Tembo Kamubvumbi v OK Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/454/13
HELD AT HARARE 12TH SEPTEMBER 2013
CASE NO LC/H/826/12
JUDGEMENT NO LC/H/454/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/454/13

HELD AT HARARE 12TH SEPTEMBER 2013	    CASE NO LC/H/826/12

AND 27 SEPTEMBER 2013

In the matter between:-

TEMBO KAMUBVUMBI						-	Appellant

And

OK ZIMBABWE							-	Respondent

Before The Honourable L Kudya, Judge

The Honourable L.M. Murasi, Judge

Appellant		:	In Person

For Respondent 	:	Mr R.C. Nyandoro

(Human Resources Manager)

MURASI, J.

Appellant was employed as a Butchery Supervisor at Respondent’s Cameron Street branch in Harare.  Appellant was dismissed in terms of the Code for:

“Unsatisfactory work performance – lack of skill which the employee expressly or by implication holds himself out to possess.”

Following the disposal of butchery stock worth $550,80 which had gone bad, Appellant was brought before a hearing committee and was dismissed as a result.

Appellant is not satisfied with this decision and has approached this Court for relief.  His grounds are not at all clear.  The Court had to carefully go through his notice thoroughly to glean his reasons for appealing.  The Appellant avers that:

All the hearings were held in his absence therefore denying him the right to be heard.

That his submissions were not taken into account.

That the committee did not take into account that there were massive breakdowns of freezers leading to the spoiling of butchery stock.

That the penalty imposed was unreasonable in the circumstances.

It is quite clear that the record shows that the parties did not adhere to laid down procedures as required in terms of the Rules.  However, the Court is mindful of the extreme difficulties that “self-actors” face in putting the facts together before the Court.  In Passmore Malimanji vs CABS SC 319/2005, the Labour Court was held to be a court of equity, concerned not with the formalities and technicalities of the legal profession but with achieving just and equitable resolution of disputes between the parties.

Appellant states that he was not afforded a hearing.  Page 25 of the record shows that there was a hearing held on 13th July, 2011.  Appellant is recorded as being part of that hearing.  The questions and answers in the record clearly show that Appellant was present and participated in the hearing.  Appellant was asked why he was “keeping rotten meat” and his response was “we used it to make sausages.”  He was further asked why he kept on piling the meat and his answer was “Most of the meat was allocated”.  The responses that are attributed to Appellant in the record are the same that he has repeated in this Court.  His appeal to the next stage did not require personal attendance as explained by a Union official as the determination could be made on the documents filed.  The Court finds that this ground of appeal must fail.

The next issue to be considered is whether the hearing committee took into account all the evidence submitted to it in totality before making a decision. Appellant’s averments of fridge failures were dismissed as there was no evidence to show that the job cards were spot attended to, meaning that the fridges were repaired.

Evidence was also submitted which show that a Branch Manager previously employed at the branch had requested for the destruction of stock worth $864,00 so as to start on a ‘clean state’.  This therefore meant that Appellant has caused this stockpile after the fridges had been “cleaned-up”.  Evidence also showed that it was Appellant who was in charge of stock-takes in his department.  This meant that he had the sole responsibility of removing old stock before putting in new stock.  The minutes of the hearing show that Appellant had eight (8) years experience as Butchery Supervisor and worked for Respondent for close to seventeen (17) years.  The Court is of the view that the evidence was duly considered by the hearing committee and this ground of appeal must fail.

The last issue to be considered is the penalty imposed on Appellant.  The employer and appeals committee were of the considered view that the offence was of such a serious nature as to warrant dismissal.  In Circle Cement (Pvt) Ltd Vs Chipo Nyawasha SC 60/2003 it was held:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of penalty, less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

The Court is of the view that it cannot be said that the decision arrived at was unreasonable in the circumstances.  This ground also fails.

In the result, the Court finds that the appeal is without merit and is accordingly dismissed.

Each party to pay its own costs.

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L.M. MURASI

JUDGE

......................  I agree

L KUDYA

JUDGE