Sonica Mashamba v Art Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/110/24
CASE NO LC/H/967/23
1 FEBRUARY 2024
14 MARCH 2023
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 1 FEBRUARY 2024 & 14 MARCH 2023

In the matter between:-

SONICA MASHAMBA

ART CORPORATION LIMITED

JUDGMENT NO LC/H/110/24 CASE NO LC/H/967/23

APPELLANT

RESPONDENT

For the Appellant For the Respondent

BEFORE HONOURABLE KUDYA, J:

Adv. S Banda (Legal Practitioner)

N. Madya (Legal Practitioner)

This is an appeal against the respondent’s employer’s decision which resulted in appellant losing her job following allegations that she had performed her duties below what was expected of her by letting 10 000 pens leave dispatch without proper invoicing and 40 rulers also leaving without proper invoicing. The appellant’s contest is on 2 fronts that is she contests the guilty verdict and she also contests the dismissal penalty.

As regards verdict she contends that she should not have been found guilty since the respondent charged her for non dispatch of 11 000 pens yet later unravelled that only 10 000 pens were in issue. She reasoned therefore that on account of that discrepancy she should have been acquitted. It is noteworthy that the charge against appellant was that she failed in her duty by letting pens go uninvoiced. Thanks was to the honesty of Swift Company which alerted respondent that an excess of 10 000 pens had been received by it without invoices. It is patently clear that appellant’s duty was to ensure that goods left the premises with the correct documentation. Her failure to do that indeed showed that she had failed in her duty. It therefore matters not that pens in issue were 10 000 or 11 000. The quantum could only be mitigatory

when it came to penalising her. The ground of appeal premised on the quantum of pens being without merit should fail.

On the 2nd ground she says that since it was established that her colleague took the pens from the warehouse without her knowledge she thus could not be found guilty of not doing her duty well. It is granted that indeed Jinya took out pens without authority but it need be noted that such conduct is what appellant was employed to guard against. The fact that Jinya succeeded in taking the pens out without authority clearly confirms that appellant fell below expectation of her duty in that regard. That she was overwhelmed can only be mitigatory in her case. The ground also lacking in merit should fail. From the foregoing discussion it is clear that appellant’s guilt was well founded. It therefore does not pass the test of the threshold calling for the vacation of a guilty verdict. For success of appellate relief See Hama v NRZ 1996)1) ZLR 664.

Turning to the issue of penalty it is settled that employer has the penalising discretion See Nyawasha v CIRCLE Cement SC-10-03. Being that as it may it is pertinent for the facts of the mitigation to put in their correct perspective. In the case at hand evidence was led that the dispatch order on the day in issue was so outrageously large that extra personnel had to be deployed to assist. That admission by the respondent gives credence to the fact that omissions or errors could not be out of the ordinary in such a set up. It is granted that 10 000 pens translate to 200 boxes but when that is viewed against the volumes which were said to have been handled on that day there is nothing unusual in accepting that 200 boxes could go unnoticed. The court is satisfied that on the authority of Ndeleziwa v Celsy SC-49-15 such an omission by appellant called for a penalty not as drastic as dismissal. The court is satisfied that the penalty was exceedingly harsh given all the facts of the matter. The unusual nature of the day’s dispatch called for more lenience on the part of the penalising body. It is clear that the discretion was exercised unreasonably in that regard. The dismissal penalty can therefore not be made to stand. In the ultimate the court is satisfied that the appeal vis penalty is well placed and should succeed.

IT IS ORDERED THAT

Appeal vis guilty verdict being without merit it be and is hereby dismissed. Appeal vis penalty it being merited it be and hereby succeeds. The dismissal penalty is set aside and substituted with a penalty of a written warning to subsist for 6 months.

Each party bears own costs.

Wintertons, Respondent’s Legal Practitioners