Aaron Chakanetsa v Zimbabwe Power Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.
LC/H/37/22
HARARE, 11 NOVEMBER, 2021
CASE NO. LC/H/126/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/37/22

HARARE, 11 NOVEMBER, 2021	              	     CASE NO. LC/H/126/20

AND 11 FEBRUARY, 2022

In the matter between:-

AARON CHAKANETSA							Appellant

Versus

ZIMBABWE POWER COMPANY (PRIVATE) LIMITED		Respondent

Before The Honourable L. Hove, Judge:

For Appellant:	Mr P. Makuvaza (Makuvaza & Magogo Attorneys)

For Respondent:	Mr Phiri N. M. and Ms W. L. Charangiwa (Muvingi & Mugadza)

This is an appeal against the appeals committee’s decision to uphold the decision to find the appellant guilty of two charges in violation of section 4 (b) and 4 (f) of Statutory Instrument 15 of 2006, that is willful disobedience to a lawful order and gross incompetence or inefficiency in the performance of his work.

At the hearing of this matter, the parties agreed to amend the appellant’s prayer to include an alternative; that is,

“alternatively, if reinstatement is nolonger tenable, the appellant be paid damages in lieu of reinstatement.	Either of the parties can approach the court for quantification if the parties fail to agree on the quantum”.

The prayer was accordingly amended as prayed for.

Background facts

The appellant was employed by the Respondent as the Human Resources Manager for Kariba Power station. He was suspended from work on the 7th of February 2020 pending investigations of misconduct.

(1)	He was subsequently charged with one count of alleged misconduct in terms of section 4(b) of Statutory 15/2006 in that:

He changed the recruitment method for the engagement of contract Labour, (general hands) by using the Quota system without approval, instead of the recruitment method of advertising locally and people coming in for selection.

(2)	He faced four further counts of alleged misconduct in terms of section 4(f) of Statutory Instrument 15/2006 in that:

(i)	He signed one Munashe Chakanetsa’s contract with a wrong grade thereby prejudicing the Respondent in the sum of ZW958.08.

(ii)	He renewed contracts of employees who had a lower grade of B3.1 to a higher grade of B 4.1 without following the approval process. This prejudiced the respondent in the sum of ZW 1630.

(iii)	He signed one Abigail Chitanda’s contract without a grade.

(iv)	He signed one witness Musapakira’s contract with wrong start and wrong end dates.

The appellant was found guilty by the Disciplinary hearing committee. He appealed to the appeals committee unsuccessfully. He thereafter noted this appeal to the Labour court.

Grounds of appeal

The appellant’s grounds of appeal are spread over almost two pages and these are;

1.	The appeals committee erred in failing to invalidate the disciplinary hearing proceedings admittedly held outside the 14 days prescribed in the relevant code and in falsely contending that appellant had not suffered prejudice.

2.	In respect of charge one the appeals committee erred in upholding a verdict of guilty in circumstances where the constituent elements of the offence of willful disobedience to a lawful order were absent.

2.1.	A fortiori, the authority erred in ignoring, inter alia, the fact that not only had the instruction been inserted by Appellant and thus only him could testify as to its import but further that it had been complied with albeit in his absence.

3.	The appeals committee erred in upholding the verdict of guilty in charge two count one in circumstances where the Disciplinary authority had accepted that appellant’s conduct did not amount to gross inefficiency or incompetence and secondly where there was no prejudice suffered by the Respondent.

4.	The committee erred in upholding the verdict of guilty in charge 2 count 3 and 4 even against the complainant’s own admission in hearing that the offences envisaged minor misdemeanors which the committee inaptly referred to as “grave charges” and further that no prejudice was suffered as a consequence.

5.	In respect of count 2 charge 4 in particular, the appeals committee erred in failing to set aside the Disciplinary authority’s guilty verdict even against the latter’s own finding that the appellant was guilty of mere inefficiency and not a gross version of the same as envisaged by the charge.

6.	Alternatively, and as regards the penalty, the appeals committee erred in failing to find that the disciplinary authority’s exercise of discretion was in every respect grossly unreasonable, capricious, mala fide and outrageous in its defiance of logic that no reasonable person could have acted similarly in settling for a dismissal penalty in the circumstances of the case and in having no regard to the mitigatory submissions presented by appellant, to wit,

(i)	Appellant’s personal record and employment record called for a lenient sentence,

(ii)	The investigating and audit recommended only a reprimand as a penalty.

(iii)	In all cases, no prejudice was suffered by the organization.

(iv)	The offences did not go to the root of the employment contract and no submissions or evidence was led or tendered to the contrary and in aggravation.

(v)	All the documents in which errors were committed were signed by the General Manager with appellant merely as a witness.

(vi)	The appellant’s subordinate responsible for generating all the erroneous documents was charged and only given a warning.

The court will hereunder consider those grounds of appeal.

Ground of appeal No.1

The position of law is very clear that failing to conduct disciplinary proceedings within the time limits prescribed in terms of the governing code of conduct does not invalidate the disciplinary proceedings. All it does is give the offended party the right to enforce his rights. The appellant could have enforced his right to be heard within the prescribed time instead of waiting until the time lapsed, then complain after the effect.

In Mombeshora v Institute of Administration and Commerce SC 72/17 GUVAVA JA (as she then was) stated that;

“It is clear that where disciplinary proceedings are conducted out of time, the delay does not nullify such proceedings nor does it stop the proceedings…….”

This position is trite. See also the cases of Nyoni v Secretary for Public Service, Labour and Social Welfare & Anor 1997 (2) ZLR 516, Posts and Telecommunications cooperation v Zvenyika Chizema SC 108/04.

The appellant argues that conducting proceedings outside the prescribed period is illegal and nothing can stem from an illegality. Reliance for this proposition was placed on the case of Macfoy v United Africa Company Ltd [1961] 3 ALL  ER 1169. It is however not illegal to conduct disciplinary proceedings outside the prescribed time. The case of Mombeshora (supra) makes this point very clear and thus the case of Macfoy (supra) is distinguishable and inapplicable in the circumstances of this case.

The appeals committee would actually have erred had it invalidated the disciplinary proceedings because they had been conducted outside the 14 day period.

The appellant is not left without remedy for any prejudice that he may have suffered. He could have enforced his rights. There is no merit in this ground of appeal.

Ground of appeal No. 2

Whether or not willful disobedience of a lawful order was proved?

The appellant argued that the essential elements of the charge was not proved. As such he had not willfully disobeyed the order. It was infact his subordinates who disobeyed in his absence. It was further argued that the case of Matereke v CT Bowring & Associates (Private) Limited 1987 (i) ZLR 206 (SC) held that “willful obedience connotes a deliberate and serious refusal to obey. Knowledge and deliberateness must be there. Disobedience must be intentional.

I do not think that it can be argued that the appellant had no knowledge of the instruction to recruit locally when he recruited using the quota system. The intention to disobey was demonstrated by the fact that him and his subordinates used the unapproved system. The instruction was recommended by the appellant and it was approved but his department did not obey the instruction to recruit locally. As the head of department, he was responsible.

The evidence on record shows that the appellant willfully disobeyed or disregarded the authorized system of recruiting. The allegations were proved, the appellant had knowledge of the authorized system and wrongfully omitted to act as had been authorized. The order was a lawful one and the appellant disregard it.

The fact that the appellant was overally responsible for his department and his subordinates under him chose not to use a recruitment policy which he, as the head of department had been ordered to employ, makes him responsible as the man in charge. He ought to have ensured that the authorized mode of recruitment was employed. It was his responsibility to enforce the lawful order even if he was going to do so through his subordinates.

Ground of appeal No. 3

Did the appeals committee uphold a verdict of guilty in charge two count one when the Disciplinary Authority accepted that appellant’s conduct did not amount to gross inefficiency or incompetance and no prejudice was suffered

The appeals committee merely confirmed the decision of the disciplinary committee.

The facts also reveal that the offence was not trivial. The appellant disregarded the authorized recruitment process, recruited 10 persons including his nephew unprocedurally. But only his nephew’s contract was given a higher grade than the other nine though their duties and responsibilities were the same. The appellant submitted that it was a trivial issue which was later corrected and the extra salary reimbursed. This however does not subtract from the fact that his conduct was grossly inefficient. A Human Resources manager has the responsibility to ensure that such important aspects of a contract of employment like salary and grade are correctly captured otherwise he would expose his organization to prejudice or even law suits.

The appeals authority did not misdirect itself. The employer had sufficiently discharged the onus upon it. The appellant did not perform his job well. The job had to be revisited. In any event, this court sitting as an appellate court cannot disturb findings of facts unless they can be demonstrated to be grossly unreasonable, capricious and mala fide.

In Tirivangana v University of Zimbabwe SC 21/13 the court held that;

“The court a quo could only have upset the findings of fact…….if the exercise of discretion was irrational on the evidence placed before him. As was stated by Korsah JA in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 AT 670”.

If the authority a quo made these factual findings that the offence committed was gross inefficiency, this court cannot interfere. Further the evidence placed before the authority a quo does not make the decision appealed against irrational. See also Attorney General v Howman 1988 (2) ZLR 402 and Nyahondo v Hokonya and others 1997 (2) ZLR 475 (SC) where the court stated that an appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are in defiance of logic.

The ground of appeal is thus without merit as it is seeking that the court makes a factual finding in circumstances were its not warranted.

Ground of Appeal No. 4 and 5

Whether the authority erred in upholding the verdict of guilty in charge 2 count 3 and 4? Where the acts of misconduct minor misdeneanors?

The appeals committee merely upheld the decision of the disciplinary committee in upholding a verdict of guilty in relation to charge 2 counts 3 and 4. The facts revealed that the offence, that is, charge 2 count 3, was not minor but a serious case of inefficiency. The evidence showed that Abigail Chitanha’s contract dated 18 December 2019 was signed without the grade.

It is not for this court to interfere with factual findings on the basis that were it in the shoes of the appeals committee it would have come up with a different decision. The court’s brief is to determine on the basis of the evidence on record whether or not the case against the appellant was proved. It is not for this court to alter factual findings on appeal unless it has been demonstrated that there has been a gross irregularity. The record shows that the act complained of is actually admitted and if the employer forms the view that this was a serious infraction, this Court cannot interfere. See the case of Nyahondo v Hokonya & others 1997 (2) ZLR 475 (SC).

The court is however of the considered view that there is limited merit in ground No.4 in so far as it relates to the submission that charge 2 count (4) cannot be said to be a “grave offence”. The facts which gave rise to the commission of that offence is that the appellant, when signing a contract in December 2019 which was to run from 01 January 2020 to 31 March 2020, put the year as 2019. This error is indeed not gross or grave. The appeals committee ought to have found that from the evidence on record, the error was not gross. I am satisfied that having regard to the evidence on record, this particular finding was itself grossly unreasonable. It was an error yes but the circumstances when one comes to the end of the year and in January they sometimes write the previous year is not grave inefficiency. There is therefore merit in ground of appeal number 5 and to a limited extent, ground number 4 succeeds in so far as it relates to charge 2 count 4.

The finding relates to facts but the court is satisfied that having regard to the evidence placed before the trial court, the finding complained of is grossly unreasonable.

In the result ground of appeal No. 4 has merit only in so far as it relates to charge 2 count 4 and ground of appeal No.5 being essentially the same with the last part of ground of appeal No. 4, has merit. The trial court failed to take into account a relevant consideration, that is, the circumstances during the period of signing the contract.

Ground No.6

Penalty

As admitted by the appellant in his heads of argument,  the issue of sentence is an issue of discretion. In Barros and Anor v Chimpondah 1999 (1) ZLR 58 (S), the Court stated at 62G-63A;

“It is not enough that the appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some errors has been made in exercising the discretion”.

The law vests the discretion whether or not to dismiss the offending employee on the employer alone and no-one else.  See National Employment Council for Catering Industry v Richard Kundeya & others SC 35/16. A court of law will generally not interfere.

In Innscor Africa (Pvt) Ltd v Letron Chimoto SC 64/12 the Deputy Chief Justice (as he then was) observed that;

“A principle has now been firmly established to the effect that an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court”.

Several other judgments have made this same point.

The fact that the appellant has been partially successful, does not remove the employer’s discretion. The employer can properly dismiss the appellant who was found guilty of charge 1 and charge 2 count 1, 2, and 3.

In view of all the acts of misconduct that the appellant was found guilty of, it cannot be said that there was a misdirection on the part on the appeal authority neither did it err in relation to those counts. Given those circumstances, this court cannot interfere with the exercise of discretion.

In the result, the appeal be and is hereby dismissed in relation to grounds of appeal No. 1, 2,3, first part of ground 4 and 6. The appeal is upheld in relation to grounds of appeal No. 5 and part of ground of appeal No. 4.

Each party will bear its own costs.