Stephen Eria v Servcor (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/746/2016
HARARE, 7 OCTOBER 2016 &
18 NOVEMBER 2016
CASE NO LC/H/830/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/746/2016

HARARE, 7 OCTOBER 2016 &				         CASE NO LC/H/830/2014

18 NOVEMBER 2016

In the matter between

STEPHEN ERIA							APPELLANT

Versus

SERVCOR (PVT) LTD						RESPONDENT

Before the Honourable Muchawa J

(IN CHAMBERS)

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant lodged his appeal on 22 September 2014. A response to the appeal was duly filed on 28 October 2014. Both parties are not legally represented.

Despite being notified to pay for the costs of set down on 8 March 2016 and 24 June 2016, the appellant has failed to do so.

I am proceeding to determine the matter on the record in terms of section 89 (2)(a)(i) of the Labour Act [Chapter 28:01].

The appellant was employed by the respondent as a porter for a twelve year period. At the relevant time he was based at Cafca (Pvt) Ltd when it was alleged that he had stolen two pieces of steak and chips. He was charged of theft in terms of the National Employment Code of Conduct, SI 15 of 2006.

The disciplinary authority found him guilty and dismissed him from employment. The appeals officer confirmed the guilty verdict and dismissal penalty.

Aggrieved by the appeals officer’s decision, the applicant approached the National Employment Council for the Catering Industry for Conciliation. Failing that, the matter ended  up at arbitration. The arbitrator upheld the appeals officer’s decision.

On appeal before me are the following grounds of appeal:

The arbitrator’s decision is harsh;

The arbitrator misdirected herself in law by treating the appellant’s length of service as an aggravating factor in which the law states otherwise;

The arbitrator failed to take into account appellant’s submission that the competent charge in the circumstance was wilful disobedience to a lawful orders and not theft (sic).

The arbitrator misdirected herself in falling (sic) to take into account the circumstances which led to the appellant being in possession of the western food instead of the traditional food he was supposed to eat.

The arbitrator erred in failing to recognize mitigatory factors which would not warrant a dismissal.

In the notice of response filed, the respondent raises three points in limine, being:

That the appeal is not on a question of law as required in respect to appeals against an arbitral award.

That there are no grounds of appeal cited and that this makes the appeal a nullity.

That there are no prospects on the merits.

It is also averred that the arbitrator was correct in upholding the decision to dismiss the appellant as he committed an act of dishonesty which goes to the root of the employment contract by undermining the trust between the parties. It is stated further that there are no material facts warranting the intervention of this court.

In my opinion the issues that fall for determination are:

Propriety of the charge preferred.

Propriety of the guilty verdict.

Propriety of the dismissal penalty.

Indeed on filing the appeal on 22 September 2014 the appellant’s grounds of appeal were stated:

“The arbitrator failed to understand that the alleged misconduct was not committed.”

When the respondent filed its notice of response on 28 October 2014, that was the only ground of appeal on record. Without the leave of this court, the appellant filed supplementary grounds of appeal on 3 November 2014.

The only ground of appeal properly before this court is that on the propriety of the guilty verdict. This is a point of law. The grounds of appeal smuggled before the court on 3 November are accordingly struck off as being improperly before me.

I now turn to consider this ground of appeal.

Propriety of guilty verdict

The evidence before the disciplinary authority was that the appellant was apprehended by a security officer at the gate intending to take out some meat and chips hidden in his jacket pocket without authorization. It is noted that the appellant acknowledges in a report dated 26 April 2012 that he knew he was not allowed to go outside with such items without prior authorization.

In the circumstances the conclusion reached that the appellant unlawfully took such food with the intention of depriving the respondent permanently cannot be impugned.

The disciplinary hearing minutes show that two witnesses gave evidence in proof of the offence. They also show that the appellant absented himself from the hearing despite the notice to attend.

I conclude therefore that the appellant was properly found guilty of theft.

Accordingly the appeal being without merit is dismissed.