Trymore Vurayayi v Rainbow Towers Hotel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/470/2014
HARARE, 14 JULY 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/470/2014

HARARE, 14 JULY 2014 &				  CASE NO LC/H/749/2013

1 AUGUST 2014

In the matter between:

TRYMORE VURAYAYI						APPELLANT

And

RAINBOW TOWERS HOTEL					RESPONDENT

Before the Honourable L M Murasi	:	Judge

For the Appellant	Ms Lora Makuzva  (Trade Unionist)

The Respondent in default

MURASI J:

The respondent did not appear on the date of the hearing despite the fact that its legal practitioners were served on 7 July 2014. The appellant’s representative stated that they would want the Court to deal with the matter on the merits.

The appellant submitted that the Appeals Committee had erred in not finalising the matter within thirty (30) calendar days in terms of the Code. It was further stated on behalf of the Appellate that the charge of theft was not proved as the guest in question had not been called to testify. The appellant further submitted that the penalty of dismissal was too harsh in the circumstances.

A reading of the record shows that the appellant was employed by the respondent as a bedroom hand. He is alleged to have removed beverages without the requisite authorisation. He distributed some of the beverages to his colleagues and the others he placed in his locker. The appellant alleges that he had been given oral permission by the guest to take the goods in question. The appellant also awaited the supervisor’s authorisation to dispose of the goods in question.

The Court notes that the appellant was aware that in order to take these goods, he needed written authorisation from the guest. This he did not have. The appellant was also aware that in the absence of written authorisation from the guest, he needed authorisation from the Executive Housekeeper. This again he did not have. He however proceeded to distribute the goods and one “Joseph Maripakwenda took another bottle of whisky and drank it instantly.” This means that the appellant was already disposing of the goods without authorisation. The court inquired from the appellant’s representative why the goods were not left in the room which could then be locked until the arrival and authorisation by the Executive Housekeeper. The response was that the goods would be unsafe in the locked room. The court found the explanation clearly unsatisfactory. The appellant conceded that these drinks were those normally referred to as “mini bar” and they were valued at $399-00. Was the Appeals Committee in error in confirming the guilty verdict of the Disciplinary Committee? I think not. Here was a man who knew what the rules of the employer were and flagrantly proceeded to disregard them.

The next point that the appellant raises is that the matter was supposed to have been finalised within thirty calendar days as provided for in the Code. However, the appellant did not state what prejudice he suffered as a result of the delay in hearing the matter. It is trite that procedural considerations should not be allowed to vitiate proceedings unless it can be shown that the other party would suffer prejudice. As already observed, the appellant has not shown the court the prejudice he suffered as a result of the delay in finalising the matter.

The appellant has also stated that the penalty of dismissal was unduly harsh in the circumstances. Precedent has shown that the imposition of a penalty on an employee is largely the discretion of the employer. An appellate court will only interfer where it finds that the penalty is unreasonable in the circumstances. The question to be asked is whether it was reasonable for the employer to dismiss. If no reasonable employer would have dismissed him then the dismissal was unfair. However if a reasonable employer would have reasonably dismissed him, then the dismissal should be deemed fair. The court associates itself with the following assertion in Nampak Corrugated Wapeville  v Khoza (1999) 2 BCLR 108 (LAC) at 113 F – I:

“… the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. A court should therefore not lightly interfer with the sanction imposed by the employer unless, the employer acted, unfairly in imposing that sanction. The question is not whether the court would have imposed the sanction imposed by the employer but whether in the circumstances of the case the sanction was reasonable.”

The court does not find any misdirection in the penalty imposed on the appellant. Any reasonable employer would have dismissed the appellant.

In the result, the court finds the appeal to be devoid of merit and it is accordingly dismissed.

The court makes the following order:

The appeal is hereby dismissed for lack of merit.

The decision of the Appeals Committee is hereby upheld.

There is no order as to costs.