee based its decision on facts that were not substantiated and supported by any evidence.

The Negotiating Committee failed to consider facts surrounding the case that prove the Respondent’s culpability and opted to base its decision on simplistic line of thought that is devoid of practical reality.

As the present appeal is noted against the decision of the Negotiating Committee the first two grounds of appeal are clearly improperly raised before this court.  They are consequently struck out.  The only two grounds properly raised before the court are grounds No. 3 and 4.  I shall proceed to determine both grounds.

In respect of the third ground the Appellant submitted that the Negotiating Committee erred when it concluded that the Respondent had no intention to permanently deprive the employer of the extra uniforms found in her possession four months after the event for which the uniforms had been issued.  The Respondent however disputed that she was advised to return the uniforms immediately after the event as she did not attend the particular parade where the instructions were issued.  Because of the dispute on the facts the Appellant applied to the court to introduce new evidence.  The application was granted.

The Appellant on the 24th of October 2013 called for the evidence of two witnesses i.e. Mrs Danai Simbi (Administration) and Mr Amos Butaputa (South and Investigations).  The first witness evidence was that the Respondent as a Senior Supervisor responsible for issuance/withdrawal of uniforms was fully aware of the company rules/regulations regarding uniforms.  In particular she knew that as per company policy she ought to have two shirts only.  It was her further evidence that the Respondent was present at the parade where the group were issued with uniforms and were advised to return uniforms.  All the other employees had returned uniforms.  Respondent and her subordinates had however not returned the uniforms.  The uniforms had also not been recorded in the stock card by the Respondent.  Had it not been for the random search conducted at her home the Appellant would have been deprived of the uniforms permanently.

The second witness evidence was that the Respondent was required under company policy to have only two shirts at a time.  He was the one who initiated disciplinary proceedings against Respondent after the discovery of the two extra shirts on Respondent’s house.  The witness confirmed that there was the parade.  He however could not positively confirm whether or not she was at the parade.  The witnesses were both cross-examined by the Respondent and remained unshaken.  I have no basis to doubt their evidence.

I am satisfied on the basis of the facts and the evidence in the record that the Respondent was properly convicted by the Appellant on the charge.  It is clear that she received the two shirts for use during the tour of World Cup in 2009.  She then kept the shirts after the event.  That she kept the shirts for four months clearly shows an intention to deprive employer permanently of the shirts.  Her defence that she was not aware of the instruction to return the shirts immediately after the event does not hold water in view of the witnesses’ evidence that as very senior employee she was aware of the comply policy to have only two shirts at a time.  She also failed to challenge the witness evidence that she did attend the parade where uniforms were issued and they were advised to return the uniforms after the event.  In the circumstances this appeal clearly ought to succeed.  It is accordingly ordered as follows;

The appeal succeeds.

The decision by the Negotiating Committee dated 3rd October 2011 be and is hereby set aside.

The decision by the Appellant to dismiss the Respondent from employment stands.