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Court Reporter
A Harare man who stole a dozen bottles of soft drinks from his employer and was subsequently sacked after a disciplinary hearing on Tuesday saw his hopes of being reinstated vanish into thin air after the Supreme Court quashed the Labour Court decision reversing the dismissal.
Tadius Kuvarega had worked for Delta Beverages (Pvt) Ltd at its Graniteside branch in the quality control department for 20 years as a plant microbiologist when he stole 12 family-size cokes during a party.

Although he was acquitted on criminal charges Delta still applied its own disciplinary code and he was fired.

Kuvarega appealed to the Labour Court, which upheld the finding of theft but set aside the penalty.

Dissatisfied with the Labour Court decision, Delta Beverages approached the Supreme Court on appeal arguing that the lower court interfered with the exercise of a discretion without showing any misdirection on the part of the employer.

Yesterday a three-judge panel led by Justice Elizabeth Gwaunza allowed the appeal by Delta Beverages sealing Kuvarega’s fate.

“It is clear that the appeal is merited and therefore it is allowed,” said Justice Gwaunza with Justices Bharat Patel and Ben Hlatshwayo concurring.

Advocate Thabani Mpofu who represented Delta Beverages argued that the company used its legitimate powers when it imposed a penalty of dismissal on Kuvarega. The penalty imposed on Kuvarega was one permitted in terms of the company’s code of conduct.

Adv Mpofu cited several cases to support his argument that theft was a serious offence.

But Kuvarega through his lawyer urged the court to reject the appeal saying it was without merit.

He argued that the case was one where a lesser penalty was appropriate in the circumstances.

The penalty of dismissal, he argued, was irrational, arbitrary and unwarranted.

He said even if the employer had the discretion to consider an appropriate penalty as it deemed necessary, the employer should not seem to be unreasonable by a clear disregard of the mitigatory factors where there were no compelling aggravating factors justifying the penalty.

On May 22, 2010 Delta held a party called O and G day, and Kuvarega served beer and drinks.

He then stole 12 soft drinks which he hid on the premises before he returned in the middle of the night to collect his loot.

He was arrested by the security guards after he tried to leave the premises through an undesignated point.