Dealing with dishonesty

corporations, leading to questions being asked whether proper measures would have been put in place that monitor workers’ clandestine activities.
Obert Soza worked for Zesa Holdings (Pvt) Ltd as a customer liaison attendant.
Zesa had employed him for 15 years when he was charged with misconduct, that is dishonesty and conduct likely to bring the authority into disrepute.
The power utility alleged that between July and October 2010, Soza received money from various customers through a Mr Makaudze and Mr Chidyavana to facilitate crediting of customers’ accounts with false payments.
Soza would then hand over the money to one Mr Chisvo who — in liaison with other Zesa officials — would manipulate customers’ accounts to the disadvantage of the company.
Soza was suspended to facilitate the employer’s investigations into the alleged fraudulent activities.
When he was initially questioned, Soza gave a statement in which he admitted his guilt.
Soza accepted that he was being used in the whole fraudulent process.
He would receive money from customers who were told to pay an amount of above 40 percent of the total amount owing.
When they paid this money, fraudulent entries would be made on their accounts and it would appear as if they had paid their bills.
Soza indicated that he was not exactly sure as to how the crediting of the accounts would be done, but he was being used to receive money and forward it to Mr Chisvo.
The confession was in a statement dated October 6, 2010. However, on October 23, 2010, Soza disowned his earlier statement.
He alleged that he had been forced and intimidated to accept what the investigators wanted, and that he wrote the statement under duress.
Soza denied conniving with the other employees. Zesa then conducted a hearing into the matter.
The disciplinary committee considered written statements from persons who implicated Soza as the middleman for clients in Chitungwiza.
Soza was said to have worked in Harare before and was thus considered the perfect link with Zesa employees in Harare.
Benett Chidyavana implicated that Soza was the middleman in the fraudulent activities of cancelling bills without the knowledge of Zesa authorities. Muchineripi Chisvo also implicated Soza.
The committee considered that Soza had accepted his guilty and that three people had also implicated him. This could not have been a mere coincidence.
Soza was found guilty and fired, before seeking recourse at the Labour Court.
His ground of appeal was “unfair termination of contract on a pre-determined case and to determine the appropriate remedy”.
Zesa responded to this ground of appeal by stating that it was meaningless and was thus vague and embarrassing.
It further submitted that it would itself argue that Soza was convicted on the basis of overwhelming evidence.
Soza’s ground of appeal on the merits was indeed vague and embarrassing.
“Unfair termination of contract on a pre-mediated case” is a ground that is meaningless. (Ref: State Vs Ncube 1990 (2) ZLR 303 (SC), and again State Vs Jack 1990 (2) ZLR 166 (SC).
But the last half of the ground of appeal is proper.
It invites the court to determine an appropriate penalty. This is meaningful and the court should   consider if dismissal was indeed an appropriate penalty.
Soza’s appeal before the Labour Court was noted on February 2, 2011.
About a year later, on February 28, 2012, Soza filed what he termed amplified grounds of appeal.
He proceeded to argue the appeal on the basis of these amplified grounds which were filed about a year after the original grounds were filed.
There was no application to amend the original grounds of appeal.
The only valid challenge related to the appropriateness of the penalty. The amplified grounds of appeal were thus improperly before the court.
But, even if the court were to agree to look into the merits, Soza’s appeal was a hopeless one.
Soza attempted to withdraw the statement that he initially gave on the basis that he gave it under duress.
He, however, failed to state in what ways force was made to bear upon him.
Soza merely alleges: “Firstly, I need to disown the entire report that I submitted to Risk Control on October 6, 2010 because I was forced and intimidated to accept . . . I wrote that report under duress.”
If indeed there had been any force or threats against him, he would not have failed to give the details of such force when he first had opportunity to correct the wrong statement.
Soza merely stated in a bold statement that he was forced and intimidated, while not giving details.
The statement on October 6, 2010 was corroborated in details of how the scheme to prejudice Zesa was carried out.
All the witnesses’ statements corroborated each other. It is unlikely that Soza’s statement was not    true.
The probabilities favour a finding that there was in fact no force that was made to bear upon Soza.
But, was the penalty appropriate under the circumstances?
Soza and his colleagues were united in a well thought out and carefully implemented scheme to defraud their employer.
The offence is one of dishonesty; any employer cannot be compelled to keep a dishonesty worker in its employ. It is an offence that erodes all trust an employer may have had in its employee.
Zesa is also engaged in a business that regularly receives cash from members of the public and Soza cannot be trusted in such a business that requires public trust.
The customers must also be protected from employees that con them and engage in fraudulent activities.
There is no doubt that the penalty under the circumstances was appropriate.
In the result, Labour Court president Ms Lilian Hove found that the appeal was de void of merit.
Ms Hove found that the penalty was appropriate under the circumstances and accordingly, she dismissed Soza’s appeal.