Catherine Katsande v Petrotrade

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/219/24
HARARE 13 FEBRUARY, 2024
AND 17 MAY, 2024
In the matter between:-
CATHERINE KATSANDE
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 13 FEBRUARY, 2024
AND 17 MAY, 2024

In the matter between: -

CATHERINE KATSANDE
Appellant

Versus

PETROTRADE
Respondent

Before the Honourable L. Hove, Judge:

For Appellant : Advocate T. Mpofu
For Respondent : Mr .P. Dube

The appellant was dismissed from work after having been found guilty of acts of misconduct.
Dissatisfied with the findings and the penalty, she appeals to this court.

Background

The appellant was employed by the respondent as a general manager. She faced two charges as per pages 182 to 184 of the record. The first charge was gross incompetency or inefficiency in the performance of her work. The second charge was that she had committed any act or conduct or omission inconsistent with the fulfillment of the express or implied conditions of her contract of employment.

She was found guilty of all 3 counts of the first charge that is gross incompetency or inefficiency in the performance of her duty. Further she was found guilty of counts four and five of the second charge of committing any act or misconduct or omission inconsistent with the fulfillment of the express or implied conditions of her contract of employment. She appealed against both conviction and sentence.

Amended grounds of Appeal

She filed 10 amended grounds of appeal and in her amended grounds of appeal, she raised the following amended ground number 9;

“Having correctly observed that Appellant was charged with crassa as well with incompetence or inefficiency. The authority erred in not pronouncing itself on the requirements of both charges and in living matters material to its determination open to speculation.”


The 3 counts that particularized the first charge of which the appellant was convicted, alleged gross inefficiency or incompetence in the manner the appellant had performed her duties. In convicting the appellant however, the Tribunal a quo did not state whether or not the appellant was being found guilty of either gross incompetence or inefficiency. The charges were in the alternative and it was important for the tribunal a quo in its analysis of the evidence which had been placed before it to be clear as to what exactly she was being convicted of or what exactly had she been found guilty of. It could either have been gross incompetence or inefficiency. The conviction ought to have been for either or but not both charges. The Tribunal a quo did not specify what it was that the appellant was convicted of. Gross incompetence differs from inefficiency for this reason the tribunal a quo ought to have specifically stated what exactly it was that the Appellant was convicted of.

In its analysis, the tribunal a quo referred to a case that dealt with gross negligence but fails to relate that case or gross negligence to the case it was dealing with which dealt with gross incompetent or inefficiency. The findings of guilty in relation to the three counts of the first charge are incompetent in that the findings are not specific and fail to make it clear which of the charges she had been found guilty of. Was its inefficiency or incompetence. The appellant is left unsure as to what exactly she has been convicted of. The Tribunal a quo misdirected itself in this regard and the conviction cannot be left to stand.

The appellant was also convicted of counts four and five of the second charge.

**Count 4 of the second charge**

The specific allegation was that the appellant had disregarded the engineer’s reservations and authorized the purchase of tank gauging system from Kaltrade which failed to deliver the gauging system.

The tribunal a quo did not show, in convicting the appellant of this charge, which of the appellant’s term of employment had been breached by the appellant by overriding a subordinate’s opinion. Was the act of overriding the views of a subordinate when you are the general manager, an act inconsistent with her contract. It was not shown how overriding a junior’s opinion constituted an act inconsistent with their contract terms of employment. The Tribunal a quo ought to have considered that there was nothing pointing to a term of employment of contract which was breached by the appellant who had considered that the alternative supplier was more expensive. In any event the general manager was not obliged in terms of her contract to follow the instructions of a subordinate. She was the person overall in charge and while she could consider the views of her subordinates, she was ultimately responsible for the decisions she had to make.

It is my consider view therefore that this count was not proved. In any event the tribunal a quo acknowledges that the gauging system was eventually delivered. The charge alleges that Keltrade failed to deliver. This particular of the charge was not proved. The appellant ought to have been found not guilty on the basis that the evidence before the tribunal a quo did not prove the allegations made.

**Count 5 of the 2nd charge**

The charge that the appellant was facing was that she had failed to advise the board that the ethanol project was only operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed. When two pumps were delivered, they were found to be wrong specifications. Further it was alleged that the appellant had failed to advise the board of the fact that two pumps delivered were of wrong specifications. Further, it was alleged that the appellant had also failed to advise the board that;

a) The tank gouging system at Ferruka was not working since its failure in 2017.


b) the required repair component had not been delivered despite payment having been made in 2015.
c) That the company was relying on readings from the customer, NOIC.

Again, it was not made clear in the evidence which terms of the appellant’s contract were breached and by which act of hers. The terms that had been allegedly breached ought to have been identified. It was left unclear whether what she did or failed to do constituted a breach on her contract of employment. This was important especially in view of her defense that there was nothing required of her to report to the board, the company was functioning well and it was not everything that she had to report to the board. She stated that Keltrade had been preferred because of the fact that they could operate in spite the sanctions imposed on the company. Her defence was that the company was running smoothly and there was nothing to report to the board.

Had the respondent identified the specific actions or omissions and tied them to specific terms of a contract or shown how her actions or omissions constituted a breach of her contract of employment, they would have managed to prove their allegations. As matters stand, it is not clear whether in terms of the contract the appellant was supposed to report that 3 pumps had not been delivered, that there were problems with the tank gauging system, that repair parts had yet to be delivered or that there were problems with the reading system.

The respondent ought to have demonstrated that the appellant acted in a manner contrary to her contract and referred to the contract terms which were breached. This was not done. It therefore could not have been found on a balance of probabilities that she had committed the offenses. That she had breached terms of her contract by failing to report those specific issues. Without being specific in their findings, the appellant is left to wonder what it is she failed to do or omitted which constituted a breach of her contract of employment.

I am aware that the finding in relation to the finding of guilty vis a vis charge 2 count 4 and 5 are factual findings and an appellate court should not readily interfere with the decision of the trial tribunal based purely on the factual findings unless it is satisfied that having regards to the evidence placed before the trial tribunal the findings complained of are so outrageous in their defiance of logic that no sensible person who has applied their mind to the questions to be decided could have arrived at such a conclusion. See the cases of **Bitco v Rosenben 1936 AD 380, Hama v NRZ (1) ZLR 664 (5).**

It is however my considered view that the evidence before the trial tribunal did not prove that the appellant’s actions or inactions insofar as they related to the second charge were in breach of her contract of employment. No evidence was given to prove that the appellant had acted in a manner that breached her contract of employment. Had the tribunal a quo applied its mind to the allegations against the appellant and the need to prove such allegations it would not have made findings of guilty in circumstances where there was no proof of commission of an act or acts which breached the appellant terms of her contract. It was the respondent who ought to prove its allegations. It is a basic principles of law that he who alleges must prove. See **Heywood Investments pvt ltd t/a GDC Haulers v Zakeo SC 32/13.**


The tribunal a quo’s decision on the facts was grossly irrational and this court can interfere with the factual findings.

Several other issues had been placed before the Court for determination but the Court has considered that;


a) Its findings in relation to amended grounds of appeal number 7 that is whether or not the appellant was bound to follow her subordinate’s recommendations.

b) Its finding in relation to amended ground of appeal number 8 that it had not been approved that she had an obligation to report to the board that the ethanol project was only operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed. When two pumps were delivered, they were found to be wrong specifications. Further it was alleged that the appellant had failed to advise the board of the fact that two pumps delivered were of wrong specifications. Further, it was alleged that the appellant had also failed to advise the board that;

   i. The tank gouging system at Ferruka was not working since its failure in 2017.

   ii. the required repair component had not been delivered despite payment having been made in 2015.

   iii. That the company was relying on readings from the customer, NOIC.

c) Its findings in relation to amended ground of appeal number 9 that no specific findings were made by the Court a quo in relation to all three counts of the first charge.

It becomes unnecessary to decide all the other issues as the findings made are capable of putting the whole matter to rest. See Longman Zimbabwe (Pvt) Ltd v Midzi and ors 2008 (1) ZLR 198.

Accordingly, the following order is made;

**Order**

1. Appeal be and is hereby allowed with each party bearing its own cost.
2. The decision appealed against be and is hereby set aside.
3. The appellant is acquitted of the allegations she was facing and had been convicted of.
4. Appellant is to be reinstated with no loss of salary or benefits into her position with the respondent or alternatively paid damages in lieu of reinstatement.
5. In the event that damages are to be paid, the parties are to agree as to the quantum thereof or alternatively either of the parties can approach this Court for quantification.
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