City of Harare v Palmer Muzavazi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/569/16
HARARE, 12 JULY 2016
CASE NO.
JUDGMENT NO. LC/H/569/2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/569/16

HARARE, 12 JULY 2016				     CASE NO. LC/H/1057/14

AND 23 SEPTEMBER 2016

In the matter between:-

CITY OF HARARE					Appellant

And

PALMER MUZAVAZI				Respondent

Before The Honourable E. Muchawa, Judge

For Appellant	Ms A Zvoutete (Principal Legal Officer)

For Respondent	Mrs R. Peters (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award which reversed a decision of the disciplinary committee which had found the respondent guilty of misconduct and dismissed him from employment.

The respondent was employed by the appellant as a charge hand.  In October 2006 he was appointed to be acting superintendent.  In 2008 he then performed the duties of assistant workshop manager in an acting capacity.

It was whilst acting in this role that the respondent was charged in terms of Part IV Clause 4 (1X) of the Collective Bargaining Agreement: Harare Municipal Undertaking (Code of Conduct and Grievance Handling Procedure) SI 17/2007).  He was charged for gross dereliction of duty, that is, neglect of duty which results in the abandonment of all attention to production, administration or management activity.

The facts giving rise to the charge were that between the 25th July and 3rd August 2009, the respondent had, without the approval of the Director of Engineering Services, caused the towing of sixty two (62) municipal vehicles from the automotive workshop to the Central Stores Sales Yard for disposal by auction.  Further that he had caused the stripping of essential parts from such vehicles as they were found, upon examination, stripped of such parts.

The disciplinary committee found the respondent guilty as charged and dismissed him from employment.  Dissatisfied, the respondent appealed to the Harare Municipal Undertaking.  The matter ended up before arbitration and the arbitrator found that the respondent had been unfairly dismissed and ordered reinstatement to the position of charge hand or alternatively damages.

On appeal before me are the following grounds;

The Honourable Arbitrator erred at law in making a legal finding that when respondent was appointed to act in the position of Acting Assistant Workshop Manager no induction or handover take-over were conducted hence disregarding the evidence of the 3rd Appellant’ s witness at the disciplinary hearing yet there was evidence before the tribunal that inductions and familiarization of the job and handover and takeover was done upon respondent’ s appointment to act as Acting Assistant Workshop Manager (sic).

The Honourable Arbitrator erred at law when he made a legal finding that Appellant had failed to provide evidence that Respondent stole the motor vehicle parts yet Respondent was not charged with theft of motor vehicle parts but was charged with gross dereliction of duty, neglect of duty which results in the abandonment of all attention to production, administration or management activity which led to vehicles being stripped of parts.

The Honourable Arbitrator erred at law when he made a finding that Appellant had failed to produce evidence to prove the procedure for moving of vehicles from the automotive workshop to the sale yard and how the authority should be obtained yet the evidence of the Appellant’ s three (3) witnesses which corroborated each other laid down the procedure and also the job description which indicates the reporting structure was produced by Appellant to prove the procedure and how authority is obtained.

The Honurable (sic) Arbitrator erred at law in failing to understand and appreciate the charge which Respondent was charged with, disciplined and dismissed for.  The Arbitrator assumed that Respondent was charged with theft yet respondent was charged with gross dereliction of duty which led to the stripping of the motor vehicle parts and hence there was no onus on Appellant to prove that Appellant stole the motor vehicle parts, disposed of them and converted the proceeds to his own use.

The arbitrator’s award is grossly unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal.

It is prayed that the arbitrator’s award be set aside with each party bearing its own costs.

The respondent abandoned its point in limine that the grounds of appeal do not raise any point of law.

Ground number 5 of appeal was not addressed before me and I take it as abandoned as it is an omnibus ground which seems to me to qualify all the other grounds of appeal.

I deal with grounds 2 and 4 together first, then 1 and 3 in turn.

Grounds 2 and 4

It was argued for the appellant, that the arbitrator erred by creating his own charge of theft and then placing a burden to prove such theft, on the appellant.

The respondent’s argument is that the arbitrator correctly found that the respondent did not steal any vehicle parts and that one of the charges was that the respondent had “without authority caused the stripping of essential parts from a number of vehicles.” This is alleged to imply that the respondent was charged with theft and that the appellant failed to formulate its charges clearly.  It is further argued that the specific charges of towing vehicles for disposal by auction and causing the stripping of essential parts are in no way related to dereliction of duty.

This matter is easily disposed of by referring to the minutes of the hearing on page 2 which is record page 22.

The charge as read out to the respondent was stated as follows;

“Mr Palmer Punish Muzavazi is being charged of contravening Part IV Clause 4 (IX) of the Statutory Instrument 17 of 2007 Collective Bargaining Agreement:-  Harare Municipal Undertaking (Code of Conduct and Grievance Handling Procedure) Gross dereliction of duty, neglect of duty which resulted in the abandonment of all attention to production, administration or Management activity in that; sometime between 25th July and 3 August 2009, he without authority caused the stripping of essential parts from all departments which were under repair at the Automotive Workshop to the Central Stores Sale Yard for disposal by auction.”

Clearly, there is no aspect of theft in the charge of gross dereliction of duty.  What respondent calls the charges are the particulars giving rise to the charge.  There was therefore no onus on the appellant to prove any theft on the part of the respondent.  A party only has a duty to prove what it alleges.  Astra Industries Limited v Peter Chamburuka SC 27/12.  The appellant had not alleged any theft by respondent and therefore did not have a duty to prove that.

Ground 1 – Induction or handover takeover

The appellant contends that the arbitrator erroneously concluded that there was no induction or handover takeover when the respondent took on the position of acting assistant work shop manager.  It is averred that the respondent was acquainted with the duties of assistant workshop manager as shown by the evidence tendered by the appellant to prove that there was familiarisation of the position.

There is however unrebutted evidence from witness number 3 on pages 10 and 11 of the disciplinary hearing minutes which are record pages 30 and 31.

The witness explains that he initially appointed respondent to act as Acting Superintendent in October 2006 and “the post reverted to Assistant Workshop Manager due to the turnaround”.  Respondent then started performing the duties of assistant workshop manager from 2008.

He explains that the respondent was therefore the head of automotive workshops and outlines the duties expected of the respondent as ensuring the smooth running of the workshop, coordination of workshop activities to ensure effective capacity utilization and management of the input and output activities of the workshop.

This witness is the one who appointed the respondent to the position in question.  He further explains that they discussed the functions in question and worked together to come up with the new job description of assistant workshop manager.

Further, on page 32 of record, this witness further explains that it was the respondent’s responsibility to keep a record of vehicle parts taken from a vehicle and an indication of the destination of such parts.

I note that all this was not rebutted in the cross examination of the witness.

The respondent makes the averment that there were no signed documents confirming what vehicles were in the workshop and their condition at the time of his assumption of the acting assistant workshop manager post.

The 2nd witness of the appellant however said the following on record page 27 being page 7 of the minutes;

“When we got the directive that there was stripping of parts from the Automotive workshops which warranted investigations to establish the extent, we decided to revisit some inventory form which we had earlier on used to ascertain the status of vehicles which were parked in the Automotive Workshops last year from 4-6 August 2008 we conducted on exercise to ascertain the conditions of vehicles which were parked in the Automotive Workshops awaiting to be attended to.  The department Engineering Services through the Automotive Workshops designed a standard form.  That form is the standard form that we use to list missing items and available items.  It forms the basis of our investigations.”

That form is part of the record as exhibit 2 and the investigations are said to have established that each vehicle had parts stripped off.

Witness number 2 does indicate that for vehicles which entered the workshop after the inventory, they had no record to check against as no further inventory was done.  I note this was under respondent’s watch.

In similar manner, the evidence of the 2nd witness was not rebutted under cross examination.

I find therefore that the arbitrator erred in concluding that there was no induction to familiarize the claimant with his job and that there was no handover and take over conducted.  There may be no handover takeover certificate signed by the respondent but an inventory was duly conducted.  As the person in charge of the workshop he should have continued to keep an ongoing inventory to ensure a smooth running of the workshop, effective capacity utilization and management of the input and output activities.

Ground 3 – Unauthorized movement of vehicles

It was argued for the appellant that the arbitrator erred when he found that the appellant had failed to produce evidence to prove the procedure for moving of vehicles from the automotive workshop to the sale yard and how the authority should be obtained yet such evidence was availed by the appellant’s three witnesses.

It was contended too that the arbitrator mixed up the two counts in the offence.  I was pointed to the minutes of the hearing for proof that the respondent admitted to towing of vehicles without authority therefore there was no need for the appellant to prove this aspect.  The second count relating to the causing of stripping of vehicle parts is said to have been duly proved.

Mrs Peters, for the respondent argued that the respondent’s admission of towing vehicles without authority is not an admission of gross dereliction of duty or gross negligence.  Such towing of vehicles is said to have been part of the due performance of his duties.  It is alleged that he had a list of vehicles to be towed.  Vehicles were opened and missing parts were listed in the presence of police details who monitored the exercise.

It boggles the mind why the arbitrator expected the appellant to prove how authority should be obtained prior to moving vehicles by producing a policy document.  This is because in providing his defence outline, the respondent admits that “on the issues of authority to dispose the vehicles there was no authority from the Director I agree.”

The respondent’s defence representative when asked to clarify on the plea says this,

“Yes Madam it is partial plea.  It is an admission of guilt to one charge of towing these vehicles for auction without Council authority.”  He even confirms that the appellant can proceed to address that charge on the disputed aspect of causing the stripping of motor vehicle parts only.  It is trite that a formal admission, unless withdrawn, prevents the leading of any further evidence to prove or disprove the admitted facts.  See Mining Industry Pension Fund v Dab Marketing Pvt Ltd SC 25/12.

The witnesses of the appellant adduced evidence on the procedure and pointed out two critical anomalies being that the vehicles were being disposed of without consulting the relevant departments and that the shells of vehicles were sent for disposal without being mock assembled.  The list used for the disposal was said to be typed but also had additions in long hand.  The respondent is alleged to have admitted that his list included vehicles not ear marked for disposal. He had also not printed the vehicle condition report form nor filed it in for each vehicle.  No record was kept of the movement of motor vehicle parts.

The above evidence was not rebutted.  There was therefore no basis for the arbitrator’s finding that there was no evidence regarding the procedure for the movement of motor vehicles.  Respondent was aware of the risk involved and involved municipal police details to monitor the process.  He however neglected his duties as he did not put in place the extra measures outlined which would have made sense of the presence of the police details, instead of the sham it turned out to be.

Accordingly the appeal succeeds in its entirety and the following order is made,

The award of Honourable Arbitrator L. M. Gabilo of 3 November 2014 is hereby set aside.

Each party bears its own costs.

J. Mambara & Partners, respondent’s legal practitioners