Tonderai Sakupwanya v Fleximail Limited

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/180/2013
HELD AT HARARE ON 21 MARCH, 2013              CASE NO. LC/ H/32/2011
In the matter between



TONDERAI SAKUPWANYA                                 –            Appellant
And

FLEXIMAIL LIMITED                                   –            Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - In person
For Respondent     - Mr E. Donzvambeva(Legal Practitioner)


MATANDA-MOYO, L.




      I dismissed the appeal on the day of hearing and indicated that reasons

would follows. These are they:

This is an appeal against the findings of the Appeals hearing dismissing

Appellant from employment after confirming his guilty for contravening offence

D14 OF Art Corporation Code of Conduct, that is to say, any act conduct or

omission inconsistent with the fulfillment of the express or implied conditions of

one’s contract of employment; and contravening offence D9 of Art Corporation

Code of Conduct, that is to say, willful loss or damage of company property.

Aggrieved by such findings Appellant appealed to this court on the following

grounds;



   1) That the dismissal is not substantial and
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   2) That the allegation is invalid.



    The above grounds were difficult to understand and I agree with

Respondent’s submissions that such grounds put Respondent in an

embarrassing position of having to grope in the dark to come up with a

defence.



   On the date of the hearing Appellant tried to explain his grounds of appeal.

Appellant submitted that he was initially charged with theft. When Respondent

realized there was no evidence to support the charge of theft it changed the

charges to misuse of company property.                   Appellant submitted that he did

nothing wrong. He only performed his duties to throw away waste paper. He

refused that he disposed of books which were not waste paper. He further

submitted that his dismissal was a ploy by the Respondent to reduce employee

numbers.



   Respondent on the other hand submitted that Appellant was not being

truthful. Appellant was never charged with theft. Respondent referred me to

page 17 of the record which is the “invitation to attend a disciplinary hearing”.

In that notice Appellant was invited to attend a disciplinary hearing on 02

December 2012 for the following charges;


   “ Refusal to carry out lawful instruction or insubordination(offence D8 of the Art Corporation
   Code of Conduct.)
   Willful loss or damage of company property (offence D9 of the Art Corporation Code of Conduct)
   Any Act, conduct or omission inconsistent with the fulfillment of the express or implied conditions
   of one’s contract; (offence D14 of the Art Corporation Code of Conduct).”



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   Nowhere is the charge of theft mentioned. Appellant simply made bold

allegations without proof thereof. I am inclined to believe the Respondent that

Appellant was never charged with theft.



   From the evidence led during the hearing Appellant was found guilty on a

balance of probabilities. Evidence was led from Mr Mitutu who testified that he

had others went for a meeting leaving the pallet with books on the wheel

machine. On returning he noticed that the pallet with books had disappeared

from the wheel machine. Mitutu went to the waste disposal area and found

Appellant tearing some of the books which had not been collected by the

National Waste Collection truck. Mitutu was able to recover a few remaining

books that had not been torn. From evidence on file it is clear that Respondent

had no authority to condemn books. In any case all the three employees who

were working on the books testified that the books were not rejects.                      The

hearing committee can therefore not be faulted in reaching the decision that

the books were not rejects. See Chinake statement on page25 where he said;


   “A pallet of exercise books disappeared from the machine while we were attending a meeting.
   Quantity of books is unknown. We were supposed to work on the books after the meeting but to
   my surprise the pallet of books was no longer there.”



   I am satisfied that the Appellant was properly found guilty on having willfully

lost or damaged the Respondent’s property. He admitted to having disposed of

the books. He had only argued they were rejects but there was overwhelming

evidence that the books were not rejects and were not supposed to be thrown

away.



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   Appellant was also found guilty of any act, conduct or omission inconsistent

with the fulfillment of the express or implied conditions of one’s contract of

employment.      Appellant was employed as a General Hand or Machine

Operator’s Assistant. Appellant was not authorised to declare any books rejects

and by so doing he acted contrary to his conditions of employment. Appellant’s

argument that he only carried out his duties cannot be sustained as evidence

was overwhelming that he destroyed proper books causing loss to the

Respondent.



   The Respondent found that Appellant’s conduct warranted dismissal. The

issue of penalty involves the exercise of discretion. In the absence of proof of

abuse on the exercise of such a discretion an appeal court cannot interfere with

such penalty.     I am satisfied that the Respondent properly exercised its

discretion in arriving at the penalty of dismissal.



Accordingly the appeal fails and is dismissed with no order as to costs.




Wintertons–Respondent’s Legal Practitioners




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