City of Harare v Freddy Gonese

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/703/2016
HARARE, 19 MAY 2016 &
CASE NO LC/H/304/2015
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/703/2016

HARARE, 19 MAY 2016 &				          CASE NO LC/H/304/2015

4 NOVEMBER 2016

In the matter between

CITY OF HARARE							APPELLANT

Versus

FREDDY GONESE							RESPONDENT

Before the Honourable Manyangadze  J

For the Appellant	Ms A Zvoutete  (Principal Legal Officer)

For the Respondent	G Machingambi  (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award in terms of which the appellant was ordered to reinstate the respondent without loss of salary and benefits.

The factual background to this matter, briefly stated, is that the respondent was employed by the appellant as Market Clearing Officer, and at the material time performed his duties at Mbare Musika Market. His duties mainly involved collecting (clearing) cash receipted by Cashiers at the market, and banking it. During the period 24th November 2012 to 13th December 2012 cash amounting to US$88 379.00 receipted by the cashiers, could not be accounted for. It was alleged that the respondent, as the responsible Clearing Officer, failed to bank or account for the money.

The respondent was then charged with misconduct, in terms of Clause 11.5(b) of Part VI of the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010. The Clause cited frames the charge in the following terms;

“Unauthorized and intentional appropriation of property belonging to the employer or other person in the employment of the City of Harare, with the intention of permanently depriving the other of that property.”

In December 2013, the appellant’s Disciplinary Committee found the respondent guilty of the misconduct charge alleged, and imposed a penalty of dismissal.

The matter was referred to a Labour Officer for conciliation, and subsequently to compulsory arbitration. The Arbitrator held that the respondent was unfairly dismissed, and ordered his reinstatement. This prompted the present appeal.

The grounds of appeal are framed as follows;

“1.	The Honourable Arbitrator erred at law by making a legal finding that the appellant did not prove on a balance of probabilities that respondent misappropriated the money in question yet the respondent proved on balance of probabilities that the respondent had committed the offence after leading overwhelming evidence to that effect.

2.	The Arbitrator erred at law by making a legal finding that a co-clearing officer might have misappropriated the money in question yet when it was proved during disciplinary hearing that respondent was solely responsible for banking and the co-worker would only bank upon being instructed to do so by the respondent.

3.	The decision of the Arbitrator is grossly unreasonable and irrational in its defiance of logic to constitute a ground of appeal:

(a)	In that the arbitrator determined that the money was lumped up for banking when there was no proof of a lumped up deposit.

(b)	In that a bank reconciliation for all the financials of the appellant was necessary rather than a bank reconciliation for a particular collection and a particular account.

(c)	In that the Arbitrator considered that the respondent was not trained for the job and there was no written down procedure yet the respondent had been working for fourteen (14) years doing the same duties of cleaning market officers.

(d)	In that the Arbitrator considered that the receipting system was chaotic and problematic when cash collected and receipted by computer machines evidently went missing and could not be accounted for.

(e)	In fact the Arbitrator considered that there were two clearing officers during the period in question doing the same duties when in actual fact the other co-clearing officer only performed such duties on specified periods and upon the instruction of the respondent.”

The sole issue for determination is whether or not there was sufficient evidence to prove that the respondent misappropriated US$88 377-00. As I see it, all the grounds of appeal can reasonably and properly be condensed into that one fundamental issue. They merely elaborate that issue.

The appeal is an attack on the reasonableness or otherwise of the arbitrator’s finding that there was insufficient evidence to prove the alleged theft of the amount of US$88 377-00. The question as to whether or not the facts of the matter present sufficient evidence to sustain the alleged misconduct, is basically a factual enquiry into the sufficiency of evidence. When the respondent’s point in limine was dismissed, the appeal proceeded on the basis of the principle that a gross misdirection on the facts amounts to a misdirection on the law. This is essentially what the appellant argued, that the arbitrator’s findings were so grossly unreasonable they cannot be allowed to stand. This point came out clearly from Ms A Zvoutete’s submissions at the hearing of the matter, when she averred:

“(1)	Findings by arbitrator in clear defiance of evidence before him were grossly unreasonable. The court is entitled to interfere with an arbitral award that is grossly unreasonable.”

One therefore needs to closely examine the arbitrator’s findings and analysis, and determine whether they are grossly unreasonable, outrageous or irrational to warrant interference. It is on this basis the matter came up on appeal, as the arbitrator’s findings were on questions of fact. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

A critical issue in the respondent’s defence is that he worked with a co- clearing officer, at the material time. There is no way theft of the US$88 377-00 can be pinned down on him if he performed the same duties with another clearing officer. Submitted Mr Machingambi for the respondent, during oral argument:

“Relevance of the two clearing officers. The appellant alleges that the respondent was the sole clearing officer, and the person solely responsible for banking. Is there evidence to suggest that?

Page 85 – 93 – another clearing officer at the same time – various cashier forms signed by David Wunganai, during the same period. So we have two people doing the same duties – and the arbitrator finds to the same effect – is that grossly unreasonable?”

The appellant’s submissions indeed show that the averment that the respondent was the clearing officer solely responsible for collection and banking of cash during the material period was central to its case. Paragraph 14 of the appellant’s Heads of Argument sates:

“14.	The respondent received the cash amounting to US$88 379-00 at Mbare Musika District Office after having cleared the sixteen (16) Cashiers himself but did not prepare Banking deposits slips and daily income returns in preparation for banking as it is the case of all banking transactions.” (underlining added)

A proper resolution of this factual issue is, in my view, fundamental to the determination of this appeal. The arbitrator found that the two clearing officers did collect cash, and also did some banking during the relevant period. The arbitrator supported his findings with reference to the minutes of the disciplinary hearing. An excerpt from the minutes, which the arbitrator relied on, reads:

“DEPT	Were you performing the same duties as that of Gonese during the period in question?

WIT 2	Yes, but it differs on who is responsible for banking.

DEPT	Are you telling the committee that you were not doing the actual banking?

WIT 2	Yes, I was not but Mr Gonese was.

DEPT	Did you help each other to write deposit slips during this period?

WIT 2	No, unless I am authorized to do so.

DEPT	During the period in question is there any time when you did the actual banking?

WIT 2	Yes, during weekends maybe two weekends per month

(Under cross examination)

DEF	Do you know the cashiers who write the statements?

WIT 2	Yes

DEF`	Are there some whom you cleared during the period in question?

WIT 2	I know but I do not remember exactly whom I cleared.

DEF	Are you sure you did clearing duties during the period in question?

WIT  2	Yes, that is my job and since I was coming to work I cleared.”

(underlining added)

It is clear, Mr Wunganai, the co-clearing officer, indicated that he did the same duties as the appellant during the period in question. These duties involved clearing cashiers and banking.

Given these facts, the arbitrator’s finding to the effect that clearing and banking was done by two officials, over the same period, cannot be said to be grossly unreasonable or outrageous.

The implications of this finding are far reaching. The record shows that there is no specificity on the receipts collected and the deposits done. In other words, specific deposits could not be linked or traced to specific receipts or collections. This is something that could have been shown by a bank reconciliation statement, which was not made available. The appellant’s explanation was that this was well nigh impossible, as bank statements covered data not only from Mbare Musika, but various other  work stations.

This lack of specificify makes it extremely difficult to link the missing money to the respondent. It also renders immaterial his admission that he collected money from the cashiers. The appellant dwelt on this admission considerably, and seemed to make it one of the pillars of its case. The respondent was not admitting to collecting the figure of US$88 3 77-00, as alleged by the appellant. Paragraph 15 of the appellant’s heads of argument avers:

“Respondent also admitted to have received the amount in question through a letter which he wrote to Cashiers, which was attached as exhibit 2, and dated 13 August 2013, which reads ‘As per your request al Cashiers please be assured that I received and banked all cash received from Mbare Bus entry and market fees for the period 24 November 2012 to 10 December 2012.’”

Mr Machingambi, on behalf of the respondent, submitted during oral argument, reasonably in my view:

“The respondent had always been specific that when he acknowledged receiving monies collected, was doing no more than confirm what his duties were at the time, not necessarily acknowledging receiving the sum of $88 377-00 or misappropriating it.

Finding by the arbitrator that the respondent’s note did not signify acceptance of the misappropriation is supported by the evidence. Page 78, clear that much bigger sums than the sum of $88 377-00 were collected during the period in question.”

In this respect, it was the arbitrator’s finding that:

“The claimant argued that it was unfair for the respondent to say money was stolen in the absence of a bank reconciliation. Mr Musiiwa gave evidence that he was tracing a particular collection for a particular day from Mbare Markets to the bank in that particular account and in the bank that deposit would appear as it is that is if it is $2000 it will appear as $2000. However Mr Wunganayi testified that it is possible for the person responsible for banking to lump up money collected by many cashiers and bank it as one.

I am not able to accept the respondent’s argument that the reasonable inference which would be drawn from the facts on a balance of probabilities is that the claimant had stolen the money in question.”

US$88 377-00 is a large amount of money. It is alleged it was stolen over a period of 20 days, from 24 November 2012 to 13 December 2012. It has been shown that two clearing officers, holding the same grade and responsibilities, collected money and did some banking over the same period.

No bank reconciliation statement was made available, showing details of specific receipts vis a vis specific deposits. It was also indicated there was, in some instances, departure from precedence in the banking procedure, in that receipts from various cashiers were lumped up and banked as one, on one deposit slip. It was also found that the clearing officer was not part of the crew that went to the bank to deposit the money.

In the face of these serious gaps in the evidence that had been placed before the disciplinary committee, which the arbitrator was called upon to consider, can it be said that she grossly misdirected herself when she concluded:

“I am not able to accept the respondent’s argument that the reasonable inference which would be drawn from the facts on a balance of probabilities is that the claimant had stolen the money in question.”

In the circumstances, I am not persuaded that the arbitrator’s findings of fact were grossly unreasonable, outrageous or irrational.  I am unable to tamper with her conclusion that, in the circumstances of this matter, the respondent was unfairly dismissed.  In the light of this, the appeal cannot be upheld.

It is accordingly ordered that:

The appeal be and is hereby dismissed.

The arbitral award granted in favour of the respondent on 31 January 2015 be and is hereby upheld.

The appellant shall bear the respondent’s costs.

G Machingambi Legal Practitioners, respondent’s legal practitioners