Judgment record
Sunny Chikosi v Safeguard Security
[2013] ZWLC 27MC/27/20132013
Viewing: Word Document (Legacy)
Loading document...
Full text archive
Judgment text copy
A clean reading copy is shown below. Use Download for the original formatted document.
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. MC/27/2013
HARARE ON 23 RD
MAY & 30 TH
AUGUST, 2013 CASE NO. LC/MC/33/2012
In the matter between
SUNNY CHIKOSI – Appellant
And
SAFEGUARD SECURITY – Respondent
Before The Honourable L.Kudya, President
Appellant : In Person
For Respondent: Mr B.S. Nhepera (Group H.R. Director)
KUDYA, L.
This is an appeal against the decision of the
Negotiating Committee Appeals Board which confirmed the
Appellant’s dismissal following allegations of
unsatisfactory performance of his duties at the
Respondent company where he was employed at the time of
the alleged misconduct.
Facts of the case are that on 13th October 2011
Appellant was carrying out his security guard duties at
Tiger Transport where Respondent Company had been
contracted to provide security services. During that
period 2 heavy duty batteries were stolen from one of
the trucks parked at the place where the Appellant was
guarding.
To aid him in his duties Appellant also had the
benefit of guard dogs with him. Judging from the scene
1
JUDGMENT NO.
MC/27/2013
of crime, it was observed that durawall panels had been
removed suggesting that the thieves who stole the
batteries accessed the premises by breaking the said
panels. Following the theft of the batteries,
Respondent company preferred misconduct charges against
the Appellant in terms of the Respondent’s Code of
Conduct.
In particular, the Appellant was charged with
“unsatisfactory work performance” “gross incompetence,
inefficiency or negligence in the performance of
duties”. A disciplinary hearing was conducted in his
matter where he was found guilty of the misconduct
complained of and consequently dismissed from work.
The value of the batteries was also deducted from
his salary. He appealed to the Local Joint Committee
which set aside his dismissal and reinstated him on the
basis that he had been doubly punished as he had also
been made to compensate value of the batteries from his
terminal benefits.
Aggrieved by the reinstatement the Respondent
appealed to the Negotiating Appeals Committee which
concluded that the Local Joint Committee had erred by
reinstating the Appellant yet it was clear that he had
committed the misconduct complained of and had
voluntarily paid for the value of the batteries as he
had occasioned loss to the Respondent company.
2
JUDGMENT NO.
MC/27/2013
The Negotiating Appeals Committee thus set aside
the Local Joint Committee’s decision and confirmed the
Appellant’s dismissal. The Appellant got aggrieved by
the confirmation of his dismissal and to that end filed
this instant appeal where he is praying that the
decision of the Negotiating Appeals Committee be set
aside and that the decision of the Local Joint
Committee reinstating him be upheld.
Appellant’s grounds of appeal are set out as below:
(1)Negotiation Committee grossly erred and misdirected itself by concluding
that Appellant had paid for batteries of his free will yet the company had
forced him to do so to protect his job.
(2)Negotiating Committee erred to conclude that Appellant had connived with
the thieves to steal the batteries yet there was no reasonable evidence to
that effect.
(3)Negotiating Committee erred to conclude that theft occurred during the
night and Appellant detected it at 5.30 am following morning yet it
occurred between 4.00 am and 5.00 am and until 5.30 am Appellant was
looking for what had been stolen.
(4)Negotiating committee erred in that it did not consider Appellant’s
response but passed a decision based on the Respondent’s grounds of
appeal only.
(5)Negotiation Committee erred to conclude that Appellant had paid for
batteries of his own free will yet he had been given the option to pay or
face disciplinary action but Respondent went on to deduct Appellant’s
salary without his consent and went ahead to charge him with the
misconduct as well .
3
JUDGMENT NO.
MC/27/2013
(6)Negotiating Committee erred in concluding that the Appellant had
performed his duties negligently without considering that the area which
Appellant was guarding was about 200 m x 250 m.
(7)The truck driver was in the truck the whole night yet he did not detect the
theft of the batteries of the truck.
(8)Signature on the letters of paying are not the correct signatures. They are
not Appellant’s signatures.
In the result the Appellant prayed that the Negotiating
Committee’s decision be set aside and that the Labour
Court substitutes its own decision.
A reading of the record before this Court, in
particular the index thereof shows that the Respondent
company did not file any formal response to the appeal
grounds in the Labour Court. It is however worth noting
that the oral submissions which Respondent company made
on the date of the appeal hearing pointed to the fact
that the Respondent company was opposed to the
Appellant being granted the relief which he had prayed
for in this Honourable Court.
In essence, it maintained that the Appellant had
carried out his duties negligently and that the
inference that he had connived with the thieves
emanated from the fact that access to the batteries
seemed to have been gathered by damage to durawall
panels yet Appellant had the aid of guard dogs.
To that extent, had he been vigilant and not part
of the thieving the reasonable thing would be that he
4
JUDGMENT NO.
MC/27/2013
would have heard the dogs bark to scare away the
thieves unless if he had instructed the dogs not to
bark. Respondent also maintained that Appellant had
tendered compensation for the batteries of his own free
will and his signatures on the deduction forms bear
testimony that the money had been deducted with his
blessings.
It also maintained that there was no double
punishment emanating from the compensation as the
payment was primarily making good the loss which had
been suffered for the batteries value yet Respondent
company had been prejudiced more by loss of business
from the company who had lost their batteries as well
as further security contracts due to the image painted
by the case involving the Appellant that Respondent
company could not keep its clients properties safe upon
being contracted to provide security services.
The only major issue for determination in this case
was whether it could be said that the Negotiating
Committee misdirected itself grossly in the respects
enunciated in the Appellants Grounds of Appeal. If that
is so the next question would be what is the remedy in
the circumstances?
When the appeal hearing commenced Appellant
presented his oral submissions in person. The
Respondent on the other hand did so in the person of
one Nhepera – Respondent’s Group Human Resources
5
JUDGMENT NO.
MC/27/2013
Director and one Muza, the Respondent’s Operations
Manager.
During the oral submissions one of the issues which
was topical was the question of the deduction of the
Appellant’s salary to compensate for the batteries
whilst the Respondent was adamant that Appellant had
allowed that deduction and signed for it, the Appellant
maintained that that was not the case and stated that,
his signature had thus been forged to that extent. Even
under cross examination of Muza, Appellant was adamant
that at no stage did he authorize such a deduction. To
conclude that aspect parties agreed that the hearing
would continue in Harare on the issue of handwriting
this time possibly with the handwriting expert in
attendance giving evidence.
On the date when the parties met in Harare the
Respondent’s representatives advised that Court that it
would cost them double what they had deducted from
Appellant’s salary to secure the attendance of the
handwriting expert. In their view it thus did not make
economic sense to persist on the attendance of the
expert.
They tendered a refund of money they had deducted
from the Appellant’s salary so that the appeal could
only be determined on the rest of the grounds minus the
compensation component.
6
JUDGMENT NO.
MC/27/2013
Appellant agreed that the issue of the expert be
dropped on condition that the Respondent would refund
him the money they had deducted from his salary for the
batteries. He however maintained that such not
withstanding he was still of the view that the
Negotiating Committee had erred and that its decision
had to be set aside and in its place the Court to
confirm the decision of the Local Joint Committee which
had reinstated him. This put to rest the issue about
the deduction. Grounds of Appeal one and five thus fell
off as they were both premised on the deduction as
compensation for the batteries.
As regards the remaining Grounds of Appeal these
were dealt with, each in turn as appears below. It is
also worth noting that the law as regards appeals of
this nature is quite settled. See AG vs. Howman 1988
(2) ZLR 402.It is only where the Court is satisfied
that the discretion deposed in the lower tribunal was
abused that the appeal Court can be compelled to upset
it.
Ground 2
On connivance the argument arose from the fact that
Appellant had the aid of a guard dog and one could not
envisage how the thieves could have broken into the
yard and carried away such big batteries without the
guard noticing or hearing it unless if the dogs were
under instruction not to bark.
7
JUDGMENT NO.
MC/27/2013
It is clear that the supply of dogs to Appellant
was meant to aid his duties and how the thieves could
steal the batteries under his nose with the dogs thus
becomes a mystery. The Court is satisfied that the
conclusion of connivance drawn on the above facts can
not be said to have been a ridiculous one. It thus
passes the test of proof on a balance of probabilities.
In the result this ground has no merit and it should
fail.
Ground 3
On the argument about the time of the theft, it is
the Court’s view that what is critical is the fact that
communication about the theft was only made after 5.30
am yet the theft had been committed earlier than that.
Appellant says it was between 4.00 am and 5 am and
thereafter he had been checking to see what could have
been stolen.
This statement gives credence to the fact that it
was only after 5.30 am that the theft became public
knowledge. Apart from the guard who was mandated to
guard the place no-one else could be categorical of
when the events occurred.
It is thus an issue of semantics that the theft
was between 4.00 am and 5.00 am or much earlier as
concluded by the Negotiating Committee. There is thus
no merit in this ground as well and it should also
fail.
8
JUDGMENT NO.
MC/27/2013
Ground 4
The test to be applied in labour cases is proof on
a balance of probabilities (see case of ZESA vs. Dera
SC 79/98. There was therefore nothing amiss about the
Negotiating Committee being convinced by the
Respondent’s version as opposed to the Appellant’s.
As was even observed by this appeal Court, the odds
favoured the version given by the Respondent taking
into account the mandate which the Appellant was
charged with and how he failed to discharge it properly
on the date of the alleged misconduct. The Court thus
finds no misdirection on the part of the Negotiating
Committee in this respect. To that end this ground must
also fail as it has no merit.
Ground 6
A reading of the oral submissions made by the
parties point to the fact that the vastness of the
place was not disputed but the issue was more on the
fact that the Appellant’s major focal point was where
the truck whose batteries got stolen was.
The static guard and the patrol guard debate in
relation to how Appellant operated did not assist much
in the case. As has been noted even if the Negotiating
Committee had considered at length the issue of the
vastness of the place it is the Court’s view that it
would not have detracted materially from the complete
picture of all the facts in the case.
9
JUDGMENT NO.
MC/27/2013
The cumulative effect of all the facts of the
matter pointed to the negligent discharge of duty by
the Appellant hence the 200 m x 250 m argument is of no
moment in his case. This ground therefore also lacks
merits and it has to fail.
Ground 7
The presence of the truck driver in the truck the
whole night did not detract from the Appellant’s
discharge of his core business of guarding the
Respondent’s client’s property. No evidence was led as
to whether the driver was asleep or awake in that
truck. In any event, it is not him who was charged with
the responsibility of looking after the truck and its
batteries. Instead, Appellant was and he fell foul of
the discharge of his duties to the detriment of the
Respondent company. This ground also lacks merit and it
should also fail.
In the ultimate, it is clear that there was no
misdirection on the part of the Negotiating Committee
when it confirmed the Appellant’s dismissal. In the
Court’s view it is the Local Joint Committee which
erred to reinstate the Appellant on the basis that he
had been doubly punished.
It is worth noting that the payment did not detract
from Appellant’s guilt and even if the payment had been
regular that would not have entitled him to
reinstatement. The case had enough evidence on a
10
JUDGMENT NO.
MC/27/2013
balance of probabilities to find Appellant guilty and
penalty being within the discretion of the employer.
See Malimanji vs. CABS 2007 (2) ZLR) 77 the Respondent
could thus not be faulted for concluding that dismissal
was appropriate in the circumstances.
Respondent stated that, the extent of the damage
could not be narrowed down to the loss of the batteries
only but to the loss of image within the industry which
would cost its clients and thus prejudice its
operations and staff alike. The Court is thus satisfied
that all the appeal grounds lacking in merit should
accordingly fail.
IT IS THUS ORDERED THAT
(1) The appeal being without merit in all respects
be and is hereby dismissed.
(2) The decision of the Negotiation Committee
confirming Appellant’s dismissal is
accordingly upheld.
(3) Each party to bears its own costs.
L. Kudya
PRESIDENT – LABOUR COURT
11