OMERJEE AJA: This is an
appeal against part of the judgment of the Labour Court in which the
court allowed an appeal against the dismissal verdict returned by the
Disciplinary Hearing Committee of the appellant.
The background relevant to this
matter is as follows.
The respondent was employed by
the appellant as a Dispatch Clerk whose duties included dispatching
various company products to customers. In May 2005 the respondent was
tasked to load various products onto a delivery truck. He was given
invoices that reflected the quantities of the products to be loaded.
In executing his duties the respondent loaded 4 x 20 litres of
lacquer thinners without an invoice authorising such loading. This
act was detected by the security guard who was at the main gate
conducting spot checks. It was established that there was an over
supply of 4 x 20 litres of lacquer thinners. The respondent's
immediate supervisor was informed.
The respondent was charged with
four counts of misconduct emanating from the same act. He was charged
with neglect of duty, negligence, theft and/or aiding theft.
The respondent admitted that he
was negligent in the performance of his duties. Although there was a clear splitting of charges,
he was found guilty of all the charges and dismissed from employment.
No proper record of proceedings was kept by the Disciplinary Hearing
Committee.
The respondent appealed to the
General Manager who dismissed the appeal. He then appealed to the
Labour Court and his application was successful on the charge of
theft. The President of the Labour Court held that the sketchy facts
set out in the minutes made little attempt to disprove the
respondent's case. He concluded that there was no intention to
steal on the part of the respondent and that this aspect had not been
canvassed on the scant facts set out in the minutes. The Labour Court
then ordered the employer to reinstate the respondent without loss of
salary and benefits.
Aggrieved by this ruling the
employer has appealed to this Court.
It is apparent from the record
that the Disciplinary Hearing Committee did not keep a proper record
of proceedings. The imprecise facts set out in the minutes of the
Disciplinary Hearing Committee only indicate that the appellant was
found guilty of all four charges and was consequently dismissed. No
reasons were given for such verdict. The court a quo, too, fell into
error in failing to determine which of the four charges of misconduct
preferred against the respondent had been proved.
The position is now settled in
our law that in civil proceedings a party who makes a positive
allegation bears the burden to prove such allegation. This position
has been affirmed by this Court. In Book v Davidson 1988 (1) ZLR 365
(S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of
Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965
(2) SA 706 AD at 711 E-G:
“The general principle
governing the determination of the incidence of the onus is the one
stated in the Corpus luris simper necessitasprobandiincumbitilli qui
agit. In other words he who seeks a remedy must prove the grounds
therefore.”
The respondent was charged and
convicted of theft among other offences. The essential elements of
theft remain the same whether in a disciplinary hearing or in a
criminal trial. The position now appears settled in this jurisdiction
that where a person is charged in a disciplinary hearing with an
offence of a criminal nature, such an allegation should be proved
beyond a reasonable doubt and that it would be unfair to condemn a
man and punish him for an offence of a criminal nature on a balance
of probabilities rather than evidence which established the
commission of the offence beyond a reasonable doubt.
In this connection see Mugabe &
Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S) 364G – 365B.
For the purposes of the present
appeal, it is not necessary to determine whether or not this
principle should apply to ordinary
disciplinary proceedings in labour matters.
The respondent in this case
violated a company rule that no product was supposed to be loaded
into a delivery truck without necessary supporting documents. The
rule that the respondent had violated was meant to prevent pilferage
and protect the business interests of the appellant and was therefore
a reasonable standard which had to be respected.
The court a quo held that the
appellant failed to prove that the respondent intended to deprive the
appellant of his paint. In its findings the President of the Labour
Court stated that:
“The sketchy facts set out in
the minutes made little attempt to disprove the appellant's case.
He admitted that he negligently loaded consignments of paint which
had no invoice. The charge of theft requires proof of a guilty mind.
In other words the loading must have been deliberately done with
intent to deprive the owner of his paint. This aspect was not
canvassed on the facts set out on the minutes.”
The evidence on record shows that
the respondent used a 4 x 5 litres invoice to load 4 x 20 litres.
When asked to explain his conduct he said it was a mistake on his
part as he was holding two separate invoices at the time for the same
commodity one for 4 x 5 litres and the other for 4 x 20 litres. No
evidence was led as to how he procured the 4 x 20 litres of lacquer
thinners from the stores, or who may have procured it.
It is this Court's view that
the appellant company failed to discharge the onus upon it. The fact
that the respondent admitted that he mistakenly loaded 4 x 20 litres
of paint and gave the security guard a wrong invoice does not mean
that he intended to deprive the appellant of his paint. The
appellant was required to prove that the respondent's intention was
to permanently deprive the appellant of his paint. There is nothing
to disprove the respondent's assertion that he made a mistake when
he loaded 4 x 20 litres of lacquer thinners into the truck instead of
4 x 5 litres.
In our view, the conclusion of
the court a quo that the intention to deprive the owner of his goods
on the charge of theft had not been established, is a correct
finding. There is therefore no basis upon which this Court can
interfere with the above finding of the court a quo because there is
no evidence on record that shows that the respondent intended to
permanently deprive the appellant of his paint.
The papers filed of record reveal
that the respondent was facing four counts of misconduct two of which
were of negligence and he pleaded guilty to those counts. However,
the court a quo in finding that the respondent was not guilty of
theft or aiding theft did not make a finding as to whether or not he
was guilty of negligence.
The respondent had admitted
having been negligent. At the very least, the admitted facts proved
that he was negligent in executing his duties. The court a quo
should therefore have substituted a verdict of guilty of negligent
performance of duty. As all the facts are before us, this Court can
correct this anomaly without the need to remit the matter.
Accordingly, the order of Labour
Court must be set aside and substituted with one, finding the
respondent guilty of negligence.
On the issue of the appropriate
penalty, it is common cause that the prescribed penalty for negligent
performance of duty in terms of the appellant's code of conduct is
a final written warning. As there is no need to remit the matter,
that is the penalty that should be substituted.
Accordingly it is ordered:
1. The appeal is allowed with
costs.
2. The order of the court a quo
is set aside and the following substituted:
“(i) The appellant's
dismissal is set aside.
(ii) The appellant is found
guilty of negligent performance of duty.
(iii) The appellant is given a
final written warning.”
ZIYAMBI JA: I agree
GARWE JA: I agree
Costa &Madzonga, appellant's legal practitioners
