Stanford Chiomba v TM Pick and Pay Supermarket (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/64/2022
HARARE, 19 JANUARY 2022 &
CASE NO LC/H/343/21
11 MARCH 2022
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/64/2022

HARARE,   19 JANUARY 2022 &			   CASE NO LC/H/343/21

11 MARCH  2022

In the matter between:-

STANFORD CHIOMBA				                 APPELLANT

AND

TM PICK AND PAY SUPERMARKET		                 RESPONDENT

PVT LIMITED

Before the Honourable Kudya J

For the Appellant		M. Huruwe  (Unionist)

For the Respondent		F. Mutemeri (HR Manager)

KUDYA, J:

This is an appeal against the decision of the appeals officer where he upheld the guilty verdict and dismissal penalty meted on appellant following allegations of conduct inconsistent with conditions of his contract in violation of section 4(a) of the Model Code.

Facts giving rise to the appeal are that appellant who was an assistant branch manager with respondent’s  Mutare main branch was tasked with overseeing a butchery stock take.  He failed to do it properly leading to a shrinkage of $534 185,86. He was brought before a disciplinary committee which found him guilty and penalised him with dismissal.

He appealed internally without success.  He has now appealed to this court on the grounds which are subject of this judgment.  Both appellant and respondent agreed that ground 1 was a review ground and requested that it be struck off.  This judgment therefore only addresses the remaining grounds.  Each of the grounds is addressed below:-

Shrinkage of $534 185,85

Appellant contends that the shrinkage figure was just plucked from the air.  To the contrary respondent maintains that appellant was aware of the shrinkage it having been built up by among other things use of wrongs code lines to conceal stock shortfall. It is settled law that the appellate court only comes in if there gross unreasonableness in the exercise of the trier of facts discretion. (See Hama v NRZ 1996 (1) ZLR 664 (s).  In the case at hand appellant conceded that figures on his sheet did not correspond equally with those on the checker’s list.  He claims that he randomly checked some product lines.  It is that casual approach that in the court’s view could have occasioned the loss which was suffered.  The ground being without merit should fail.

Delegation of duty

Appellant contends that it is a misrepresentation that he should have not delegated the checking duty. A reading however of the record shows that the issue was not about delegation but the duty being done properly him being overally in charge had to ensure that such had been executed properly. The ground also lacking in merit should fail.

Verification process

Comments made on shortage apply here with equal force and deserve no restatement.

Extra Charges

Appellant contends that the appeals officer dismissed him on the basis of new charges on finished products and cut beef.  It need be noted from the outset that what gave rise to the allegations were the mismatches on products etc to give a wrong picture so the court does not appreciate what new charges appellant cries foul of.   The ground also being without merit should be dismissed.

Overstating of stock

This is just a truncated form of the main ground that appellant says was found guilty on insufficient evidence.  Sadly the record does not support that contention so it can not assist in the appeal.

Findings out of lack with evidence

As stated earlier appellant took one appeal ground and shredded it into various ones.  This has already been argued so can not assist in his appeal.

Fabricated figures

The ground speaking to shrinkage adequate argues this grounds and deserves no repetition.  In the ultimate all appeal grounds being without merit the appeal should fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed. Each party bears own costs.