Vengai Runzonza v O.K Zimbabwe

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/MD/35/2013
HELD AT GWERU ON 28 NOVEMBER, 2012              CASE NO. LC/ MD/52/2010
In the matter between



VENGAI RUNZONZA                                     –          Appellant
And

O.K ZIMBABWE                                        –          Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - In person
For Respondent     - Mrs R.T.L. Matsika(Legal Practitioner)


MATANDA-MOYO, L.

      This is an appeal against the findings of the Appeals Committee which

confirmed Appellant’s conviction and dismissal on the following charges;



   (1) willful and serious breach of established, documented and published

      company rules procedures and regulations and standing instructions

      including till procedures, safety rules security measures, customer care

      rules and motor vehicle policies amongst others; and

   (2) Gross incompetency or inefficiency in the performance of work.



The appeal is premised on the following grounds;



   1) That the Respondent failed to avail the investigations result to the

      Appellant.
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   2) That the first charge was not raised on 1 May 2010 before the

      investigations commenced.

   3) That two charge sheets were raised.

   4) That the Appellant was not represented during the hearings

   5) That the employer did not determine that matter timeously

   6) That the Respondent failed to show whether Appellant was dismissed due

      to stock take shortages or due to an act of misconduct.

   7) That the hearing committee failed to consider submissions by the

      Appellant

   8) That Respondent only picked a few people for disciplinary leaving others

      who were involved.

   9) That the selection of the committee members was done by interested

      people

   10)That the appeal committee never set to deliberate on the matter

   11)That Respondent only gave Appellant 5days to vacate the company

      house.

   12)That there was no managerial workers committee at the time of the

      hearing

   13)That the Respondent failed to avail a copy of the Code of Conduct to the

      Appellant

   14)That dismissal was unfair as others were given final warnings.



    In dealing with the appeal I shall endeavor to summarize the above

grounds and join some. Firstly the Appellant submitted that the first charges

were raised on 1 May 2010 before the investigations commenced. The other

charge sheet was raised on 18 May 2010 after the investigations.          The


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Respondent admitted that indeed two charge sheets were raised against the

Appellant one after the stock take on 1May 2010 and the other one after the

investigations on 18 May 2010.          Unfortunately this ground of appeal is a

statement of events. Appellant does not say how the Respondent erred in so

doing. Neither does Appellant allege that he was prejudiced as a result. This

ground of appeal deals with procedural irregularities. A person cannot escape

liability simply because another employee in the company failed to follow laid

down procedures. A person can only escape liability because that person is

innocent. Appellant was not simply supposed to state that he received another

charge he was supposed to show prejudice suffered by him as a result. This

court should have looked at ways to cure the defect. Since no prejudice was

suffered by the Appellant I am going to let the charges stand. At least the

Appellant was given a chance to prepare and answer to the charges raised. The

principles of natural justice were observed. Appellant understood the offences

he was facing.



     The Appellant also complained that the person who was supposed to be

the complainant was Designated Officer Machokoto. However in this case the

complainant was one Rugonye.        Rugonye had no authority to suspend the

Appellant in terms of the Code of Conduct. Page65 of the record is a letter of

suspension to the Appellant. The letter was written by a P. Machokoto. P.

Machokoto is the one who suspended the Appellant from employment in order

to facilitate further investigations.    However for some reason P. Machokoto

could not sign the letter but someone signed on his behalf. From the face of the

suspension letter it is not in dispute that P. Machokoto, the Designated Officer

suspended the Appellant from employment.           The mere fact that someone


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signed on his behalf does not take away the fact that that person was signing

for P. Machokoto. The Appellant did not argue that it was not P. Machokoto

who had prepared the suspension letter.                         I am satisfied that there was

substantial compliance with the Code and that the Appellant was suspended by

the person so authorized.



    The Appellant submitted that the Respondent failed to avail the

investigation results to the Appellant. In order to succeed on this ground the

Appellant has to show prejudice suffered as a result. In labour matters an

employee must be exonerated because such employee is not guilty of the

misconduct and not that some other employee omitted to do their job.



    It is not correct that Applicant was not furnished with the details of the

misconduct. Appellant was served with a charge sheet which attached to it were

the following;


    “(i) Date, supplier invoice, value of all invoices from which the charges arose.
    (ii) The person who received the invoices and the person who registered them in the system,
    (iii) A list of invoices which were received in January 2010 but only registered in the system
    after the stock take in February 2010.
    (v) invoice quantities which differed from the corresponding receiving schedule quantities and
    (vi) A schedule detailing the result of the stock-take .”



    I agree with the Respondent’s submissions that the above information

formed the basis of the charges against the Appellant. Appellant had enough

information to prepare his defence and the information above was sufficient to

justify his dismissal. See ZFC ltd vs Geza 1998(1) ZLR 137.


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     Appellant also submitted that he was not represented during the hearing.

The Appellant submitted that the disciplinary committee was handpicked by the

Human Resources Manager. He submitted that the committee members were

supposed to be chosen by Management and employee. Section3:2:5 provides

for the composition of the disciplinary committee. It provides;


     “3:2:5 In all cases the Disciplinary Committee shall consist of two other employees of equal or
     superior rank to the alleged offender, as well as employee representatives of equal number.”


       The Code of Conduct does not specify how the committee is chosen.

Without such I am unable to say the committee was not properly chosen. In any

case the Appellant was asked during the hearing whether he had any objections

to any of the members of the committee, to which he replied ‘no’. He cannot be

heard to complain thereafter. See page28 of the record lines7 and 8 which read;


     ’’RN:Do you have any objections to any of the Disciplinary Committee members here present?
     VR:No”



I am thus satisfied that there is no merit in this complaint.



     I have also perused the Respondent’s Code of Conduct and I am satisfied

that the Appeals committee was constituted and chaired in terms of that Code

of Conduct. I have not found any merit in Appellant’s complains on the

constitution and chairing of the various committees.




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    Appellant also complained that his matter was not concluded within 30

days. The Appellant had a right to refer the matter to a Labour Officer on the

expiration of 30days. He did not do so. See section 101(6) of the Labour Act.

Once the Appellant continued to attend the hearing after 30 days, he waived his

right to refer the matter to a Labour Officer. See Watyoka vs Zupco SC87/05.



    The Appellant submitted that the hearing committee failed to consider

submissions made by him. Appellant does not say which submissions were

ignored. It is trite that a person who alleges something must prove that

something.   The onus is on the Appellant to show which submissions were

ignored.   From a perusal of the record of proceedings I am satisfied that

Appellant was convicted due to evidence placed before the hearing committee.

Appellant also accepted that he was not cross-checking goods received. There

were discrepancies between the invoices and the guards records. In certain

instances the guards records showed nil receipt and in others the guards

records showed shortfalls. Appellant accepted that he did nothing to resolve

such discrepancies yet he was the Accountant for the Branch.



    The Appellant also complained that only a few people were disciplined

whilst others who were involved were not. The employer has a discretion to

choose who he wants to discipline as long there is evidence supporting the

charges.



    The Appellant complained that the Appeals Committee never set to

deliberate on the appeal. On perusing the Code there is no requirement that

the appeals committee or official need to call for a hearing. The appeal can take


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the form of a review of the proceedings. See Pragraph4:3:4 of the Code which

provides;


    “No appeal shall take the form of a retrial but shall be a review by the appropriate committee or
    official of the records of all previous proceedings ………”



    I have perused the other complaints by the Appellant and I am convinced

that they are baseless. Appellant has not shown any prejudice suffered by the

irregularities complained of. The Supreme Court has made it clear in the case of

Nyahuma vs Barclays Bank(Pvt) Ltd SC67/05 that not all procedural

irregularities have the effect of vitiating proceedings. The party concerned must

show that he was prejudiced by the irregularities complained of before the

proceedings can be set aside. See also Watyoka vs Zupco SC87/05 where the

court held that technicalities cannot be allowed to nullify proceedings which

reflect that an employee had a fair trial. Appellant in this case had a fair trial.

Labour matters by their very nature must be determined on merits. This is due

to the employment relationship between the parties. Such relationship requires

trust and it is only by dealing with the merits of a matter that trust can be

restored. It can never be restored by resorting to technicalities.



    Let me thus move on to deal with the merits of the case. Appellant was

Accountant for the Kwekwe Branch.                It is common cause that there was a

shrinkage of6.83% against a company standard of 0,5%. The Appellant was

convicted of wilful and serious breach of established documented and published

company rules, procedures, regulations and standing instructions. A perusal of

the record indeed shows that Applicant disregarded company procedures and

exhibited either a carefree attitude or lack of seriousness in the performance of

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his duties. The Appellant admitted variances in the quantities on the invoices

and those quantities on security guards records. Appellant on realizing the

discrepancies did nothing. As the Accountant he displayed incompetence and

lack of responsibility. Appellant admitted to the offence.




He had this to say during the hearing,


      VR: Some variances we could see for example with the Caines invoice …………, the invoice
      was 200 and the security guards saw198. --------------------. All I could do is put a star next to
      the vacancies. I cannot force them to change and yet it was possible that they could have
      miscounted.”


      For a Branch Accountant to fail to act on discrepancies constitutes gross

incompetence or inefficiency in the performance of his duties.



      From the evidence available Respondent proved Appellant’s guilt on a

balance of probabilities. I find no fault with such finding of guilty. Once the

finding of guilty was proper the appropriate penalty for the offences was

dismissal.



      Accordingly there is no merit in the appeal and the appeal is dismissed.




Wintertons – Respondent’s Legal Practitioners



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