Court name
Supreme Court of Zimbabwe
Case number
SC 123 of 2004
Civil Appeal 415 of 2002

TM Supermarkets v Muchetu (15/02) (SC 123 of 2004, Civil Appeal 415 of 2002) [2005] ZWSC 123 (26 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 123













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