FARM COMMUNITY TRUST

v

CLAUDIOUS CHEMHERE

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & OMERJEE AJA

HARARE, JULY 3, 2012 & JUNE 17, 2013

L Uriri, for the appellant

No appearance for the respondent

GOWORA JA: This is an appeal against the decision of the Labour Court in which it dismissed an appeal by the appellant against an award made by an arbitrator directing the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer possible, pay damages. The background to this matter is as follows. The respondent was employed as a security guard at the appellant’s premises in Marlborough. During the morning of 13 June 2009 it was discovered that approximately thirty five (35) litres of diesel had been stolen from one of the appellant’s trucks parked on the premises.  Following an investigation conducted by the appellant, the respondent was charged with theft in terms of the National Code of Conduct Regulations, S.I. 15/06 (“the National Code of Conduct”). On 1 July 2009 the respondent was informed that he had been found guilty and that consequently his contract had been terminated with effect from 23 June 2009.

Aggrieved by the decision to dismiss him, the respondent appealed to the appellant’s executive director. The appeal was unsuccessful and the respondent was advised accordingly on 10 July 2009. The respondent was further advised that he could appeal to the appellant’s Board of Trustees within seven working days if he so wished. On 16 July 2009 the respondent prepared his appeal but it was only date stamped on 24 July 2009 at GAPWUZ where one of the Trustees is employed. Although it is not clear what GAPWUZ stands for, it would appear to be the workers’ union headquarters.  There was no response to the appeal. On 18 August 2009 the respondent then wrote a letter to the Labour Officer complaining that his appeal had not been heard and asking for a fair hearing. Following a certificate of no settlement, the Labour Officer then referred the matter for arbitration on the issue whether or not the dismissal of the respondent was fair.