Caroline Mapfumo v Rainbow Tourism Group Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/9/2020
HARARE, 15 MARCH 2018
CASE NO. LC/H/136/17
JUDGEMENT NO LC/H/9/2020
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO. LC/H/9/2020

HARARE, 15 MARCH 2018				   CASE NO. LC/H/136/17

AND 10 JANUARY 2020

CAROLINE MAPFUMO							Appellant

RAINBOW TOURISM GROUP LTD					Respondent

Before Honourables Musariri & Chivizhe, JJ

For Appellant:  		Prof L. Madhuku (Legal Practitioner)

For Respondent:		Mr B. Diza (Legal Practitioner)

CHIVIZHE, J:

This is an appeal in terms of section 92D of the Labour Act [Cap28:01]. The appeal is noted against the determination by the Respondent’s Appointed Designated Officer which determination was confirmed by the Human Resources Committee Board on the 13th of October 2017. The determination was to the effect that Appellant be dismissed from employment.

The facts of the matter which are largely common cause may be summarized as follows; the Appellant was employed by the Respondent as the Human Resources Director. The Respondent leveled charges that included two counts of breach of clause 1.2.45 of the relevant code of conduct, i.e. the Rainbow Tourism Group Code of Conduct i.e. false evidence deliberately giving untrue/misleading testimony; three counts of breach of clause 1.2.28 of the same code of conduct i.e. inconsistent conduct or omission. The Appellant was found guilty on one count of inconsistent conduct or omission gross.

The allegations behind the leveling of the particular charge were that the Appellant had been advised on the 9th of May 2017 to ensure she submitted her board pack by the 19th of May 2017. Whilst the rest of the other executive’s board packs were submitted on the 20th of May, Appellant’s board pack was only availed on the 23rd of June, 2017. The Respondent took a serious view of the breach. It therefore leveled a charge of inconsistent conduct or omission. The determination finding Appellant guilty was handed down on the 11th September 2017 by the Disciplinary Authority.

The Appellant appealed against both conviction and penalty to the appellate body i.e. the Respondent’s Human Resource Committee Board. In its judgment handed down on the 13th October 2017, the board dismissed her appeal and essentially confirmed the conviction/penalty imposed by the Appointed Designated Officer. Aggrieved by the determination the Appellant noted the present appeal against both conviction and penalty.

The grounds on which her appeal is premised are as follows;

The Respondent, through both its Appointed Designated Officer and Human Resources Committee Board, grossly misdirected itself in both law and fact in finding the Appellant guilty of the charge of inconsistent conduct or omission’ in circumstances where the Appellant’s alleged errors fell outside the contemplation of section 1.2.28 of the Respondent’s Code of Conduct, particularly in that:

The two errors that were established, namely late delivery of board packs and incorrect date on the delivered board packs were inadvertent and excusable.

There was insufficient evidence to establish the other two alleged errors relating to information on executive development and on debt restructuring.

The Respondent grossly misdirected itself and improperly exercised its discretion in imposing the very harsh penalty of dismissal as the misconduct was not one that, on any reasonable basis, merited that penalty. The penalty of dismissal, having regard to all the factors required to be considered in terms of 2.7.1 of the Respondent’s Code of Conduct, is grossly unreasonable.

The issues which fall for determination in my view are two;

Whether the Respondent, through its Appointment Designated Officer and Human Resources Board misdirected itself in both law and fact in finding Appellant guilty on the charge of inconsistent conduct or omission.

Whether the Respondent grossly misdirected itself and improperly exercised its discretion in imposing the penalty of dismissal in the circumstances of this case.

Point in limine

The Respondent through counsel took a point in limine at the commencement of proceedings. The point taken was that the issue taken by Appellant in her first ground of appeal that the facts did not support the charge leveled of inconsistent conduct or omission was only being raised for the first time in the Labour Court. It was not an issue that was raised before the hearing a quo. On that basis the Appellant was barred from raising the issue before this court. The Respondent referred to the decision in the matter of Simon Gazi vs NRZ SC 60/2015 where the principle was laid that an appeal court cannot entertain points taken for the first time on appeal except in exceptional circumstances. The Respondent’s further submission was that the first ground of appeal not being properly taken therefore stood to be dismissed by the court on that basis.

The Appellant, through counsel, submitted that whereas the Respondent had indeed leveled the correct charge of ‘inconsistent conduct or omission’ the Respondent had however erred in convicting her of the charge on the basis that the errors she had committed where otherwise trivial, inadvertent and excusable. The Appellants further submission was that her conduct was not so gross as to go to the root of her employment contract. For that reason her conduct fell outside the contemplation of section 1.2.28 of the Respondents code of conduct. She ought not to have been found guilty of the infraction of section 1.2.28 of the code.

The point in limine is meritorious. It is clear from a perusal of the record of proceedings and from a consideration of the Appellants submission that Appellant in her first ground of appeal is indeed raising a fresh issue before the Labour Court. The Appellant submitted that Respondent erred in finding her guilty for conduct that otherwise fell outside the contemplation of section 1.2.28 in that the conduct was inadvertent and excusable. The Appellant through her submissions is essentially alleging that the wrong charge was leveled by Respondent against her. This issue was not taken before the hearings a quo. It is trite position at law that an appeal court cannot entertain a fresh point taken for the first time an appeal except in exceptional circumstances. The court was aptly referred by Respondent to the matter of Simon Gazi vs NRZ 60|2015.

WHETHER THE RESPONDENT ERRED AND MISDIRECTED ITSELF ON THE LAW AND FACTS BY FINDING APPELLANT GUILTY ON THE CHARGE

Assuming the court is wrong in its findings on the point in limine and the first ground of appeal is properly taken the court proceeds to address the first ground of appeal.

Mr Madhuku, for the Appellant submitted that the Appellant’s conviction on the charge was improper and could not be allowed to stand. He submitted that certain factors militated against a finding of guilt on the particular charge. Firstly the Appellant conduct on its own could not constitute inconsistent conduct as contemplated by the code of conduct. This was because although her conduct could be viewed as inconsistent it was not so serious; it also did not go to the root of the contract of employment. The Appellant relied in support of her arguments on the Locus classicus in Tobacco Sales Floor ltd vs Chimwala 1987 (2) ZLR 210(S).

The second reason was that the Appellants board packs were availed on the 23rd of June, 2017. All the other board packs had been availed on the 22nd of June 2017 a day earlier. The Appellant submission is that in the circumstances of her case the delay was inadvertent and therefore excusable. The third reason was that the errors referred to by the Respondent related to a typographical error where she had typed, ”Wednesday 26th June” instead of “Monday 26th June.” That error, in the inclusion of Wednesday was in her view minor, inadvertent and excusable in the circumstances of her case. Fourthly the Respondent had also referred to the inclusion of certain documents which Appellant was not supposed to have included in the board pack. In regards that she had tendered a plausible defense that the information on executive development costs had been properly included whereas the information on debt restructuring had been included at the instance of the finance department. On that basis there was nothing inconsistent in her conduct of including a document sent by the finance department. On the basis of the above her submission was that her conviction on the charge was therefore improper and the court ought to therefore set it aside.

Mr Diza, for the Respondent counter submitted as follows; firstly that the court should take note that the Appellant admitted to the charge that the board packs were availed on the 23rd of June, 2017. The Appellant as the Human Resources Director was obliged to prepare board packs and avail them on time to the members. The board members rely on the board packs to gain an insight into the affairs of the Respondent. The packs also allow the board members to have an insight into the performance of business. The failure by Appellant to prepare the board packs on time was thus conduct clearly inconsistent with Appellant’s contract of employment.

The issue that is before the court is whether based on the facts and the evidence filed of record, the Appointed Designated Officer and in turn the Appeals Committee Board were correct in their findings that she was guilty of the charge. The record indicated that the Appointed Designated Officer found Appellant guilty on the basis that (i) the Board pack was delivered late (ii) Wrong information had been included. In particular he found that she had wrongly included information on executive development costs.

She had also admitted before him that the Chief Executive Officer had told her in the presence of the Finance Director that this was not to be included. The Appointed Designated Officer also found that Appellant’s conduct was indeed inconsistent with her contract of employment. The Appellant was employed as Human Resources Director. One of her key deliverables was preparing board packs and attending Human Resources Board Committee meetings. Although Appellant had argued before him that her conduct did not go to the root of her contract the Appointed Designated Officer found that her conduct was indeed inconsistent with her duties. The finding was also upheld by the Appeals Committee Board which came to the conclusion that the Appellant having conceded to filing the board pack late, the defense raised that the employer had targeted her against the other directors was irrelevant in the circumstances. The Board also relied on the fact that she had conceded during the hearing that she habitually submitted her board pack late and that she had also been warned through a letter from the Chief Executive Officer to desist from the practice of submitting board packs late.

It is apparent from the facts and evidence led before the hearings a quo that the Appellant was indeed correctly found guilty of the charge. The charge leveled against the Appellant was that of breach of clause 1.1.28 i.e. she was found guilty of inconsistent conduct or omission – gross which is inconsistent with the fulfillment of the express or implied conditions of employment contract. The Appellant was employed as Human Resources Director. One of her key deliverables was to prepare board packs and avail same to board members before a Board meeting. This was necessary and important as the board packs are the primary interface between management and board. It is also a given that Management requires Board approval before executing any action. The need for board packs to be prepared timeously and placed before board members thus cannot be overemphasized. The Appellant before the hearing a quo did not contest that the nature of her duties entailed timeous preparation of board packs. She also did not dispute that she was late in availing the board pack on this occasion. Against this background there can be no doubt that the Appellant did act inconsistent to the conditions of her contract. It is also important to underline that the arguments presented by the Appellant in this court in regards her conviction, which are arguments based on the Tobacco Sales case, are arguments clearly misconceived as those ordinarily go towards sentence not conviction. This is very clear because the Tobacco Sales floor ltd case relied on by the Appellant is authority for the proposition that where an employee charged with conduct inconsistent in order to escape that misconduct must show that her conduct though technically inconsistent with the fulfillment of the conditions of his or her contract, is trivial or inadvertent or otherwise not so serious as to warrant her dismissal.

WHETHER THE RESPONDENT GROSSLY MISDIRECTED ITSELF AND IMPROPERLY EXERCISED ITS DISCRETION IN IMPOSING DISMISSAL PENALTY.

The Appellant takes issue with the penalty imposed of a dismissal from employment. She submits that the penalty was harsh given the circumstances of the matter. She therefore is motivating for a lesser penalty given that the Respondent’s Code of Conduct through clause 2.7.1 underlines that not only the seriousness of the offence should determine the penalty other factors ought to be considered such as length of service, ….etc. The Appellant’s further view is that dismissal penalty was also not appropriate considering that the employer failed to convict her on the other four counts; the only count that she was convicted of i.e inconsistent conduct was not regarded by the Respondent as a serious offence and therefore did not warrant a dismissal penalty; her conduct although inconsistent would fall in the category of those described as ‘excusable’ in Tobacco Sales Floor Ltd vs Chimwala 1987 ZLR 210 and also followed in Celys Ltd vs Ndeleziwa 2015 (2) ZLR 62 (S); she had a clean disciplinary record up to the time of commission of the offence; she also had over the period from 2013 to 2015 an excellent service record having being assessed and scoring marks above 70%; she had a long service with the Respondent of five years; the offence she had committed did not involve a breach of trust; the practice at Respondent’s workplace was that board packs were generally late and this mitigated her misconduct; the employer had in any event suffered no material prejudice; the Respondent had selectively prosecuted her for the misconduct in the face of evidence of other employees having conducted them in the same way; finally that she happened to be the only woman occupying a top position in the organization i.e one of the top four the Respondent ought to have applied gender sensitivity in the matter.

The Respondent’s position on the issue of penalty is that the Appellant was properly dismissed from employment. The offence she was convicted of is a serious offence that goes to the root of the employment relationship giving the employer a prima facie right to dismiss. The Respondent relied on Standard Chartered Bank of Zimbabwe Ltd vs Chapuka SC 125/04. The Respondent’s second submission is that the Appellant having accepted that her conduct was indeed inconsistent with her contract failed to discharge the onus on her to prove that her conduct was however so trivial, so inadvertent or otherwise excusable as outlined in the Tobacco Sales Floor case referred to. The Respondent’s third submission is that the Code itself provides for a penalty of dismissal on first breach of the Code. The Respondent’s submission is that the Code should at all times be adhered to by the parties. The Respondent referred to Delta Corporation vs Paul Gwashu SC 96/00.

On the issue of selective prosecution of the Appellant the Respondent submitted that whilst it could not be conceded that the other board packs were late the facts however pointed to Appellant being a habitual offender. She had actually been cautioned by the Chief Executive Officer in a letter dated 12th September 2016 on the need to make sure her board packs were submitted on time. It was Respondent’s further submission that even if the other directors were also late, a point not conceded to there was nothing improper in Respondent singling out Appellant for punishment. The approach was not new and found support in the matter of Lancashire Steel (Pvt) Ltd vs Elijah Zvidzai Mandevana & Ors SC 29/95. In regards the rest of Appellant’s submissions on her length of service, clean disciplinary record in service, the fact that she was the only female in a male dominated environment the Respondent’s submission is that the offence she was charged with is a very serious offence, the facts also disclosed she was a habitual offender. This fact alone would overshadow the mitigating factors the Appellant was raising such that the Disciplinary Authority had correctly imposed a dismissal penalty.

The Appellant in reply emphasized the fact that she had never been previously charged with the same act of misconduct. The employer had therefore acted unreasonably in imposing a dismissal penalty where she had not previously been convicted of the same misconduct. Secondly the employer had acted against the tenets of the Code of Conduct. On this basis it was Appellant’s submission that the employer had in this case exercised its discretion unreasonably by imposing a dismissal penalty in the circumstances of the case.

It is a trite position at law that a court cannot lightly interfere with the employer’s discretion to dismiss an employee found guilty of misconduct that goes to the root of the employment contract unless there has been misdirection or unreasonableness on the part of the employer in arriving at dismissal penalty. The question therefore is whether the Respondent exercised its discretion unreasonably in imposing a dismissal penalty in the circumstances of this case.

It is very clear from a reading of the record of proceedings that the Appellant did concede that she had acted inconsistently with her conditions of employment. She did breach one of the key deliveries of her contract by failing to avail the board pack timeously. The breach was a material breach. The relevant Code of Conduct provides for a penalty of dismissal on first breach where an employee is found guilty of inconsistent conduct or omission.

The Appellant in motivating for a lesser penalty however submits that the Disciplinary Authority and the Appeals Authority ought to have found that her conduct was trivial, excusable in other words did not go to the root of the contract. She relied on the Tobacco Sales Floor case for this proposition. In so submitting Appellant also drew parallels with the matter in Ceysly vs Nobert Ndeleziwe SC 49/15. The factual circumstances in that case were that Ndeleziwe was a Stores Foreman. He ordered white sheet board from a supplier. He was supplied with a wrong size of sheet board. He then used a pen to alter the copy of Goods Received Voucher (GVR) to reflect the size of board he had received. He did not let the machine minder know that the board that he was using was of a different size. The machine minder had discovered the error on his own. It was this conduct on the part of Ndeleziwe that drew the ire of his superiors. He was charged with an act or omission inconsistent with the fulfilment of express or implied conditions of employment.

The Supreme Court found that the misconduct Ndeleziwe was found guilty of did not merit a harsh penalty in other words dismissal was an unreasonable penalty. The court accordingly dismissed the appeal and confirmed the Labour Court decision.

It is an accepted position that misconduct inconsistent with the fulfillment of the express or implied conditions of contract will ordinarily justify dismissal. There is no doubt that the Appellant conduct in this case clearly went to the root of her contract of employment. She however has sought to draw parallels with Ndeleziwe matter where the Supreme Court found that there had been no real prejudice suffered by the employer through Ndeleziwe actions and that there has to be in any operation a meaningful/reasonable margin of error. The factual circumstances in this matter are however distinguishable from Ndeleziwe matter.

The facts show that the Appellant was employed in a much senior position. She was the Human Resources Director. Her position was clearly strategic. She had failed to submit a board pack on time in circumstances where this was one of her key deliverables. The board pack also contained errors. Although the circumstances did not point to any material prejudice suffered by the Respondent as a result of her conduct a failure to submit board pack timeously would in the long term have an adverse effect on the effectiveness of the Board as found by the Appointed Designated Officer. The facts also revealed this was not a once off incident. Appellant had been warned previously on the need to submit board pack timeously. The fact that she had not received a proper written warnings was immaterial. The circumstances clearly pointed to a material breach which went to the root of the contract.

On the aspect of her conduct being trivial it remains within the employee’s exercise of discretion as to what penalty to impose. The employer in this case took a serious view of the matter and the aggravated nature of the misconduct. The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct the issue of a less severe penalty would not arise. See Circle Cement (Private) Limited vs Chipo Nyawasha SC 60/03.

It is also a trite principle of law that the employer has the discretion to impose penalty on its employees. This court sitting as an appeal court cannot lightly interfere with the employer’s exercise of discretion in regards penalty unless there was a misdirection or unreasonableness on the part of the employer. See Zimbabwe Platinum Mines (Private) Limited vs Ronald Godide SC 2/16. The Appellant having failed to clearly establish a misdirection or unreasonableness it cannot in the circumstances be said that the employer exercised its discretion unreasonably in this case.

In the result, it is hereby ordered as follows;

The appeal be and is hereby dismissed with costs.

……………………………………………

CHIVIZHE J

………………………………………….. I agree

MUSARIRI J