Simukai Masvongo v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/248/14
HELD AT HARARE ON 27th FEBRUARY, 2014
CASE NO. LC/H/117/09
AND 25th APRIL, 2014
JUDGMENT NO. LC/H/248/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/248/14

HELD AT HARARE ON 27th FEBRUARY, 2014   CASE NO. LC/H/117/09

AND 25th APRIL, 2014

In the matter between:-

SIMUKAI MASVONGO 							Appellant

And

DELTA BEVERAGES							Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: Mr. Maponga (Organising Secretary UFAWUZ)

For Respondent: Mr. K. Ncube (Legal Practitioner)

MHURI J.:

This is an appeal against the Works Council’s decision confirming Appellant’s dismissal from Respondent’s employ.

Appellant’s grounds of appeal as per the notice of appeal are not clear.  I restate them hereunder:-

The hearing chairman ignored the role by the Quality Control Department despite agreeing that the Quality Control book was not consistent.

The chairman also ignored the fact there was some information I tallied with Quality Control and I quote “acknowledged that and took note of it as we deliberated but realizes that there is some information you tallied;”

The chairman refused to hear my grounds of appeal I resubmitted and I quote again line 12 of page 29 “We cannot rehear the case.”

The system and the Standard Operating Procedures had poor and unclear instructions.

It was a hearing predetermined.

The undisputed factual background is that Appellant was in Respondent’s employ as a stock controller.

On the 26th March, 2009 appellant was suspended from duty to facilitate investigations into alleged acts of misconduct.

On the 1st April, 2009 Appellant was served with a notification for a disciplinary hearing, the charges being:-

Neglect of duty: failure to perform one’s job at all or abandons it ……

Falsifying of company document.

As regards the first charge it was alleged that in violation of the provisions of the Standard Operating Procedures (SOP), Appellant verified Balance Backs (BBs) on his own without involving Quality Control (QC) for confirmation.  This, it was alleged prejudiced the Respondent in terms of the correctness of the Respondent’s records.

As regards the second charge, it was alleged that after receiving two trucks from driver Mamvura, Appellant declared 2160 litres of BBs as opposed to Quality Control’s 2124 and 2796 litres of BBs as opposed to 1392 declared by Quality Control.  The total difference being 1440 (36 + 1404) litres.

After a hearing, the Hearing Committee made the following findings:-

That Appellant did not follow the Standard Operating Procedures of verifying Balance Backs from the market with quality control and by so doing he neglected his duty.

That he falsified company documents when on the 3rd March he declared a BB of 2796 litres instead of 1596 litres giving a difference of 1200.

As a result, Appellant was dismissed from employment.

This case centred on the provisions of the Standard Operating Procedures.  In particular the procedure to be followed when RECEIVING 2 litre pack.  These are that

Instruct the security ………

Instruct the forklift driver ………

Allow the lorry crews to ………

Inspect the pallets …………

The Stock Controller and Quality Control technician then check the Balance Backs to establish conformance defined in the 2 liter check-sheet.

The stock controller completes the 2 litres return check sheet in the absence of Quality Control.

Label …………

Take 2 liter …………

Wait …………

If accepted, raise …………

…………

…………

…………

…………

…………

Paragraph (e) is very clear and unambiguous.  It requires that the stock Controller together with the Quality Control technician check the Balance Backs.  In the event that either the stock controller or the Quality Control technician checks the Balance Backs in the absence of the other, he/she will be contravening this particular Standard Operating Procedure.

In casu, Appellant was found to have done exactly that, ie check the Balance Backs in the absence of Quality Control. This finding was based on the fact that there were no agreed or signed figures between Appellant and Quality Control.  An analysis of the daily events as reflected on a document filed of record (page 30) clearly shows this.

Further, the Quality Control technician report filed of record (page 28) also shows that he did not receive any Balance Backs on certain dates as he was busy elsewhere.  This is clear evidence that on those dates, Appellant did the verification on his own.

It is noted from the record that Appellant loved to play the push the blame game.  When asked why he did not verify with Quality Control his response is that they had missed the book. Asked why the figures vary, his response is they record wrong information.  His report is also testimony of this (record page 27).

To that end therefore I find that the finding of guilty of neglect of duty cannot be faulted.

As regards paragraph (f) of the Standard Operating Procedures, it is also clear that, this procedure is the one that the stock controller performs without the involvement of Quality Control.  Procedure E and F are therefore two very distinct procedures and very clear in the manner they are to be executed.  I find therefore that Appellant’s ground of appeal that the Standard Operating Procedures had poor and unclear instructions is without merit.

In his appeal form, to the Human Resources Manager of the 4th March, 2009, Appellant stated as one of his grounds of appeal,

“I resubmit my grounds of appeal for 1st appeal”.

In the determination letter of the 13th May, 2009 by the Works Council, it is clear that this ground of appeal was considered.  The finding was

“After resubmitting grounds of appeal for 1st appeal and having gone through them, the gravity of your case remained the same.”

It is not correct therefore that the Work’s Council refused to hear his grounds of appeal he re-submitted.  What the Council refused to do was re-start the hearing from the Head of Department level.  I find no fault in this decision.  This was a second level of the appeal hearing.  The Work’s Council will be dealing with record placed before it.

Clause 11.7 (b) of Respondent’s Code of conduct provides that the Work’s Council shall deal with the record of the hearing and the grounds of appeal.

Appellant’s ground of appeal on that note is also without merit.

Overally I find that this appeal is totally devoid of any merit.

Accordingly it is dismissed in its entirety.

UFAWUZ–Appellant’s Representatives

Gill, Godlonton and Gerrans–Respondent’s Legal Practitioner