DISTRIBUTABLE
(31)
Judgment
No. SC 37/03
Civil
Appeal No. 365/02
LEVER
BROTHERS (PRIVATE) LIMITED v ELISHA PFUMO
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA
HARARE,
SEPTEMBER 25 & NOVEMBER 20, 2003
A
Brooks,
for the appellant
T
Fitzpatrick,
for the respondent
CHEDA
JA: The appellant had employed the respondent as a supervisor.
The respondents duties included taking care of the
appellants
property which included empty cartons.
Some
cartons valued at $2 370.00 were stolen by some people who came
to deliver certain goods at the appellants premises.
Both the
respondent and the people who stole the cartons were arrested and
charged with theft. The other people were convicted
but the
respondent was acquitted.
The respondent was subsequently
charged with misconduct in terms of the appellants Code of
Conduct. He was found guilty and discharged
from employment.
The
respondent appealed to the Labour Relations Tribunal (the
Tribunal) and succeeded. The appellant now appeals against
the
decision of the Tribunal.
In its heads
of argument, the appellant argued that the Tribunal determined
whether the loss was extensive and that this determination
was
unsustainable. Mr Fitzpatrick
argued that the issues that the Tribunal should have set out and
determined were the fact of loss, negligence and finally
accountability.
I
do not agree with this submission. The loss, negligence and
accountability were not in issue. It was common cause that the
respondent was negligent, his negligence resulted in a loss of the
appellants property, and he was therefore accountable. What
was
in issue was whether the loss that occurred could be described as
extensive, as this was the basis of the dismissal of the respondent
from employment.
The
appellant argued that the Tribunal misdirected itself in determining
that in its opinion the loss was not extensive. It further
submitted that the chairman of the Tribunal misdirected himself when
he held as follows:
I
am not persuaded that the term causing loss of an extensive
nature refers to potential harm as suggested by counsel for the
respondent. The term clearly refers to actual loss and not possible
harmful effects likely to flow from the theft.
The
finding attributed to the Tribunal in para 11 of the appellants
heads of argument, to the effect that it found the respondent
to be
innocent despite the admission that a loss occurred, is not supported
by the record. It is the criminal court that acquitted
the
respondent, but the Tribunal said:
that
the respondent was negligent resulting in the theft of 16 empty
cartons boxes valued at $2 370.00 is beyond question.
What
the Tribunal did not agree with was the determination that the loss
was of an extensive nature and merited the dismissal of the
respondent from employment.
I
see no fault in the Tribunals finding that cartons worth only
$2 370.00 were stolen. They were all recovered. The
end
result is that there was no actual loss.
To
suggest that such a situation as described above amounts to a loss of
an extensive nature as stated in the Code of Conduct is
certainly a
misrepresentation and an exaggeration. The appellant drafted its
Code of Conduct and inserted the condition loss
of an extensive
nature.
I
am satisfied that the Tribunal correctly interpreted the provision in
the Code of Conduct. It cannot be extended to mean potential
loss
or refer to the level of the respondents negligence. It means
loss of an extensive nature and nothing more.
In
the circumstances, there is no merit in the appeal and it is
dismissed with costs.
CHIDYAUSIKU
CJ: I agree.
MALABA
JA: I agree.
Coghlan,
Welsh & Guest,
appellant's legal practitioners
N
H Franco & Co,
respondent's legal practitioners