The appellant was employed in the capacity of Plant Foreman
in the handling department of the respondent company. In September 2010, he was
charged with;
“(1) Theft or fraud; (2) aiding stealing, alternatively;
and (sic) (3) any act, conduct or omission inconsistent with the fulfilment of
the express or implied conditions of your contract.”
Following a disciplinary hearing, he was acquitted on the
charge of theft and fraud but was convicted of aiding stealing and any act,
conduct or omission inconsistent with the fulfilment of the express or implied
conditions of his contract of employment.
Dissatisfied, the appellant appealed to the Chief Executive
Officer of the respondent. Having gone through the documents and the evidence,
the respondent's Chief Executive Officer concluded that there was no evidence
suggesting that it was the appellant who had made certain alterations on the
original gate pass which was to be used to take out the empty plastic bags that
formed the basis of the allegations against the appellant. Notwithstanding this
finding, the Chief Executive Officer proceeded to confirm the findings of the
disciplinary committee as well as the penalty of dismissal imposed in
consequence thereof.
Unhappy with the decision of the Chief Executive Officer,
the appellant appealed to the Labour Court. In essence, the appellant's ground
of appeal was that the disciplinary committee had erred in its assessment of
the evidence and that on the evidence he had not aided or abetted the theft of
any property.
In its findings, the Labour Court was of the view that the
appellant had been correctly found guilty by the disciplinary committee as he
had facilitated the taking of the green bags which were not reflected on the
gate pass.
Consequently, the court dismissed the appeal.
Before this Court, the appellant attacks the finding of the
court a quo on the basis that the court grossly misdirected itself on the facts
and consequently came to the wrong conclusion. It is clear from the appellants'
grounds of appeal that, essentially, he is attacking the findings of fact made
by the court a quo and, prior to that, by the disciplinary committee.
The position is now settled that an appellate court has no
power to interfere with the findings of fact made by a lower court unless it is
persuaded that the findings complained of are so outrageous in their defiance
of logic that no sensible person properly applying his mind to the question to
be decided would arrive at such a conclusion. Barros and Another v Chimponda
1999 (1) ZLR 58 SC; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670D.
The reason for this approach is obvious. Faced with the
same facts, reasonable people might reach different conclusions without any of them
properly being labelled as unreasonable. Computicket v Marcus N.O. & Others
(1999) 20 ILJ 342 LC 346.
It is necessary to mention at this stage that both parties
are agreed that the conviction for any act, conduct or omission inconsistent
with the fulfilment of the express or implied conditions of a contract of
employment was improper.
I agree that it was never proved that the appellant had
been involved in endorsing the words; “Broken bags”, that later appeared on the
original gate pass. The Chief Executive Officer of the respondent accepted this
to be the position. In these circumstances, he should not have confirmed that
conviction. The court a quo, likewise,
should have set aside that conviction.
In the result, the issue that falls for determination
before this Court is a simple one. It is whether the finding by the
disciplinary committee, which was subsequently endorsed by the Chief Executive
Officer and the Labour Court, that the appellant aided the stealing of green
bags, is, on the evidence, so outrageous in its defiance of logic that no
reasonable tribunal or court would have arrived at such a conclusion.
The Labour Court concluded as follows:-
“The evidence on record shows that the appellant was
involved in directing the loading of the broken bags. He was also involved in
originating the gate pass which he ensured that Mr Kawondera signed. He also
endorsed amendment (sic) on the gate pass. Appellant also admitted that he
authorised the loading of the green bags. However, the green bags were not
mentioned on the gate pass…,.”
On the facts before the disciplinary committee and the
Labour Court, it is clear that the purchaser of the empty bags, one Muponda,
came to buy scrap ex SOA bags. “SOA” stands for Sulphate of Ammonia. It is not
in dispute that the two men that Muponda sent to select the bags did in fact
select SOA bags and that when they came upon the green bags in question, they
paused and asked the appellant's subordinate, one Tongoona, whether they could
take these as well. The green bags must have been different for these two men
to have asked whether they could take them as well. In fact, Mugwagwa, in his
evidence before the disciplinary committee, confirmed that the bags were almost
new. It is common cause that Tongoona in turn inquired from the appellant if
the two men could also take the green bags. The appellant agreed that they
could do so.
I agree with the respondent's submission that Muponda had
purchased scrap ex SOA bags and what appellant allowed to be taken out were not
just the SOA bags but the green bags as well. Muponda had not bought any green
bags.
It is also not in dispute that the gate pass originated
from one Nyamwanza, a subordinate of the appellant. The appellant admits he
inserted the words “plastic scrap” on the gate pass. He said nothing about the
green bags. The description of the contents ex facie the gate pass was
therefore misleading.
I further agree that the whole purpose of describing the
contents of a package on a gate pass is to enable the guards in the Loss
Control section to verify the same upon exit. If the description of the
contents did not matter, as the appellant seems to suggest, then it would not
have been necessary to endorse “scrap ex SOA bags.”
The totality of the evidence on record seems to suggest
that the green bags were almost new and were not the scrap SOA bags reflected
on the gate pass. In the circumstances, I agree with the submission that it was
the authorization by the appellant that paved the way for the dealers to take
the green bags as well.
In these circumstances, the finding by the court a quo that
the appellant aided theft cannot be said to be irrational or outrageous in its
defiance of logic. If anything, the finding was consistent with the totality of
the facts which were not in dispute.
Accordingly, I make the following order:-
1. The appeal succeeds to the extent that the conviction
for “any conduct or omission inconsistent with the fulfilment of the express or
implied conditions of the contract of employment” is set aside.
2. The appeal is otherwise dismissed with costs.
