Z.f.c. Limited V Damson December

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/289/13
HELD AT HARARE 18TH JUNE 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/289/13

HELD AT HARARE 18TH JUNE 2013		CASE NO LC/H/923/12

In the matter between:-

Z.F.C.	LIMITED						Appellant

And

DAMSON DECEMBER					Respondent

Before The Honourable L Kudya, President

The Honourable P Muzofa, President

For Appellant		Mr R Moyo (Legal Practitioner)

For Respondent		Mr T Kujinga (Legal Practitioner)

MUZOFA, P:

This is an appeal against the National Employment Council for the Chemicals and Fertilizers Manufacturing Industry’s determination reinstating the Respondent in the Appellant’s employ.

The Respondent was employed by the Appellant company as a truck packer.   The circumstances leading to the charge are that a truck driver employed by another company contracted by the Appellant was found with thread used to thread fertilizer bags by the Appellant Company.  This truck driver, one Magodora indicated that he had been given the thread by the Respondent.  It is common cause that, the thread belonged to the Appellant Company.  The Respondent was charged  for contravening  the express or implied terms of his contract with the Appellant.

At the disciplinary hearing four witnesses were called Mr Magodora the truck driver, Mr Ziteya who loaded the truck in question, Mr Gavi the guard who intercepted the thread and Mr Moyo the shift supervisor who spoke on the accessibility of the thread.  It was not disputed that the thread had not been stolen on the date when it was discovered but rather it had been stolen from prior stocks.  Respondent was dismissed after the disciplinary proceedings.  He was also arrested and appeared before a criminal court.  He was acquitted.  After this acquittal Respondent noted an appeal against his dismissal to the NEC Appeals Committee.  The NEC Appeals Committee set aside Respondent’s dismissal.  This is the decision which the Appellant Company appeals against.  There are various grounds of appeal and they crystalize to

Whether there was sufficient evidence to prove a case against the Respondent.

That the charges preferred against the Respondent are broad they should have been more specific.

In such a case where the sufficiency of evidence is questionable, the standard of proof that has to be achieved has to be addressed.  It is trite law that in a civil case the standard of proof should be proof on a balance of probabilities.  In  Zesa v Dera 1998 (1) ZLR 506 (S) the court explained the rationale in having a test on a balance of probabilities in that

“… in a criminal case one is primarily concerned with doing justice to the accused.  In a civil case one is concerned to do justice to each party.  Each party has a right to justice and so the test for that justice has to balance their competing claims.  Hence the ‘balance of probability’ test”

See also Hoffmann and Zeffertt SA Law of Evidence 4th ed at p528.

Similarly in this case the evidence that was required to find the Respondent liable was proof on a balance of probabilities. Indeed the Respondent had been acquitted by a criminal court, which applies a higher standard of proof, proof beyond a reasonable doubt.  It does not follow that an acquittal by a criminal court necessarily leads to an acquittal even before an employer see Johnson and Fletcher Ltd v Ngundu a judgment by the Labour Relations Tribunal of 31 August 1993.

An analysis of the evidence led before the disciplinary committee is warranted in order to make a decision on the sufficiency of that evidence against the Respondent.

The first witness was Mr Magodora the driver of the truck. The driver stated that he arrived at the Appellant Company after 9.00 am, there were trucks ahead of him.  He established that his truck would be loaded after lunch, he decided to sleep in the truck.  Appellants’ employees started going for lunch.  About 10 minutes after other employees had gone for lunch he heard a knock on his window.  He saw that it was the Respondent who gave him a parcel that he said was his wife’s and that the Respondent would collect it from CRD.  Magodora said he had known the Respondent for 4 years.  He opened the parcel  and realised it was sewing thread in an old fertilizer bag.  He later asked one Ziteya if the company issued scrap thread but he did not get a response.  His evidence was that after loading he drove to the exit gate with the thread  he was given by the Respondent partially in sight.  He also said he had placed the parcel on his thin bed in the truck and it was visible from outside.

The second witness was one Ziteya. He was employed by the Appellant Company as a packer.  On the day in question he was at the bagging area together with a contract employee.  They loaded Magodora’s truck.  While loading Magodora asked him something about ‘scrap shinda or simbi’ but he did not fully understand the question.  He did not respond, he later learnt that the driver Magodora had asked about scrap sewing thread.  The Disciplinary Committee members sought clarification on what the question by Magodora was and the witness indicated that it was “ is scrap thread allowed?”

The third witness was Philip Gavi.  He was the security guard manning the Appellant’s gate on the day.  His evidence was that when Magodora’s truck approached the gate, he searched it and discovered the bag – containing the sewing thread on the driver’s bed in the truck.  The bag was partially covered.  Magodora did not declare the bag.  On enquiry Magodora said Damson, the Respondent had given him the thread.  The witness indicated that on the day in question he had seen the Respondent when he went for lunch between 1215 and 1220 hours.  His evidence was that this was after all the other employees had gone for lunch.  Respondent was the last to go, no other employee went for lunch after him and he was alone.  He stated that the driver was aware that his truck would be searched on exit.

The last witness was one Moyo a shift supervisor with the Appellant Company.  His evidence was meant to outline some operational issues. His evidence was that the thread used to stitch bags was accessible to employees.  The Company kept reserve thread, which was kept in a locker in the charge hand’s office which was at that time not locked.  The office was usually not locked during working hours.  He further stated that external drivers cannot easily access the thread since company personnel would be around.  Truck drivers were expected to remain inside their vehicles until they were loaded.  The witness indicated that they had accounted for all the stocks of thread that had been issued for use on that day including that on the bagging lines. The witness suggested that the recovered  thread was not removed on the day in question but had been taken sometime before and hidden somewhere waiting to be taken out.  In his evidence he also indicated that they had audited the usage of thread going back wards and they noted that at times the thread which had purportedly been used was excessive in comparison to the work done.

It was submitted on behalf of the Appellant that the NEC Appeals Committee discarded portions of evidence on the basis that it was inadmissible.  The NEC Appeals Committee indeed ruled that the evidence of Magodora was hearsay and therefore inadmissible.  That conclusion is difficult to accept.  Hearsay evidence as submitted by the Appellant’s legal practitioner is defined by Hoffman and Zertert in SA Law of Evidence 4th Edition at page 263 is

“Oral or written statements by persons who are not parties and are not called as witnesses are inadmissible to prove the truth of the matters stated.”

Magodora gave evidence of what transpired between him and the Respondent.  The time estimates he told the disciplinary committee was his understanding of the time, and was cross examined thus the veracity of his evidence was tested.  The NEC Appeals Committee highlighted that Magodora said he arrived at the Appellant Company at 0900 hours however the evidence shows that he said he arrived after 0900 hours.  So if the records showed that he arrived at 1000 hours his evidence is correct.  There are no contradictions and his evidence was not hearsay evidence.

It was submitted on behalf of the Respondent that Magodora’s evidence should have been treated with caution.  He was found in possesion of recently stolen property and was therefore the primary suspect.  This argument was based on the doctrine of recent possession.  In such a case it was submitted that where such a witness is called to give evidence he should be treated as an accomplice witness and there should be evidence aliunde to corroborate his evidence.

Therefore “… before a trial court can safely convict on the testimony of such a witness it must satisfy itself that, that danger has been excluded…” S v Mupfuudza 1982 (1) ZLR 271, at 273 C.

I believe there was adequate and credible corroboration of Magodora’s evidence.  Such corroboration came from Gavi, who said the bag was partially covered in Magodora’s truck.  If Magodora was the thief this bag would have been hidden.  This corroborates Magodora’s evidence that he placed the bag on the thin bed in the truck.

In addition Gavi indicated that Magodora was aware that the truck would be searched at the gate.  If he was the thief he would not have placed the bag with the thread where it could easily be seen.  Moyo the shift supervisor’s evidence was that the stolen thread was not from that day’s allocation.  By inference then the thread was stolen sometime back.  Therefore it was likely that the thread was stolen by one of the employees.  The critical part of his evidence was that truck drivers remained in the trucks until they were loaded.  This evidence points that the likelihood that a driver like Magodora could access the office where that thread was kept was highly unlikely.  His evidence was not challenged.  Ziteya’s evidence that Magodora asked about scrap thread provides some corroboration.  If Magodora was the thief it was likely that he would not talk about the thread whether scrap thread or new.  The discrepancy on the time when the thread was given to Magodora is not fatal to this case.  A reconstruction of the events are that a group of employees went for lunch, Respondent being one of the employees did not go to lunch at the same time with others.  It was not disputed that Respondent went for lunch after other employees had gone to lunch.  This is the time that Appellant claims Respondent gave Magodora the bag with the thread.

Supposing Magodora IS treated as an accomplice witness his evidence is acceptable.  See Zimbabwe Financial Holdings v Mafunga SC45/05 since there’s evidence aliunde to corroborate his evidence.  In any event it has been pointed out before that the standard of proof in this case is on a balance of probabilities.  The submissions by the Respondent’s representatives cite predominantly criminal matters where the standard of proof is beyond a reasonable doubt.

It was submitted on behalf of the Respondent that the evidence corroborating Magodora’s evidence was circumstantial evidence.  That circumstantial evidence was based on speculation and therefore did not qualify for an inference to be drawn implicating the Respondent.  A close examination of Respondent’s arguments in the heads of argument filed of record paragraph 13 thereof shows that the point is only on the time the Respondent is alleged to have gone for lunch.  In my opinion circumstantial evidence is not based on the time he went for lunch only, this is but one piece of the evidence an inference can be drawn against the Respondent.  The court is indeed alive to the settled law that circumstantial evidence is based on with drawn inferences from objective facts as stated in Mugari v Machiri 1987 (1) ZLR 164.  In this case the objective facts came from Moyo’s evidence that only employees could access the place where the thread was.   The only inference that can be drawn from these facts is that the Respondent was responsible for the removal of the thread and gave it to Magodora.

The second ground of appeal is that the NEC Appeals Committee erred in finding that the charge was broad it should have been specific. Respondent’s legal representative submitted that the Appellant did not produce the contract that it claimed Respondent contravened.  In addition it was submitted that the proper charge was theft since the evidence is that he stole sewing thread.   However there was no averment of any prejudice suffered by the Respondent as a result of the said non-specific charge. The charge preferred against the Respondent under the Appellant’s code schedule 5 thereof provides

“10  Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of one’s contract.’

On the 1st of August 2012 by letter Appellant wrote to Respondent notifying him of an alleged breach of contract and set out exactly what was being alleged against the Respondent.  Respondent also submitted to the Appellant a response denying  the charges.  These events indicate that Respondent was aware of what he was facing.  Respondent was eventually formally advised of investigations for the breach of schedule 5 of Appellant’s code of conduct.  It cannot be said that the citation of the code changed anything, the Respondent was aware of the charge he was facing.  Clearly a specific offence theft could have been preferred.  However the employer has the discretion on which charge to prefer, as long as there is sufficient evidence to prove the charge.  In this case Appellant opted to charge the Respondent under its schedule 5.  Appellant cannot be faulted for so doing.

The Arbitrator erred in making a finding that the charge was too broad.  This ground of appeal succeeds.

Respondent’s representative’s Heads of Argument raised the issue that Appellant had not produced the Respondent’s contract to prove how it was breached.   This issue was not argued before the court and there’s nothing in the notice of Response relating to this issue.  Indeed the contract was not produced at any of the stages where the Respondent appeared in relation to this issue. That as it may be, the court has to determine to what extent does this irregularity prejudice the Respondent.  It seems from the time the Respondent was confronted by the Appellant, they referred to the matter as a breach of contract.  The nature of the conduct relates to dishonesty and the duty of good faith is one of the corner stones of the employer-employee relationship.  It was expected that Respondent as an employee should rather take care of his employer’s property instead of unlawfully taking the said property.  Respondent cannot escape liability on that basis.  This expectation by the employer of good faith cannot be classified as outrageous.

Respondent legal representative also sought to produce an affidavit authored by Respondent explaining why he went for lunch late on that day when the offence was committee.  Mr Moyo for the Appellant opposed this on the basis that it was new evidence that should have been produced at the disciplinary hearing so that it is subjected to cross examination to test its veracity.  This is a crucial piece of evidence particularly in that it was alleged that Respondent went for lunch late than his colleagues.  Appellant sought to draw an inference that the cause of the delay was the fact that Respondent was lying in wait to deliver the fertilizer bag with the thread to Magodora out of sight of the other employees.  If indeed Respondent was doing something else he should have proferred the explanation from the time he was alleged to have committee the offence.  Even in his written response before the hearing disciplinary committee he did not produce it, for the evidence to be tendered  before this court when it cannot be subjected to cross examination maybe improper.  Therefore the court will not consider the evidence filed by the Respondent’s legal practitioner.

In the circumstances the appeal must succeed.  There was sufficient evidence against the Respondent on a balance of probabilities.  Employers expect to engage and work with people they trust, Respondent had a duty of good faith not to steal Appellant’s property.

Accordingly the following order is made:-

The appeal being with merit be and is hereby upheld, the NEC Appeals Committee’s ruling is set aside.

Each party to bear its costs.

……………………………………………. I agree

PRERSIDENT L KUDYA

……………………………………….

PRESIDENT P MUZOFA

Gill, Godlton and Gerrans, Appellant’s Legal Practitioners

Maunga, Maanda and Associates, Legal Practitioners