SC 31-13 - NYARUMBU v SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD

LAWSIGN NYARUMBU

v

SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD

 

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GARWE JA & PATEL AJA

HARARE, MAY 7, & JULY 9, 2013

 

B. Makururu, for the appellant

D. Ochieng, for the respondent

 

PATEL AJA: After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

  1.  The appeal is allowed with costs.
  2. The judgment of the Labour Court is hereby set   aside and substituted as follows:
  1. The appeal is dismissed with costs.
  2. The Appellant shall reinstate the Respondent to his former position without loss of salary and benefits or pay damages to the Respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course.  These are the reasons.

BACKGROUND

The appellant was employed by the respondent as a stores clerk.  On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the stores book.  After the disappearance of the pump, the co-employee was convicted of theft.  The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.  The matter was referred to the relevant National Employment Council and then to an arbitrator.  The latter referred the case back to the respondent’s disciplinary committee to rehear the matter. The disciplinary committee found the appellant guilty of theft and that decision was confirmed by the respondent’s appeals committee.  On appeal to the National Employment Council, it was ordered that the appellant be reinstated. The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

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