Africa Online (Pvt) Ltd v Jonathan Chasakwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/618/16
HELD AT HARARE 27 JULY 2016
CASE NO
JUDGMENT NO LC/H/618/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/618/16

HELD AT HARARE 27 JULY 2016				CASE NO LC/H/350/13

& 7 OCTOBER 2016

In the matter between:

AFRICA ONLINE (PVT) LTD			Appellant

And

JONATHAN CHASAKWA			Respondent

Before The Honourable Muzofa, J

For Appellant			Advocate T Mpofu

For Respondent		Ms E Drury (Legal Practitioner)

MUZOFA J:

On 17 May 2016 I granted an application for consolidation of all matters that arose in connection with respondent’s employment and subsequent dismissal.  To that end this is a consolidated matter in respect of LC/H/350/13, LC/H/380, LC/H/384/14 and LC/H/259/15.

Parties agreed on the issues for determination by this court which were set out as follows:

Whether or not

Arbitrator Dangarembizi erred in finding the respondent not guilty of acts inconsistent with the terms and conditions of his contract of employment;

Arbitrator Dangarembizi erred in finding the respondent guilty of wilful disobedience of a lawful order;

Arbitrator Dangarembizi erred in interfering with the penalty of dismissal and in ordering the respondent’s reinstatement;

Arbitrator Dangarembizi erred in awarding the employee back-pay and damages in lieu of reinstatement;

Arbitrator Mudzengi erred in appointing the respondent to the position of Regional Manager Southern Africa;

The award of arbitrator Mudzengi is capable of enforcement.

I will address the issues in the order set out by the parties.

The respondent was employed by the appellant as a Regional Finance Manager.  Following allegations of misconduct, the respondent was charged for contravening

“section 4 (a), alternatively 4 (b) and further alternatively 4 (d) of Statutory Instrument 15 of 2006 (the National Code).

It was alleged that the respondent without approval or authorisation from the acting regional manager authorised salary advances/loans to himself on two occasions and for one Charles Tutani.

It was also alleged that he committed theft or fraud in that he used company resources to pay for repairs done at his home.

Respondent was found liable in respect of all the counts and was dismissed from employment.  However in terms of the charges preferred it was not specified which charge he was found liable since the charges were preferred in the alternative.

The respondent was dissatisfied by the said findings and he referred the matter to a labour officer.  When conciliation failed the matter was referred to arbitration.

The arbitrator after considering the matter found the respondent not liable on the main charge.  Section 4 (a) of the National Code of conduct inconsistent with one’s terms of contract and the alternative section 4 (d) (theft or fraud) of the National Code.

The arbitrator found the respondent liable for contravening section 4 (b) of the National Code (wilful disobedience to a lawful order).

The arbitrator found that the misconduct was not deliberate to go to the root of the contract of employment.  He found that the appellant contributed to the confusion in the reporting system.  He therefore altered the penalty of dismissal to a final written warning.

Both parties appealed against the arbitral award.

I will address whether the arbitrator erred in finding the respondent guilty of wilful disobedience to a lawful order.  In Matereke v  C T Bowring & Asscociates (Pvt) Ltd 1987 (1) GUBBAY JA  discussed at length the requirements of a charge of wilful disobedience to a lawful order.  There must be a deliberate and serious refusal to obey, knowledge and deliberateness must be present.  It must be disobedience likely to undermine the relationship between the employer and employee going to the very root of the contract of employment.  The court rejected the notion that there must be an intention by the employee to repudiate the contract.  The court also accepted that the test is objective and the intention of the employee immaterial.

The second requirement is that there should be a lawful order from a person in authority.

The third requirement being that the employee should owe a duty to obey the order.

In casu respondent submitted that there was no lawful order.  The originator of the order one Nhena Nyagura was unlawfully appointed to the post of Acting Regional Manager.  He was also not an employee of appellant.  Instead respondent should have been appointed as acting Regional Manager in terms of appellant’s delegation of authority policy.

For appellant it was argued that Nhena Nyagura was lawfully appointed, respondent had a duty to obey his instructions.  Further the appellant had a discretion as to whom to promote, promotion is not a right that can be claimed by an employee.  The delegation of authority was not an appointment it was delegation of responsibilities.

To put this case into perspective I should set out the background to this case.  The appellant company and IWay Africa are both subsidiary companies of Telkom South Africa.

At the time of the dispute the two subsidiary companies were in the process of merging

It was not in dispute that the Chief Executive Officer of IWay Africa was in charge of Africa Online as at February 2011.

In order to determine whether it was disobedience to a wilful instruction, I should establish whether there was a lawful order from a person in authority over respondent.

Appellant had in place a delegation of authority policy (D.O.A) in terms of which an original bearer of authority could delegate authority to his or her immediate subordinate during his or her temporary absence or for an indefinite period.

In line with that policy the appellant’s Regional Manager wrote to the Acting Chief Executive Officer of appellant on 24 August 2009 delegating authority to the respondent in the event of his absence.  There was no evidence that by August 2009 the merger of the two companies was underway.

What is clear though is that the Acting Chief Executive Officer to who the D.O.A. was addressed is not the one who was at IWay Africa.

Although it is unclear at what stage the merger of the two companies was, what was acceptable was that the Chief Executive Officer of IWay Africa was in charge of appellant company.  His authority was not challenged by the respondent.

The organogram of the new company was not clear also.

On 31 January 2011 the Chief Executive Officer of IWay Africa one Harry Aucamp appointed Jethro Masanga who was by then the appellant’s Regional Manager Southern Africa to the post of Acting Head of Business, Africa Online Ghana.

By the same letter one Nhena Nyagura was appointed Acting Regional Manager Southern Africa.

Both appointments were effective 1 February 2011.

Respondent was not amused by this appointment.  He believed he was supposed to have been appointed the Acting Regional Manager in terms of the D.O.A.  He subsequently referred the issue to a labour officer.  The outcome of that arbitral award is the basis of one of the issues for determination.  While the supposed unfair labour practice was pending determination, Nhena Nyagura remained the Acting Regional Finance Manager.

As the respondent continued in his employment, albeit disgruntled, it is clear that he accepted that Nhena Nyagura was the Acting Regional Manager.  The facts are clear and undisputed.  I do not accept respondent’s submission that Nhena Nyagura was not an employee of appellant.

It is not in dispute that IWay Africa and Africa Online were in the process of merging.  The Chief Executive Officer of IWay Africa appointed Jethro Masanga to a post in Ghana.  If this appointment is acceptable to respondent, which appointment created a vacancy forming the basis of his argument, then Nhena Nyagura’s appointment should be acceptable.  Harry Aucamp was the person in charge and could therefore make lawful appointments.

As correctly found by the arbitrator Nhena Nyagura was the Acting Regional Manager.  Respondent even acknowledged that for instance in an email dated 27 October 2011 respondent wrote to Harry Aucamp the IWay Africa Chief Executive Officer “I am not disputing the fact that you appointed an Acting Regional Manager…”

The tone of that letter clearly show that Nhena Nyagura was the Acting Regional Manager for appellant.  For respondent to allege that Nhena Nyagura was not an employee of appellant would be inconsistent with what respondent conceded to as at 27 October 2011.  There was evidence that respondent would communicate with Nhena Nyagura as his immediate supervisor.

The second point of contention by the respondent is that Nhena Nyagura was unlawfully appointed to that post, therefore his appointment was null and void.

The respondent relied on the delegation of authority and the notification made by Jethro Masango.

I agree with the interpretation given to these documents by the appellant.  These documents were just a basis to delegate authority.  They were not substantive documents for appointments.

The succession plan was not placed before the arbitrator neither was it placed before this court.

I find nowhere in the delegation of authority a provision that, once authority is delegated to someone the person invariably was due for appointment to the substantive post.

The appellant had the ultimate discretion to appoint anyone to the post left by Jethro Masango.  The principle enunciated in Muwenga v PTC 1997 (2) ZLR 483 (SC) that the promotion of an employee is a privilege left to the discretion of the employer is also applicable in casu.  It is not a right an employee is entitled to claim, unless his contract of employment so provides.  The courts should not be interfering with administration at the workplace.

Clearly Nhena Nyagura was a person in authority over respondent.

The second issue for determination is whether there was a lawful order.  Respondent argued that there was no policy on loans and the practice was that respondent as the Finance Manager would approve such.  Nhena Nyagura had no power to create a policy.

I do not agree with respondent and even the arbitrator’s finding that there was confusion regarding policy, procedure and established hierarchy in the organisation, and that there was confusion surrounding the authority of the Acting Regional Manager.

I say this for the following reasons.  Firstly there was no time appellant did not have an Acting Regional Manager for on the date Jethro Masango was appointed to the Southern Africa office, Nhena Nyagura was appointed to the Southern Africa office, that is from 1 February 2011.  It may be that there was no loan policy.  However Nhena Nyagura on 19 April 2012 requested respondent to refer all authorisations of new expenditure and payments to him.

There was no ambiguity in that instruction. There was no policy created.  As the supervisor he wanted to have all payments referred to him first before processing.

Nothing is untoward about that.

There was a lawful order from a person who was in authority over respondent.

In clear defiance of that order in June he authorised loans for Charles Tutani and himself.

As in the Matereke case (supra) in casu there was a deliberate disobedience grounded on the misconception that Nhena Nyagura was unlawfully appointed.  In so conducting himself the respondent intended to undermine the authority of Nhena Nyagura and eventually the appointing authority Harry Aucamp.  Every employee has a duty of subordination, he failed in this respect.

I therefore confirm the arbitrator’s finding that there was wilful disobedience to a lawful instruction.

The arbitrator having found the respondent liable for such a charge altered the penalty from dismissal to a final written warning.

The arbitrator observed that the appellant contributed to the confusion.  It is my view that there was no confusion in the hierarchy of the appellant.  Nhena Nyagura was the acting regional manager.

The arbitrator also reasoned that the misconduct did not go to the root of the employment contract.  I can do no better than refer to the dictum in one case among the numerous dealing with the imposition of a penalty, the case of Innscor Africa (Pvt) Ltd v Chimoto SC 6/12 where the court authoritatively said

“A principle has now been firmly established to the effect 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.  In this case the labour court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator.”

In casu the respondent was charged in terms of section 4 of the National Code.  The first part of that section provides

“An employee commits a serious misconduct if he or she commits any of the following offences.”

Wilful disobedience to a lawful order is classified as a serious misconduct, contrary to that the arbitrator watered down the respondent’s misconduct.

Once a misconduct is classified as serious it naturally goes to the root of the employment conduct.  In casu it is no small matter that a senior official like respondent, a regional finance manager defies the authority of a lawfully appointed person.  This was a deliberate action taken in defiance of what he subjectively believed to be a unfair appointment.  By inference the respondent defied the authority of Harry Aucamp.  Respondent deliberately disobeyed a lawful order.  The existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful Matereke case (supra).

Once the employer took a view that the misconduct went to the root of the employment contract, the employer is entitled to dismiss.  The arbitrator fell into error the penalty of dismissal was appropriate for a charge of wilful disobedience to a lawful order.

My findings on the second and third issues disposes of the first issue.  I say so because both charges preferred in the alternative are serious misconduct and therefore attract a dismissal.  I therefore will not address the first issue.

The fourth issue for determination falls away in that there are no damages due to the respondent since his dismissal is confirmed.

The fifth issue is whether arbitrator Mudzengi erred in appointing the respondent to the position 	of regional manager Southern Africa.

I have partially addressed this issue in the determination of the second issue.  I however would address salient features raised by the appellant.

It is not disputed that arbitrator Mudzengi’s award was made at a time when respondent had been dismissed from employment.  It was argued that the arbitrator created a contract for the parties.  At that point in time, respondent was a dismissed employee.  It was incompetent for the arbitrator to order that he takes a position in a company in which he was no longer employed.

The respondent relied on the delegation of authority to claim the post of acting regional manager.  I have dismissed this issue, in that this delegation was not an appointment.  In any event another person was appointed in the place of Jethro Masango.

Before arbitrator Mudzengi, respondent also relied on the acting allowance Guidance policy which provided in clause 4.

“The maximum period for an employer to be on acting assignment is six months, after which the position and performance of the employee will be evaluated and either of the following actions taken

Confirmation of the employee to the position

Appointing another employee in the acting position

Restructuring of the position accordingly; and

Extension of the acting assignment for the period of no more than three months."

According to the documents filed of record Nhena Nyagura was appointed effective

1 February 2011, the effective date Jethro Masango assumed duty in Ghana.  Technically therefore there was no opportunity for respondent to be the acting regional manager.

That situation would mean at one point appellant had two acting regional managers.

Even assuming that respondent acted in that position the arbitrator’s findings would be incorrect.  Before confirmation of an employee who was in an acting position, there is a condition precedent, that is assessment of the employee.

The respondent was not assessed at all it is a requirement that the position and performance of the employee be evaluated.

There was no evidence to show that the respondent was assessed. It can be safely assumed that the evaluation was meant to consider whether the incumbent can be appointed to the position that he had been acting in.  This is a procedure to assist an employer to reach a value judgment.

In my view the arbitrator or the court for that matter cannot disregard the provisions of the policy simply because respondent had acted in the position of an acting regional manager for over six months.  Moreso it is not for the courts to promote  an employee.

The least that the arbitrator could do was to order appellant to comply with the acting allowance guidance policy clause 4 thereof.

A closer reading of that section of the policy does not entitle one to be appointed after six months of acting.  After evaluation the person can be confirmed or may not be confirmed.

I am unable to agree with the arbitrator’s findings based on the policy.

From the foregoing it follows that last issue for determination falls away.

There is no need to make a determination on it since the order by arbitrator Mudzengi was improperly made.

Accordingly the court’s findings on the issues is as follows:

That arbitrator Dangarembizi did not err in finding respondent not guilty of acts inconsistent with the terms and conditions of his contract of employment.

That arbitrator Dangarembizi did not err in finding respondent guilty of wilful disobedience to a lawful order.

That arbitrator Dangarembizi erred in interfering with the penalty of dismissal and ordering the respondent’s reinstatement.

That arbitrator Dangarembizi erred in awarding back-pay and damages in lieu of reinstatement.

That arbitrator Mudzengi erred in appointing the respondent to the position of regional manager – Southern Africa.

That the award of arbitrator Mudzengi is in capable of enforcement.

Accordingly the following order is made

The appeal LC/H/350/13 be and is hereby upheld.

The appeal LC/H/380/14 be and is hereby upheld.

The appeal LC/H/384/14 be and is hereby dismissed.

The appeal LC/H/259/15 be and is hereby upheld.

The respondent’s dismissal be and is hereby confirmed.

No order as to costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Honey & Blenckenberg, respondent’s legal practitioners