Tafunga Gunda v Printflow (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/243/14
HELD AT HARARE 13TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/243/14

HELD AT HARARE 13TH FEBRUARY 2014		CASE NO LC/H/177/10

& 25TH APRIL 2014

In the matter between:-

TAFUNGA GUNDA					Appellant

And

PRINTFLOW (PVT) LTD				Respondent

Before The Honourable R.F. Manyangadze, Judge

For Appellant		L.S. Ncube (Legal Practitioner)

For Respondent		S Bhebhe (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the National Employment Council for the Printing, Packaging and Newspapers Industry Appeals Committee (NEC) which confirmed appellant’s dismissal from respondent’s employment.

The appellant was charged with misconduct in terms of the Printing, Packaging Code of Conduct Statutory Instrument 148 of 2009 (the Code), sections 18 and 20 (2).  These provisions are framed as follows:

“Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her contract.”

and

“Attempted theft – an act by an employee that creates a chance to steal or any evidence to the effect that an employee intended to steal company/customer/another employee’s property”

Particulars of the misconduct were that on 23 January 2009 at or around 2000 hours the appellant entered respondent’s premises without authority. He attempted or intended to make exercise books using waste paper.

The Disciplinary Committee found appellant guilty of the alleged misconduct and dismissed him from employment.

Appellant’s appeal to the respondent’s Appeals Committee was unsuccessful.  He further appealed to the NEC which confirmed the Disciplinary Committee’s decision.

Having exhausted all the domestic remedies, he then lodged an appeal with this Court.  His grounds of appeal, in summary are that

The NEC erred at law in failing to hold that he had authority to enter company premises.

The NEC erred at law in failing to hold that he did not attempt to make exercise books using waste paper.

It was submitted, on behalf of the respondent, that he had been given authority to enter the company premises by the security guard.  The respondent further asserted that he came to the workplace for some “maize deal”.  It is not clear what the details of the maize deal were.

In respondent’s grounds of appeal, he averred that the NEC erred at law by holding that he had no authority to enter the premises, and that he intended to make exercise books.

The appellant submitted quite correctly that the respondent’s grounds of appeal are in fact on questions of fact.  The respondent was represented by his Trade Union at the time.  It appears they did not appreciate the distinction between questions of fact and questions of law.

It is important to note that the Heads of Argument, which were prepared the respondent’s legal practitioner, do not persist with the assertion that the NEC erred at law.  They rightfully place the argument in the realm of factual findings.  It is a question of whether the NEC properly assessed the evidence on record.  In other words, the NEC was dealing with the factual findings of the Disciplinary Committee.

The record shows that the Disciplinary Committee considered the evidence of one Nyama and the Security Officer.  That evidence shows that there was a discussion between Nyama and the respondent, in which the issues of maize and making exercise books were mentioned.  The evidence also shows there was a discussion with one Makonje, on the issue of making exercise books.  Nyama’s evidence reads; inter alia:

“The time we got here, Nyabadza was also here.  He was leaving the Marketing Office.  Gunda (Respondent) told me of the maize issue then the exercise books.  Makonje had wanted Gunda to make exercise books…  Gunda mentioned something about exercise books when we had failed to get some maize.”

The Security Officer also weighed in with evidence concerning the proposal to make exercise books.  He referred to a telephone discussion between the respondent and Makonje, in which the two were planning to make some exercise, books at the workplace.  The Security Officer explained to the Disciplinary Committee that he pretended to play along so that he could foil what he described as “a criminal proposal.”

It was in the wake of this evidence when that the Disciplinary Committee returned a verdict of guilty and imposed a penalty of dismissal.

The NEC had to look at this same evidence, when considering appellant’s appeal.  The NEC found that the evidence against the appellant was well corroborated. Its conclusion was:

“All the people involved in the matter did point out that Mr Gunda had indicated that his reason for going to the company premises was to make exercise books thought the maize issue was raised.”

In my view, there is no reasonable basis on which to temper with the findings of the NEC.  These were factual findings that cannot be lightly interfered with by an appellate court.  The findings were based on evidence on record. In my view, they were well supported by that evidence.  Appellant has referred the court to a number of authorities, on the well settled position that an appellate court should not lightly interfere with the findings of a trial court.  One that is often quoted is that of KORSAH JA in Hama v National Railways of Zimbabwe1996 (1) ZLR 664 (SC), at p 670;

“… an appeal Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.”

On the question of penalty, again it is the issue of not lightly interfering with the discretion of the employer.  Once the employer views, on the facts given, the employee’s conduct as serious, it is the employer’s prerogative to assess and impose an appropriate penalty.

In the present case, no prejudice occurred.  The prejudice was only potential, as the appellant was unable to accomplish his intended mission.  What however, the respondent took seriously is that appellant engaged in conduct that created a chance to steal.  The conduct was inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

In Innscor Africa (Pvt) ltd v Letron Chimoto SC 6/12, MALABA DCJ had this to say:

“The unanimous view of the Court is that the Labour Court seriously misdirected itself in coming to the conclusion it did.  There is no question that the appellant had contested the allegation by the respondent that he was acting under work pressure.  Indeed, the Labour Court acknowledged this in the third paragraph of its reasons for judgment.  The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers.  The finding that the pizza was only $4.00 was of no consequence.  The offence committed involved a betrayal trust and confidence reposed in the respondent by the appellant thereby going to the root of the relationship between the employer and employee.  In the circumstances the holding by the Labour Court that the respondent ought to have been corrected is a misapplication of the provisions of s 7 (1) of S.I. 15 of 2006.  The provision was not intended to apply in a situation where the misconduct of an employee goes to the root of the contract of employment.”

What was said in respect of the employee in that case can be said of the appellant in casu.  There was no prejudice to the employer and the court had been urged to consider a corrective ratherthan punitive penalty.  What however the Disciplinary Committee and the NEC considered crucial was the betrayal of trust, and this outweighed all other mitigatory features.

In the circumstances, the NEC cannot be faulted in upholding the decision of the Disciplinary Committee, both in respect of the verdict and the penalty.

It is accordingly ordered that:

The appeal be and is hereby dismissed in its entirety.

The decision of the NEC Appeals Committee be and is hereby upheld.

Each party shall bear its own costs.

MANYANGADZE

JUDGE