Darlington Chibwe v Rainbow Tourism Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/628/2016
HARARE, 11 MAY 2016 &
CASE NO LC/H/976/2014
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/628/2016

HARARE, 11 MAY 2016 &					         CASE NO LC/H/976/2014

21 OCTOBER 2016

In the matter between

DARLINGTON CHIBWE							APPELLANT

Versus

RAINBOW TOURISM GROUP						RESPONDENT

Before the Honourable Manyangadze J

For the Appellant	I Mataka (Legal Practitioner)

For the Respondent     G Jacuosi (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of the respondent’s appeals officer, who upheld the appellant’s dismissal from the respondent’s employment.

The facts of this matter are, in the main, common cause. The appellant was, at the material time, employed as the respondent’s assistant purchasing manager. At the time of his dismissal, he had been elevated to the post of corporate buyer.

On 21 September 2009, the appellant, when he was assistant purchasing manager, prepared a vendor/supplier evaluation form in respect of a company named Flimex Investments.

The evaluation form recommended the company as a supplier of goods to the respondent. No site visit had been carried out to verify the recommended company’s suitability as one of the respondent’s vendors. The recommendation was done without verification of the data indicated on the form. This irregularity was unearthed during a forensic audit that was conducted after the appellant had moved to Head Office to assume the duties of the post of corporate buyer.

The appellant was charged with misconduct, in terms of the respondent’s Code of Conduct, the main basis of the charge being that he generated a Vendor Evaluation Form which contained falsified information.

An internal disciplinary hearing, chaired by a Designated Hearing Officer (Hearing Officer) found the appellant guilty and imposed a penalty of dismissal. An internal appeal, presided over by the respondent’s Chief Executive Officer as Appeals Officer, found no merit in the appellant’s appeal, and upheld the determination of the Hearing Officer. This then prompted the appeal to this court.

The grounds of appeal are stated as follows:

“1.	The appeals officer (Chief executive officer) erred in not finding that the designated officer grossly misdirected himself and such misdirection amounts to a misdirection as to the law in finding that the appellant recommended a supplier namely Flemix Investments to the respondent as an accredited supplier. The evaluation was not meant for any other purpose despite ISO certification and was actually a superior order.

2.	The appeals officer (Chief Executive Officer) erred at law in not finding that the designated officer had convicted the appellant on charges which were totally different from the ones he had been charged with hence a wrong decision emanating from wrong charges.

3.	The appeals officer grossly erred at law in not finding that the respondent had applied selective justice in disciplining the appellant. The whole evaluation process was hierarchical and the appellant’s role was actually sandwitched (sic) between other players below and above his position.”

A reading of the first ground of appeal, and the submissions made by the appellant in support thereof, shows that the facts alleged are, essentially not being disputed. The case must therefore be resolved on the premise that what is alleged to have occurred indeed occurred.

What the appellant has done however, is to proffer an explanation for his conduct. His explanation is that what he did was done in order to facilitate an ISO certification process.  It was not done with the intention to prejudice the respondent. Thus, the conduct sought to be justified in this manner includes the falsification of the Vendor Evaluation Form, in particular the endorsement that a site visit was conducted at the vendor’s premises, when no such visit was done.

In view of this, I agree with focusing the appeal along the lines submitted in paragraph 1 of the respondent’s heads of argument:

“From the appellant’s grounds of appeal and heads of arguments, it is not in issue that the appellant violated the respondent’s code of conduct. The appellant accepts that his conduct indeed amounted to a misconduct which is punishable under the code of conduct. The appellant’s appeal therefore contests the penalty of dismissal meted by the Disciplinary Committee and upheld by the Appeals Officer. He avers that in light of his motive while committing the offence and the penalties awarded other employees in the same circumstances, the penalty of dismissal is excessive.”

The averments made by the appellant do not put the fact that the misconduct was committed in issue. He rather seeks exoneration on the basis of the motive for the perpetration of the misconduct. He further seeks exoneration on the basis of alleged selective justice, the contention being that other employees who allegedly perpetrated the same misconduct did not suffer the same fate as he did. The employer was allegedly selective in his conduct of disciplinary proceedings, exonerating some employees whilst condemning others, for conduct arising out of the same facts.

A look at the appellant’s heads of argument clearly shows emphasis on these two aspects i.e. motive for commission of the acts complained of, and selective justice. The motive aspect is highlighted in paragraph 2.6 of the appellant’s heads of argument, which reads:

“2.6.	In casu it is submitted that there was gross misdirection on the facts which misdirection mutate into a point of law when the appeals authority failed to realize that the V.E. Forms were filled collectively by the concerted efforts of the purchasing department as a group not by a single individual being the appellant in this instant case. Hence it is submitted that the appeals authority grossly erred and misdirected himself when he fail to reasonably realize that the Vendor Evaluation forms were for purposes of ISO certification which certification the respondent always thrives to obtain for purposes of standardizing its products.

2.7	In casu, the appellant had no sinister ulterior motives against the respondent as he had served the same since 2006 diligently and vigilantly.”

The selective justice aspect is reflected in paragraph 2.13 of the appellant’s heads of argument:

“2.13	In casu as has been amply demonstrated that Sandra who by then was appellant assistant, was reinstated to her previous position. Surely if a wrong has been done collectively why then should the punishment be meted out singularly or individually? Even in criminal law, an accomplice will have the same sentence as that of the main perpetrator. But surprisingly here we notice the respondent ignoring the fact that the alleged misconduct was caused not by the appellant but by the whole department. Hence if the respondent was to be fair in all respects other employees should also have been dismissed.”

Having regard to this approach to the appeal, Mr Jacuosi, for the respondent, correctly submitted during, oral argument:

“What may perhaps be of issue in this appeal is on the findings of penalty. On the findings of guilt – this is a flawless case.”

On the motive to aid or expedite the ISO certification process; it is pertinent to note how the disciplinary hearing treated this issue.

The disciplinary hearing was told, by Mr Mtukwa the complainant, that it was not necessary at all to falsify information in order to obtain ISO certification. The fact that there were non-conformities in certain respects did not preclude the awarding of the certification. Mr Mtukwa stated, at page 2 of the hearing minutes:

“Within the process of ISO certification there are Non-Conformities that can be raised, there was really no need to falsify the document as it would still have been approved under completion of the non-conformities.”

An examination of the vendor Evaluation Form is instructive. It indicates, among other details, the date when it was prepared, and by whom it was prepared. It was prepared by the respondent. He is the one who compiled the data. It shows he is the one who filled in the form, on the basis of which the concerned vendor’s evaluation was done. The form constituted recommendations for acceptance of Flimex Investments as a vendor.

In my view, it matters not whether this was an initial acceptance or retention of an existing vendor. It was based on recommendations appearing on the form prepared by the assistant purchasing manager.

The score sheet shows the rating done, on a scale of 1 to 5. Among other rated items, is the one on:

“Vendor Premises; suitability to business; hygienic conditions (food items)”.

It was given the maximum rating of 5. It is an admitted fact no visit to the premises was done. That, clearly, amounts to doctoring of the evaluation form. It was a misrepresentation that an inspection of the premises was carried out and they were found to be in top notch condition, deserving a 5 out of 5.

This is what the disciplinary hearing officer found to be unacceptable, even if the respondent’s motive of expediting ISO certification were to be take into account.

The appeals officer underscored this point in his analysis of the appeal – the misrepresentation done in the evaluation form. He expressed himself this way:

“My analysis of the case record reveals that the gravamen of this case lies in the falsification of information through the vendor evaluation form completed by the appellant. A reading of the hearing proceedings reveals that it is not in dispute that the appellant falsified the forms. He however tries to justify his actions on the basis that this exercise was just a form filling exercise aimed at cheating SAZ Auditors into issuing the hotel with some ISO certification certificates. I am not persuaded by that argument. The appellant never at any point led evidence during the proceedings to the effect that the whole exercise was just a fuss. Surely he should have brought in witnesses to support his case that the whole Vendor evaluation exercise was not genuine.

A closer analysis of the Vendor Evaluation form itself and the relevant BOP clearly shows that there is no way one could effectively evaluate a vendor without visiting their premises. Any such action would be a clear misrepresentation of facts. The form among other things required that one evaluates vendor premises and their suitability to business. One then did the appellant arrive at a rating of five without visiting such premises?”

The hearing officer’s findings, which were purely factual, cannot, in the circumstances, be said to be grossly unreasonable or irrational. In turn, the appeals officer’s findings cannot be said to be outrageous or grossly unreasonable, when he upheld the hearing officer’s findings of fact. This court, being an appellate court finds no basis on which to upset those findings. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

Given the facts and circumstances looked at, the explanation that the falsification of this basic and essential document – the evaluation form, was in aid of ISO certification does not assist the appellant. It was an accreditation process founded on a falsified document, and therein lay the appellant’s culpability. It matters not what his motive might have been.

If the employer viewed the appellant’s conduct seriously, there is very little room to manouvre in interfering with its discretion on penalty. As was stated in Standard Chartered Bank v Chapuka SC 125-04, a breach of trust in an employment relationship is enough to justify dismissal.

The respondent, in paragraph 11 of its heads of argument, aptly points out the gravity of the appellant’s conduct, and the risk such conduct posed to its business and reputation. This paragraph expresses the respondent’s concern in the following terms:

“11.	If indeed the appellant had the best interests of the respondent at heart, he ought to have given thought to the effects of such falsification becoming known to the Standards Association of Zimbabwe which grants ISO certification to companies that meet the required standards. ISO certification is a stamp of quality of a company’s business standards. It is that which suppliers and customers seek. If it were to be known that Rainbow Tourism Group acquired ISO certification in a fraudulent manner, what would result goes beyond embarrassment of the respondent as a well-recognised company. Such

information would destroy business confidence of the respondent’s suppliers and customers alike. The appellant therefore put the respondent in an unconscionable position through his misconduct, and such conduct cannot be justified in any way. More so, where it was not necessary.”

The court is therefore unable to find any misdirection in the appeals officer’s determination, which upheld the appellant’s dismissal by the hearing officer. For the aforesaid reasons, I find no merit in the first ground of appeal.

The second ground of appeal relates to the propriety of the charges with which the appellant was convicted. It is difficult to appreciate the basis of this ground of appeal. As indicated, the charge levelled against the appellant was inconsistent conduct or omission. The appellant captures it in paragraph 1.3 of its heads of argument as:

“The charges where in terms of section 1.2.28 of the respondent’s code of conduct, in particular, “Inconsistent conduct or omission”in that the appellant had by filling the Vendor Evaluation Form, recommended a certain supplier without visiting the site of the same.”

This is precisely what the appellant was convicted of. The disciplinary hearing minutes show that he was cleared of other allegations for want of evidence, such as those relating to the purchase and delivery of Cheeseman products. He was then convicted of the allegations relating to Flimex Investments, which allegations he was facing.

This ground of appeal was not persued in the appellant’s heads of argument, which are devoted to the parity principle. There is therefore no need to detain the court on the second ground of appeal. It seems to me it was virtually abandoned. It does not feature in the appellant’s heads of argument, and no meaningful submissions were made in respect thereof during oral submissions. The averment that the disciplinary proceedings were at some point arborted and the appellant clandestinely brought back to work was unsubstantiated. It is not borne out by the record. The record shows that a disciplinary hearing was held on 22 February 2011, and a determination handed down on 16 March 2011. It also shows that the appellant appealed against that determination and lost, hence the appeal to this court.

The second ground of appeal has therefore not been substantiated in any way and cannot be upheld.

The third and final ground of appeal deals with the issue of selective justice. The appellant contended that if other employees were reinstated, such as one Sandra, there was no justification for his dismissal.

The appellant referred the court to the case of Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (S).

The respondent, in countering the appellant’s averments in this regard, contended that the appellant did not demonstrate how the respondent applied selective justice. It averred that it is not enough to merely allege that there was selective application of discipline. It must be clearly shown in what respects this was done. The respondent made reference to numerous cases, mainly South African, in support of this contention. These included SA Municipal Workers Union v City of Cape Town (2011) ILJ 2018 (LC), Masubelele v Public Health and Social Development Setorn/Bargaining Council & Others (2013) ZALCJ HB 3 and African Bank v Megashima & Others (2014) ZALC JHB 519.

The basis of the respondent’s contention, on selective discipline, is that there was no evidence to substantiate the appellant’s averments. It was just a bald averment. There should have been details, beyond a mere averment, to show the inconsistency in how the various disciplinary cases were handled. Indeed, the record shows no substantiation of the appellant’s allegations. On this basis, this ground of appeal fails.

There is another dimension to this issue, quite apart from the question of evidence of selective discipline. Neither the appellant nor the respondent adverted to it. It is the question of whether or not the parity principle is applicable in our law. While it is well recognised in South African law, judging from the cases referred to by the respondent, it does not seem to have the same recognition in Zimbabwean law.

The approach in Zimbabwe, it appears, is that the employer has the prerogative to determine as to who and how to apply discipline. The defence that other employees have not been penalised for the same misconduct, it seems, is not available in our law. See Lancashire Steel v Elijah Mandevana SC 29-95, Dube v Standard Chartered Bank SC 105-04.

In Dube v Standard Chartered Bank (supra), ZIYAMBI JA remarked:

“In the instant case authority was granted to terminate the appellant’s services on the grounds of gross incompetence or inefficiency in the performance of his work. It matters not that authority was not sought for the dismissal of others who performed badly.” (emphasis added)

As I have already indicated, this point was not specifically argued by the parties. The appellant’s third ground of appeal failed on the basis that he failed to demonstrate how the alleged selective discipline was applied.

Taking all factors into account, the appeal cannot succeed.

In the result, it is ordered that:

The appeal be and is hereby dismissed in its entirety.

The appellant shall bear the respondent’s costs.

Chambati, Mataka & Makonese, appellant’s legal practitioner

Dube, Manikai & Hwacha, respondent’s legal practitioner