Farasi Mashongwa and Shorayi Freddy Makatare v Premier Service Medical Investments

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 6TH
JUDGMENT NO LC/H/272/23 CASE NO LC/H/112/
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 6TH JULY 2023 AND 15 SEPTEMBER 2023

In the matter between FARASI MASHONGWA AND

SHORAYI FREDDY MAKATARE

AND

PREMIER SERVICE MEDICAL INVESTMENTS

JUDGMENT NO LC/H/272/23 CASE NO LC/H/112/ 23&LC/H/128/23

1ST APPELLANT

2ND APPELLANT

RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR BOTH APPELLANTS : MR C. TACHIONA (Legal Practitioner)

FOR THE RESPONDENT	: MR N. TONHODZAYI (Legal Practitioner)

MAKAMURE J.

The appellants in the present matter noted their appeals separately. However, they were employed by the same employer and the facts of their cases are similar. On 6th June 2023 an application for consolidation of the matters was made and it was granted. Their matters have therefore been heard together.

Each of the appellants was charged with ‘Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her contract.’ This is a violation of Section 10.4.14 of the respondent’s employment code. Disciplinary proceedings were conducted against each of them. They were separately convicted with each being penalized with dismissal. Their internal appeals failed hence the present appeal. The following are the grounds of appeal for the first appellant :

“1 The Appeals Authority erred by confirming the decision of the Disciplinary Authority which was based on an improper charge when the actual charge as pointed out by the facts on the record should have been that canvassed in section 10.3.7 or section 10.3.14 of the Code of Conduct.

The Appeals Authority erred by confirming the decision dismissing the Appellant from employment as the decision was grossly unreasonable to the extent that no reasonable person acting in the position of the Appeals Authority would have reached at that decision as it is clear from the record that the Appellant was not directly involved in the process which led to the loss of the property in question.

The Appeals Authority erred in law by failing to take into account the general principle of law and as incorporated in section 4.2and 4.3 of the Code of Conduct that,” disciplinary action should in the first instance be educational and then corrective , punitive action should only be taken when the first steps have proved ineffective”, when there was clear evidence on the record that that the appellant never committed a misconduct of the same nature before the commission of the alleged offence for which an educational or a corrective action was taken.

The Appeals Authority grossly erred in law by confirming the dismissal and failing to consider the general principle of law that, to dismiss an employee who is charged with the charge Appellant was being charged with , the conduct should have gone to the root of the employment relationship, whilst in the present case there was no evidence that the alleged misconduct had gone to the root of the contract.

The Appeals Authority erred at law by failing to take into account that dismissal is only preferred when the commission of the alleged offence show(sic) that the continuance of a normal employer and employee relationship has in effect been terminated. There was no evidence to that effect.

The Appeals Authority erred in its decision to confirm dismissal as that decision was grossly unreasonable to the extent that no reasonable person sitting in its position would have reached at that conclusion when regard is given to the fact that the Appellant was not directly involved in the loss of the property in question, the Appellant had never committed a similar offence during his 10 (ten) year period of employment , the Appellant would channel his personal resources for the progression of the company and all the mitigation factors that were laid down by the Appellant.’

The following are the grounds of appeal for the 2nd appellant:

‘1 The Respondent erred and misdirected itself at law by confirming the decision and penalty imposed by the Disciplinary Authority despite the fact that the essential elements of the charge were not proved and the triable defence proffered by the Appellant in his Defence Outline.

2The Respondent further erred and misdirected itself at law by failing to appreciate the Appellant’s argument that the Disciplinary Authority had wrongly preferred a charge under category D despite the fact that the allegations which Appellant stands charged with fell within the confines of Section10.3.2 of the Code of Conduct.

3 The Respondent further erred and misdirected itself at law by confirming the verdict of guilty of the Appellant based on the acts committed by others, the security guards who wrongfully released the air conditioning units to fraudsters without following proper laid down procedures.

4. In the event that this Honourable Court finds favour with the verdict of guilty, the Appellant will argue that the Respondent erred and misdirected itself at law by totally ignoring all the mitigatory factors submitted in favour of the Appellant including his ailing health due to a terminal illness that he is living with by confirming the penalty of dismissal and ignored the legal requirement to consider alternative penalties before resorting to the capital penalty of dismissal.

5 The Respondent further erred and misdirected itself by confirming the decision and penalty imposed by the Disciplinary Authority without justifiable grounds for disregarding the recommendations made by the Disciplinary Committee to the effect that the Appellant should be found guilty and face the penalty of demotion with the appropriate reduction in wage/salary without a justification.’

The facts of the matters are largely common cause. They are as follows.

The two appellants were employed by the respondent as loss control officers. Their duties included supervising guards who were protecting the respondent’s premises and assets. The respondent put in place procedures to enable proper recording of assets .When assets were being moved from one place to another such procedures were to be adhered to and further, this was supposed to be recorded. This ensured that at all times the respondent’s assets were accounted for and traceable.

The allegations against the appellants are that a total of forty -two ( 42 ) air conditioners belonging to the respondent were fraudulently removed from respondent’s premises at a place called Tendeseka Park. One (1) of the 42 was actually removed by the appellants but the laid down procedure was not followed. In the process of removal of the assets, that is, the air conditioners, the fraudsters showed the security guards who were on duty certain documents resulting in the unlawful removal of the said air conditioners.

At page 136 of the record appears a sample of a form which bears the respondent’s logo and the form is titled ‘Equipment movement record/ Gate/Pass’( the/this form). The form shows that when an asset is moved the following is recorded: the date , where the asset is being moved from, its destination , description, serial number, notes/comments, reason for movement, the person who authorized such movement , the person who moved it and who received it and also the security check and the respective dates of each occurrence.

There was also an occurrence record (page 138 of the record). The occurrence record seems to be a record of who was on duty and the time of their entry. It seems to be more of a record of who was on duty. However, the form was supposed to be completed whenever there was movement of assets.

When parties appeared in Court , Mr Tachiona who represented the appellants, strenuously argued that there was no evidence against the two appellants and that they ought to have been charged with lesser offences calling for penalties less that dismissal. Mr Tachiona argued that the two appellants were not directly involved in failure to supervise as the frauds occurred during the weekend when both appellants were off-duty. Further and with respect to the appropriate penalty it was argued that the dismissal penalty ought to be imposed only after corrective and educational measures had been ineffective and that this was in the employment code which binds both the employer and employee. Mr Tachiona submitted that the penalty of dismissal was under the circumstances unwarranted since the infractions did not go to the

root of the employment relationship. The following authorities were relied on in support of the appellants’ case:

Unifreight v Lighton Madembo SC6/18;Zikiti v United Bottlers 1998 (1) ZLR 389(H); Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S); Standard Chartered Bank Zimbabwe v Chapuka SC125/04;

Mr Tonhodzayi who appeared for the respondent started by summarizing the grounds of appeal. He submitted that it appeared that there were five / six grounds of appeal and yet there were only two, namely whether the appellants were properly convicted and whether the penalty was appropriate. I agree. Only those two issues are for determination by this Court.

Mr Tonhodzayi then dispelled the myth that had been created on behalf of the appellants, that is that the fraudulent activities occurred during a weekend and that this was in the absence of the appellants. It was amply demonstrated that ,dates on which the fraudulent activities took place as indicated on the record, were week days. The appellants would therefore have been at work and expected to perform their duties. Mr Tonhodzayi argued that the conduct of the appellants in failing to follow the laid down procedures was a breach of the contract employment. Employees have the duty to safeguard the interests of their employer.

This ,submitted Mr Tonhodzayi, the appellants failed to do. In support of this submission reference was made to Madzima v Marange Resources (Private) Limited (SC12/19).With respect to the appropriate penalty , it was argued that the misconduct went to the root of the contract of employment. It was further argued that the employer took a serious view of the misconduct to the extent that it considered such conduct as repudiation of contract and came to the conclusion that dismissal was the appropriate penalty under the circumstances.

The following authorities were cited in support of the respondent’s case:

Tobacco Sales Floor Ltd v Chimwala1987(2)ZLR 210(S); Standard Chartered Bank Zimbabwe Limited v Michael Chapuka 2005 (1)ZLR 52 at 57C.

In Circle Cement (Pvt) Ltd SC60/03 the Supreme Court held that once an employer had taken a serious view of an act of misconduct which had been committed by an employee to the extent that the employer considered such conduct to be a repudiation of contract which it accepted by dismissing the employee from employment , then the question of a penalty less severe than dismissal being available for consideration would not arise unless it was

established that the employer acted unreasonably in having a serious view of the offence which the employee committed.

In Mashonaland Turf Club v George Mutangadura SC 5/12 the Supreme Court stated that

‘In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the employment contract.’

In Tobacco Sales Floor Ltd v Chimwala 1987 920 ZLR 210 (SC) where an employee was dismissed following a conviction on a charge of conduct inconsistent with the fulfilment of the expressed or implied conditions of service , the Supreme Court held that the dismissal was justified. The learned judge had this to say:

‘The real question is “do these facts amount to misconduct justifying summary

dismissal?”. The value judgment implicit in the assessment of whether misconduct is or is not “inconsistent with the fulfilment of the expressed or implied conditions of his

contract” must inevitably be affected by changing perceptions of social mores. In Halsbury’s Laws of England 4 ed Vol 16 para 642 it is said:

“Misconduct inconsistent with an employee’s proper discharge of the duties for which he was engaged is good cause for his dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.”

That passage is based on a dictum by Lord James of Hereford in Clouston & Co Ltd v Corry [1906] AC 122 at 129 (PC), cited with approval in Laws v London Chronicle (Indicator Newspapers Ltd) Ltd [1959] 2 All ER 285 (CA) at 287H as follows:

“Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be conduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.”

In Standard Chartered Bank Zimbabwe Limited v Michael Chapuka SC125/ 04 the Supreme Court stated that:

‘Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the latter. ‘

It is not disputed that the respondent lost a total 41 air conditioners through fraudsters who have not been identified. The said fraudsters presented false identities to guards who were on duty. The guards were under the supervision of the two appellants. The respondent suffered prejudice in excess of twenty million Zimbabwe dollars which by the time of the disciplinary proceedings had not been recovered. The appellants were not aware of the fraud until some days later when their superiors requested for explanations. It is also not disputed that the appellants moved one (1) air conditioner from Tendeseka Park to another point without following company procedures. In order for the appellants to move any assets they needed authority. There was a directive by one Gambura of the respondent, to the effect that “NO AIR-CONS ARE TO BE MOVED WITHOUT HIS AUTHORISATION”( page 46 of

the record). In view of these undisputed facts each of the appellants was charged with the violation of Section 10.4.14 of the respondent’s employment code as indicated above.

In Alpha Madzima v Marange Resources (Private) Limited SC12/19 the Supreme Court remarked that:

‘By his conduct… appellant abandoned his duty of safeguarding the interests of the respondent.’

I respectfully associate myself with the above remarks. The appellants in the present case abandoned their duty to oversee the movement of their employer’s assets. They failed in their duty to safeguard the interests of their employer. Their conduct is blameworthy . It is inconsistent with what they were employed to do.

During the course of the disciplinary proceedings the first appellant admitted his guilt with respect to moving the one air conditioner without following the set procedure. The 2nd appellant did not admit his guilt but confirmed that he did not follow the laid down procedure when he moved the one air conditioner from Tendeseka Park. As a person in a supervisory

position 2nd appellant denied setting a bad example although it is clear that his conduct was reproachable. One can easily draw an adverse inference that his subordinates could, following his example, also move assets without following laid down procedures and without seeking authority. It goes without saying that the appellants were properly convicted with respect to this air conditioner. The Appeals Authority can therefore not be faulted for confirming that which is right.

The appellants were required by their terms of contracts of employment among other responsibilities, to oversee the performance of site guards and monitor the working environment of the guards. The minutes of the disciplinary proceedings show that they lacked in this aspect. Considering that they only became aware of the fraud some days after the fraudulent activities had been committed , that is adequate proof that their oversight and monitoring role was not adequately performed. Had there been adequate monitoring, the conduct of the errand guards would have been ‘nipped in the bud’ so to speak, or even avoided. There were feeble indications during the course of the disciplinary proceedings that each of the two appellants had suspicions about how the guards were performing their duties but nothing tangible seems to have been done. Their duty was to monitor guards and any suspicious conduct ought to have been properly scrutinized but was not done. This does not help the case against the appellants as it is a clear testimony of lack of diligence in the performance of their duties. What this shows is that their conduct was clearly inconsistent with the expressed or implied terms of their respective contracts of employment. As the authorities referred to above show, such conduct goes to the root of the employment relationship and warrants dismissal.

In view of the foregoing it has been amply demonstrated that the appellants were properly convicted with respect to the disappearance of forty -one air conditioners. It has already been shown that the appellants were guilty with respect to one air conditioner.

Consequently ,there is neither error nor misdirection on the part of the Appeals Authority in its findings with respect to the all the forty -two air conditioners . As such there is no reason to interfere with its decision. Mashonaland Turf Club v Mutangadura (supra).

What this means is that there is no merit in all the grounds of appeal for both appeals .The appeals fail.

Accordingly, it is ordered that:

The appeals be and are hereby dismissed with costs.

NGWERUME ATTORNEYS AT LAW, APPELLANTS’LEGAL PRACTITIONERS.

MUSENDEKWA-MTISI, RESPONDENT’S LEGAL PRACTITIONERS.