DISTRIBUTABLE (98)

Judgment No. SC. 123/04

Civil Appeal No. 415/02

TM SUPERMARKETS v WESTONE MUCHETU

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, OCTOBER 11, 2004 & JANUARY 27, 2005

T Biti, for the appellant

The respondent in person

MALABA JA: This is an appeal from a judgment of the then Labour Relations Tribunal (“the Tribunal”) setting aside the dismissal of the respondent (“Westone”) from employment with the appellant (“TM”) and ordering that he be reinstated in his original position with no loss of salary and benefits with effect from the date of suspension, failing which he be paid damages, the quantum of which was to be agreed upon by the parties or calculated by the Tribunal.

The background facts are these. Westone was employed as a till operator at TM’s branch in Chegutu. On engagement he received training in the skill required by a till operator and had worked for about two years when he started incurring shortages of cash in his till. The cash shortages were of amounts above what TM considered could be incurred by a skilled till operator and increased on each successive occasion.

The pattern the shortfalls took started on 25 March 1999 when $44.46 could not be found in the till. Six days later, on 1 April 1999, Westone incurred another shortfall in the amount of $211.35. On 20 April 1999 there was a shortage of cash amounting to $240.04. On each of these occasions the till machine was found to have been functioning properly. It was established that no-one else could have tampered with the till. Westone had keys to the till which he locked each time he was not operating it.

For each of the cash shortages incurred before 20 April 1999 Westone received a written warning drawing his attention to the fact that the cash shortage was above what was acceptable for a competent till operator. The written warning given to Westone for the shortfall incurred on 20 April 1999 advised him of possible dismissal should he repeat the misconduct.

On 28 April 1999 Westone incurred a shortfall of $835.65. He was then charged with contravening s 3 of the Group IV offences under the Employment Code of Conduct for the Commercial Sector (“the Code”); that is to say, unsatisfactory work performance due to “lack of skill which the employee expressly or by implication holds himself out to possess”.

On 7 May 1999 Westone appeared before a designated officer to answer the charge. He did not deny the fact that the shortfall of $835.65 had occurred. The recorded transactions showed that the money ought to have been received. The machine was operating properly. He suggested that someone could have tampered with his till when he was on a lunch break. The evidence showed that no such interference with his till could have taken place because he had locked the till and taken the keys with him.

The designated officer held that the cash shortage incurred on 28 April 1999, on its own or viewed cumulatively together with the previous shortfalls, established that unsatisfactory work performance exhibited by Westone was due to lack of skill in operating the till. As he had found that Westone had committed a dismissable offence he referred the case to the employer, as he was required to do under para 5.2 of the Code.

On 20 May 1999 the employer, represented by the branch manager, considered the facts of the case and found Westone guilty of the misconduct charged against him. Some of the facts considered were that the amount of the cash shortage incurred on 28 April 1999 was large; there was no evidence that it was a result of a genuine human error; the cash shortage on which the charge was based was not an isolated incident; it showed a pattern of conduct with previous shortfalls in respect to which written warnings had been given to Westone so that he could improve his work performance; and all the shortfalls were related to the manner he operated the till. The employer held that, taken cumulatively, the cash shortages showed that Westone lacked the skill he had expressly or by implication held himself out to possess.

Westone was dismissed from employment. He appealed to the local joint committee of the National Employment Council for the Commercial Sector (“the negotiating committee”), which allowed the appeal. TM then appealed to the negotiating committee which allowed the appeal. Dissatisfied with that decision, Westone appealed to the Tribunal.

Before the Tribunal Westone argued that a single incident of a cash shortage could not be sufficient evidence of lack of skill in a till operator. Impliedly he conceded that a series of cash shortages could cumulatively constitute sufficient evidence of lack of skill which a till operator would have expressly or by implication held himself out to possess.

The learned chairman of the Tribunal held that the cash shortage of $835.65, on which the charge of misconduct preferred against Westone was based, was a single act on which reliance could not be placed as proof of lack of skill in the till operator. He said:

“I am of the strong view that incurring a single shortfall does not amount to lacking the skill of operating a till. The adage, ‘one swallow does not make a summer’, is apt.”

The appeal was allowed and the decision of the negotiating committee upholding the conviction of Westone of the offence charged against him was set aside.

The grounds on which the appeal to this Court is based are that:

“1. The court a quo grossly erred, as a question of law, in completely ignoring the fact that the respondent had existing previous written warnings and therefore termination was called for.

2. Further, and in any event, the court erred in ignoring the fact that the till shortage in question indeed amounted to unsatisfactory work performance or displayed lack of skill as a till operator.”

Both grounds of appeal are, in my view, well founded criticisms of the judgment of the Tribunal. The facts on which the determination of the question on which the appeal to the Tribunal was based show that the employer and the negotiating committee considered the cumulative effect of the cash shortages incurred by Westone during the period of thirty-one days from 25 March 1999 to 28 April 1999 as proof of lack of the necessary skill as a till operator.

It was a misdirection on the part of the learned chairman of the Tribunal to determine the question whether TM had established the misconduct charged against Westone on the basis that proof of his incompetence as a till operator was based on the single incident of the cash shortage incurred on 28 April 1999.

The view that because it is a single incident of a cash shortage it cannot constitute sufficient proof of lack of skill in a till operator is a mistake. It seems to me to be a confusion between the duty to draw inferences of facts and the duty to pronounce law. Lack of skill in an employee is a fact which can be established by inferences drawn from any other relevant circumstances, including isolated acts, depending on their nature and quality.

There may be isolated incidents from which inferences of lack of skill in a till operator may not be drawn, such as where the cash shortage is of a paltry amount due to a lapse in operating the till. A single but huge shortfall may be a proper circumstance from which to draw the inference of the fact that the till operator was incompetent in the performance of his duties.

It is clear that in declaring that a single cash shortage cannot be sufficient proof of lack of skill in a till operator, regardless of its nature and quality, the learned chairman of the Tribunal was pronouncing a decision of law when he should have been deciding a question of fact, whether the cash shortage was of the nature and quality to justify an inference of lack of skill in the till operator as the cause of his unsatisfactory work performance.

An employee would have lacked the requisite skill which by implication he would have held himself out to “possess” if evidence showed that he failed to exercise reasonable skill, for it is of no practical benefit to an employer to have an employee undertake to “possess” the required skill and not undertake to exercise the same.

The learned chairman of the Tribunal believed that for the misconduct charged against Westone to be established TM had to show by evidence that he was devoid of skill as opposed to failure to exercise it.

In light of the misdirection on the part of the Tribunal, the question to determine is whether in all the circumstances of this case TM established on a balance of probabilities that the unsatisfactory work performance exhibited by Westone in the incurrence of the huge cash shortage on which the charge of misconduct was based was due to lack of skill which he expressly or by implication held himself out to possess as a till operator. My view of the facts is that TM discharged the onus on it.

There was the evidence of the cash shortage, which in itself was a huge shortfall representing a substantial loss to TM. There was evidence that such a substantial loss could not just occur if a competent or skilled till operator exercised reasonable skill in the performance of his duties. This was not a case of an isolated cash shortage representing a single lapse in operating the till. There was evidence of three other shortfalls, which involved relatively large amounts of money incurred by Westone within thirty-one days work. The shortfalls which occurred in one month’s work, when taken cumulatively, show lack of skill in Westone as the cause of his unsatisfactory work performance. Each shortfall occurred when he was operating the till, suggesting that the real cause thereof was the manner in which he operated the till machine. He did not exercise reasonable skill. The till machine was found to have been working properly and no-one could have tampered with it.

The appeal succeeds with costs. The order of the Tribunal is set aside and substituted with the following –

“The appeal from the judgment of the negotiating committee is dismissed with costs.”

SANDURA JA: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners