Bright Gunzo v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 20 JUNE 2023 AND 17 JULY 2023
JUDGMENT NO. LC/H/216/23
CASE NO. LC/H/1122/22
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 20
JUNE 2023 AND 17 JULY 2023
IN THE MATTER BETWEEN:-

BRIGHT GUNZO
AND
ZIMBABWE REVENUE AUTHORITY

Before Honourable Mr. Justice L.M. Murasi

For Appellant
Mr. A.K. Maguchu
For Respondent
Mr. H. Muromba

MURASI J:

This is an appeal against the decision of the Respondent’s Appeals Committee which upheld the determination of the Disciplinary Committee which found the Appellant guilty of misconduct culminating in his dismissal from employment.

The brief facts are that Appellant was employed by the Respondent as head responsible for Human Capital Administration. He was charged with misconduct in terms of Respondent’s Code of Conduct. He was brought before the Disciplinary Committee which found him guilty and recommended his dismissal. Appellant was dissatisfied and approached the Appeals Committee for relief. The Appeals Committee upheld two of the charges and found Appellant not guilty on the other two. Appellant is still dissatisfied with the outcome and has appealed to this Court. Appellant’s grounds of appeal are as follows:

1. The Appeals Committee seriously misdirected itself on the facts in upholding the finding that Appellant had refused to obey an instruction from the Human Resources Director, which was that a leave reconciliation report be furnished to the Director.
2. The Appeals Committee seriously misdirected itself in failing to find that Appellant’s recommendation for an employment candidate who had scored below the threshold did not violate the policy since the policy allows such provided that the Human Resources Director sought and obtained a variation in the application of the policy.
3. The Appeals Committee seriously misdirected itself in upholding the penalty meted by the Disciplinary Committee particularly in view of the lack of seriousness of the offences as is gleaned from Respondent’s lack of consistency in respect of contemporaneous conduct by other employees.

Preliminary Issues


1


There are two preliminary issues which the Court has to deal with before dealing with the appeal on the merits. The first is the ‘request’ made by Mr. Maguchu during oral submissions that he be allowed to Mr. Maguchu did not make any application for the filing of such documents. He only made the ‘request’ file certain emails which he alleged were not filed with the other documents. I refer to this as a ‘request’ as Mr. at the end of his submissions that is when he was given the opportunity to respond to Respondent’s Counsel’s submissions. He did not inform the Court what those emails were in aid of to enable the Court to make an assessment as to whether indeed such information was vital in the determination of the appeal. Further, this ‘request’ clearly fell foul of the provisions of Rule 23 of the Labour Court Rules, 2017 which provide:

“Where a party to any matter pending before the Court wishes to make an application to the Court in respect of any matter for which an application may be made in terms of these rules, the applicant shall give not less than ten days’ notice of the application to the Registrar and the other party specifying the nature of the application and the grounds upon which it is made unless a judge or the Court otherwise directs.”

Appellant’s Counsel did not see it proper to file such an application after having filed all the documents pertaining to the matter. Further, Appellant’s Counsel did not make such application even after being served with the Notice of Set Down. The Court thus declined to grant the ‘request’ in the circumstances.

The second issue pertains to the third ground of appeal. The issue of the penalty imposed on Appellant was not raised in the appeal before the Appeals Committee. Respondent raised this issue in the Notice of response. Appellant commented on the matter in heads of argument as follows:

“As for the penalty, Respondent responded to the internal appeal by bringing arguments on why the penalty was justified. Appellant made submissions on why it was not. The Appeals Committee then determined that the penalty was appropriate. It upheld it. The Appeals Committee would not need to uphold something that was not an issue before it.”

Appellant is clearly not being candid on the matter. The Appeals Committee did not deliberate on the issue of the penalty imposed on the Appellant. It merely stated as follows:

“So after having seriously considered both your oral and written appeal submissions the Appeals Committee has decided to uphold the verdict of guilty and penalty of dismissal from employment with effect from the date of your suspension.”

Clearly that above sentence does not show that the Appeals Committee dealt with the issue of the penalty imposed on Appellant as an issue brought before it for determination. As stated by Gwaunza AJA (as she then was) in *Tsvangirai & Others v Registrar General* 2002(2) ZLR 653:

“… to now call upon this Court, as the appellant does, to consider this appeal on the basis of information and arguments not placed before, and therefore not considered by the court a quo is both unprocedural and improper. That ground must therefore, fail.”

In the result, the third ground of appeal is accordingly struck off.

In oral submissions, *Mr. Maguchu* stated that he would abide by the documents filed of record. He submitted that in respect of the first ground of appeal, Appellant admitted that the instruction was given through an email and that in the hearing he had stated that he had not complied vis a vis the physical submissions but had done the SAP system. He further submitted that Appellant assumed that the Human Resources Director an SAP system. It was further argued that Appellant had immediately informed his subordinates about the instruction given by the human Resources Director and that this did not amount to a refusal to comply with that instruction.

As far as the second ground of appeal was concerned, it was argued that it was not the Appellant who had prepared the Memorandum and that it was Appellant’s duty to recommend which is what he had done. In the heads of argument, it was stated as follows:

“The Appellant does not deny that the candidate in question did not meet the minimum 75% score. Despite such, Appellant’s junior, L. Mafundi responsible managerial employee, recommended to the Appellant that this candidate be employed.

On receipt of this memorandum, Appellant’s role was to forward the papers to the Human Resources Director with his own considered recommendation. The human Resources Director’s role was to consider the papers and decide whether to hire or not.

Appellant says that he made the recommendation because in his view, the Human Capital Director could ask for the variation of the policy and appoint the candidate.”

In response, Mr. Muromba also stated that he was going to abide by the documents filed of record. He submitted that the record showed that Appellant admitted that he received the instruction in question but had not produced an evidence to show that he had complied with the instruction. Mr. Muromba further submitted that Appellant had indeed admitted that he had not complied with the instruction. It was further argued that Appellant had not shown that the instruction was incapable of being complied with or that he lacked the requisite capacity and therefore as such no legal or factual reason had been advanced.

As far as the second ground of appeal was concerned, it was stated that Appellant admitted that he was aware of the new recruitment policy and that 75% was the minimum requirement. It was also submitted that as head of the department, Appellant was responsible for ensuring that there was compliance with the policy and that Appellant admitted that he had recommended one Zanamwe when he was aware that the candidate had a score below 75%. Mr. Muromba also stated that Appellant had made the admission that it was improper not to comply with the provisions of the policy.

ANALYSIS

Precedent is awash with cases dealing with the jurisdiction of appellate courts when faced with appeals based on factual issues. KORSAH JA had this to say in Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 A-G:

“The general rule of law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

In Nyoni vs Secretary for Public Service, Labour and Social Welfare and Another 1997 (2) ZLR 516 and at 528 E-F, GILLESPIE J weighed thus:

“One is able therefore to state that the irrationality of decision, is that it has no basis in evidence, is an acceptable ground of review. It will be established not only where there is no evidence upon which the decision can be based, but also where the evidence, although present, was so inadequate that no finding could reasonably be based thereon. Or, put another way, that no person properly applying his mind to the issue could reach such a conclusion… The mere fact that the reviewing judge might have come to a different conclusion is no ground for interference.”

In the present matter, it must therefore appear that the Appeals Committee committed some error in exercising its discretion in that it might have mistaken the facts or omitted to take some relevant facts into consideration or that the decision was clearly irrational. The Appeals Committee made the following findings in respect of the first ground of appeal:

“In particular, the Appeal Committee noted that for the three requests which were made by the Respondent to you, there is no evidence of acknowledgement of receipt of the email by yourself not any plausible explanation for your failure to respond to requests made to you with deadlines by your superior. Notably, you had not responded to the email of 26 May 2022 which had a deadline of 31 may 2022 by the time you were suspended on 12 July 2022. There is no proof of efforts which you made to engage your superior over the requests he had made to you if at all you were facing any challenges.”

What does the evidence show? Respondent’s witness had this to say in evidence:

“I would sent emails and I would walk into his office and ask for the same information by word of mouth and emails.
I was never given responses. That’s why you see in one of my emails I said I have not seen these reports. And I gave an ultimatum.”

At pages 90 and 91 of the record, Appellant is cross-examined by Respondent’s representative in respect of the instructions he received from his superior. After being referred to two emails, the following is gleaned from the minutes:

“Question: Did you provide the reconciliation report following that email?
Answer: No.
Question: Let’s go to the 23 May email. Did you provide that leave balances report after this email?
Answer: No.”

Those answers were a clear admission by the Appellant that he had not complied with the instruction given by his superior. The Court notes that in his heads of argument, Appellant attempts to give an explanation which was not tendered during the hearing in that he assumed that the superior wanted an SAP done instead of the physical one. The Respondent’s representative clearly stated in evidence that he had in effect given a template to the Appellant. This is not denied by the Appellant. Can it therefore be concluded that the Appeals Committee misdirected itself in making the particular finding? I think not. The ground of appeal lack merit.

As far as the second ground of appeal is concerned, the Appeals Committee made the following findings:

“..the Appeals Committee noted that in your appeal you did not dispute that you indeed had recommended to the Director HC a candidate whose score was below the minimum threshold set by policy nor affirm that you had submitted a recommendation for policy variation in treating such a unique case to the Director HC given that policy variation can only be effected by the ZIMRA Board upon recommendations from the Board’s Human Resource Committee…”

The evidence of Respondent’s Human Resources Director was to the effect that Appellant’s recommendation was supposed to be consistent with policy and that no reasons had been given when such recommendation was made. The Memorandum bearing Appellant’s recommendation is found at page 187 of the record. It does not have any notes attached to it by way of explanation or reasons. The following comes from the minutes:

“Question: Were you proffered any reasons for the deviation?
Answer: No.”

Appellant’s apparent explanation that the issue was discussed with this witness was not put to the witness. In any event this would fly in the face of appellant’s explanation under cross-examination. In the minutes, Appellant was referred to the provisions of Clause 18.1 of the policy in question. The following emanates from the minutes:

“Question: Has there been any variation of this policy by the Human Resources Board Committee and has there been any such approval by the Board as far as you are aware?
Answer: No.

Question: So that calls for a full compliance of the procedures. Am I correct?
Answer: Yes.”

Appellant’s responses clearly show that he was aware of the policy position and the procedures that were to be undertaken in order to vary that position. It is my view that the Appeals Committee was correct in making the findings that it did in respect of the ground of appeal. That decision cannot be interfered with. It is rational. It is my further view that a reasonable tribunal would have come to same conclusion in the circumstances. The ground of appeal lacks merit and ought to be dismissed.


In the circumstances, the Court finds that the appeal lacks merit and is accordingly dismissed with costs.

Maguchu & Muchada- Appellant’s legal practitioners

Kantor & Immerman- Respondent’s legal practitioners.
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