Emmanuel Nyama v Printflow

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/03/13
HELD AT HARARE ON 22nd October, 2012
CASE NO.LC/H/463/11
In the matter between:
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THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO.LC/H/03/13

HELD AT HARARE ON 22nd October, 2012      CASE NO.LC/H/463/11

In the matter between:

EMMANUEL NYAMA				Appellant

And

PRINTFLOW					Respondent

Before The Honourable G. Mhuri, Senior President

For Appellant   : Mr T. Makuyana (Legal Officer ZGWU)

For Respondent  : Mr S. Bhebhe (Legal Practitioner)

MHURI G,:

On the 10th of June 2011 Appellant was suspended from duty on the ground that he had fraudulently generated three (3) journals namely:-

Morgan Zintec for $406.00

Chitungwiza Hospital for $459.95

Dudzai Primary School for $550.01

without supporting documentation.

This was an act of misconduct in terms of Section 20 of Respondent’s Code of Conduct S.I. 148 of 2009 the penalty of which is a dismissal for a first breach.

For committing the above act of misconduct (fraud) Appellant was found guilty by the Disciplinary Committee and was dismissed from Respondent’s employment. He noted appeals to the Chief Executive Officer and the National Employment Council Appeals Committee who in turn dismissed the appeals.

Aggrieved by the National Employment Committee Appeals Committee’s determination, Appellant noted this appeal in this Court. His grounds of appeal (at record page 3c) can be summarised as follows:-

that the Appeals Committee disregarded the fact that when he signed the journals he did so at the instance of his superior Mr Bangwayo.

the failure to call Bangwayo to the Disciplinary Committee hearing to give evidence was detrimental to his case. The Chief Executive Office and the Appeals Committee failed to consider this gross misdirection. As a result he was not accorded a fair hearing.

Appellant was employed as a Credit Controller. His duties are stated in the Printflow (Private) Limited Accounting Procedure Manual (Record pages 37 to 39) which Appellant was aware of. Some of his duties were to:-

post receipts into respective Accounts

where payments are made by Head Office on behalf of Debts, transfer the money by Credit and Debit Journal.

allocate receipts to the invoices

update all Invoices, Credit Notes and Receipts

do Debtors reconciliations to ensure that all receipts and invoices were posted etc.

It is not in dispute that Appellant generated and signed the journals in respect of Morgan Zintec, Chitungwiza Hospital and Dudzai Primary School. His main bone of contention was that he signed these journals at the instance of his superior Bangwayo. He was following a lawful order lest he would be charged with insurbordination.

It is a trite position of the law that the order or instruction to be followed must be lawful. If it is not, then one is not obliged to obey it. See MATEREKE vs. C.T. BOWRING AND ASSOCIATES  (Pvt) Ltd. 1987 (1) ZLR 206.

It was Respondent’s submission that the order to sign which Appellant is relying on, was unlawful. As it was an order to sign journals without supporting documents, giving wrong narrations and falsely backdating the dates. In essence, Appellant was being told to breach the procedures in the Procedure Manual and to be dishonesty.

I agree with Respondent’s submission. Appellant was a Credit Controller, of 14 years experience. He was aware of what was required of him when raising journals. He signed some of the journals as the compiler when in actual fact he had not compiled them. He backdated the date on one of the journals to 2010 when he had signed it in April 2011. He gave a misleading narration on one of the journals to give the impression that the debt had been cleared. In view of the above this was certainly an unlawful order which Appellant was not obliged to follow.

If Appellant strongly felt that Bangwayo’s evidence was going to exonerate him, it was incumbent upon him to call him as a witness. He did not and therefore cannot put the blame on Respondent for not calling him.

It is also a trite position of the law that an appellate court will not interfere with the decision of a trial court based purely on factual findings unless it is satisfied that the findings were so outrageous in the defiance of logic or accepted moral standards that no sensible person who had applied his mind would arrive at such a decision.

HAMA vs. NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 SC

In casu, the Disciplinary Committee made factual findings which findings were confirmed by both the Chief Executive Office and the Appeals Committee. The findings were that:-

The accused (Appellant) hand not denied raising the Morgan Zintec journal without documentation.

He signed as the Compiler for the Chitungwiza Hospital and Dudzai Primary School although he did not compile them.

The Chitungwiza Hospital and Dudzai Primary School journals did not have supporting documentation.

He failed to account for the receipt he referred to on the Morgan Zintec journal.

He lied that he only had his job description to guide him although he had a procedure manual he signed in his personal file.

He did not make a physical follow-up to Morgan Zintec to check on the outstanding debt

He had been in the accounting field for a period of 14 years

He gave a false journal narration of what he did on the Morgan Zintec Account.

He worked as his superiors oral instructions as guarantee.

All these factual findings are supported by evidence on the record. As alluded to earlier, it is not in dispute that Appellant, raised the Morgan Zintec journal without supporting documentation, signing the Chitungwiza Hospital and Dudzai School journals as the compiler when he was not. There were no supporting documents for these two. He could not produce the receipt he used on the Morgan Zintec journal. He was aware of the Procedure Manual which bore his signature. He did not make physical follow ups to Morgan Zintec. The Morgan Zintec had a false narration. He had been in the accounting field for 14 years, he followed his superiors