Judgment No. SC. 139/04
Civil Appeal No. 288/02
FARAI CHATAIKA v HIGHFIELD BAG LIMITED
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, CHEDA JA & ZIYAMBI JA
HARARE, MAY 31, 2004 & JUNE 16, 2005
V H Fitzpatrick, for the appellant
A Moyo, for the respondent
CHEDA JA: The appellant was employed by the respondent as a production clerk. His duties included originating documents to show that certain goods had been dispatched. The goods would be loaded into a vehicle and then delivered to a particular destination, where the supervisor of the place of delivery would count and sign for the goods as having been received.
The appellant originated seven transfer notes indicating that certain goods had been sent to a sister company of the respondent. The appellant accompanied the driver on each occasion when the goods were delivered. Instead of the supervisor of the sister company signing for the delivered goods, the appellant wrote the names of the supervisors to indicate that they had received the goods, when in fact they had not done so.
When one of the supervisors discovered what the appellant had done, he queried this as he had not received the goods referred to in the documents. Investigations revealed that the appellant had done this on seven occasions.
The appellant was dismissed from employment following a charge of misconduct. The appellant appealed within the structures of his employment in terms of the Code of Conduct (“the Code”) of that company and failed. The appellant’s further appeal to the Labour Relations Tribunal (“the Tribunal”) was not successful.
He has now appealed to this Court against the decision of the Tribunal.
The respondent has a Code of Conduct that lists acts of misconduct and the penalties for them. Paragraph E(xii) and (xiii) set out the following acts of misconduct:
“(xii) Bribery, fraud, corruption
(xiii) Theft, misappropriation, forgery.”
In terms of the Code these call for summary dismissal.
The letter that was addressed to the appellant headed “NOTIFICATION OF HEARING” reads as follows in relevant part:
“It is alleged that you acted in a fraudulent manner by writing, signing and retaining delivery documents which were supposed to be signed and kept by the recipients of the goods.”
At the hearing before the disciplinary committee the appellant did not deny the allegation laid against him.
Before the Tribunal, the appellant admitted that he had written the names of other people as having received the goods when he had not seen those people. He accepted that he was not supposed to act in the way he did. He queried why he was charged with fraud.
The evidence from the two workers, whose names the appellant had written down, was that the appellant’s duty was to forward the goods, not to sign for them. They claimed that the appellant falsely wrote their names when they had not received the goods. They complained to management about their forged signatures.
Mr Gonyora, who represented the respondent company before the Tribunal, said there was a discrepancy in that what the appellant supplied did not tally with what was produced as there were more goods than were needed for production.
While it was stated that nothing went missing, it is clear that what the appellant did had some potential, though not actual, prejudice. Mazhindu, one of the two workers whose names had been written down by the appellant, put it correctly when he said:
“If goods had gone missing the blame would have fallen on me.”
This would be because his name had been forged on the documents reflecting that he had received the goods. The fact that all the goods reached their destination means that no actual prejudice resulted, but there was nevertheless potential prejudice that would result from the fact that Mazhindu’s name had been forged if anything had gone wrong.
The argument that there was no actual prejudice cannot excuse the appellant’s conduct. No-one knows what the appellant’s intentions were, as the matter was discovered within a short time.
It is clear, however, that the appellant forged the signatures of two of his workmates, thus giving false evidence to the company that the goods had been received by certain persons when he knew this to be false. The Code provides a penalty of summary dismissal for the above conduct.
On the “Question of Law” issue, the Tribunal found that a forgery had been committed. Whether one argues that this was a finding of fact or a question of law, a question of law arises because the appellant put in issue the question whether he was guilty of forgery if no actual prejudice resulted. This Court, was, in the circumstances, entitled to hear the matter on appeal.
It is accepted that no actual prejudice was proved; but the actual wrongful act was proved, that of forging the names of other employees and giving the impression that they had received the goods. I therefore find no fault in the decision arrived by the Tribunal.
The appeal is dismissed with costs.
CHIDYAUSIKU CJ: I agree.
ZIYAMBI JA: I agree.
V H Fitzpatrick & Co, appellant's legal practitioners
Coghlan, Welsh & Guest, respondent's legal practitioners