Favco (Pvt) Ltd v Godwin Mushori

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/282/16
HELD AT HARARE 24 FEBRUARY 2016
CASE
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IN THE LABOUR COURT OF ZIMBABWE			       JUDGMENT NO LC/H/282/16

HELD HAT HARARE 24 FEBRUARY 2016				CASE NO LC/H/401/15

& 13 MAY 2016

In the matter between:

FAVCO (PVT) LTD				Appellant

And

GODWIN MUSHORI				Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr A K Maguchu (Legal Practitioner)

For Respondent		Mr T Marume (Legal Practitioner)

MURASI, J:

This is a clear case in which the arbitral award cannot be allowed to stand.

Respondent was employed by appellant as head of department.  Following allegations of misconduct, respondent was brought before a Disciplinary Authority which found him guilty and recommended his dismissal.  An appeal to the Appeals Officer did not yield the desired results.  Respondent approached the labour officer and the matter was subsequently referred to arbitration.  The arbitrator found in favour of the respondent and the appellant has appealed to this court.

Appellant’s grounds of appeal may be summarised as follows:

That the arbitrator failed to find that a lawful instruction had been given to the respondent

That the arbitrator had failed to find that the respondent had failed comply with the lawful instruction

That the arbitrator had failed to find that by failing to competently supervise his staff, the respondent was guilty of gross incompetence and inefficiency.

Both parties filed detailed and voluminous heads of argument.  The court is indebted

to the depth of research by both parties.

In order to determine the appeal, a look at the arbitrator’s decision is critical.  The critical issue which the arbitrator was supposed to make a determination was whether a lawful instruction had been given to the respondent.  The facts on the record show that an email was sent to respondent on 3 January 2014.  The email contained instructions addressed to the respondent.  Among the instructions were those that respondent was to prefer specific charges to two of his subordinates.  Another email dated 13 January 2014 was forwarded to the respondent referring to the email of 3 January 2014 and further discussions.   The email of 13 January 2014 lamented the lack of action by the respondent.  Another email was forwarded to the respondent on 22 January 2014 where the respondent’s supervisor informed the respondent that his instructions were clear and was of the view that they should have been implemented.  Respondent only responded to all these emails on 22 January 2014 and referred to a discussion with the Human Resources Manager.  He did not allege that the implementation was impossible.  He had been told to call the subordinates from leave and proceed to charge them.  He had not done so.  In my view, this was a lawful instruction.  The arbitrator makes the following finding:

“I accept the claimant’s contention that the misconduct was not proved and the respondent only requested remorse from the claimant which cannot be a basis for dismissal at law.  The claimant was not informed of his short comings.”

In his regard the arbitrator erred.  As pointed out earlier, the arbitrator was supposed to find whether a lawful instruction had been given.  The second rung of the enquiry would then have been whether the respondent had a lawful excuse for not complying with the lawful instruction.  The evidence does not support the arbitrator’s assertions.  The decision of the Disciplinary Authority is as follows as regards respondent’s behaviour in respect of the instruction:

“The accused, in defence, explained that the instructions were not clear.  Further, the accused also insisted that there is no evidence or proof of wilfulness to disobey the order and proceeded to give examples and definition “wilful disobedience.”  While this assertion is a point in defence, it is my considered view that the contents of the email dated 3 January 2014 are simple and clear.  In the event that the instruction, or any part thereof 3 January 2014 was unclear or appeared difficult to execute, it remained the responsibility of the accused to immediately seek clarity from his superior and therefore demonstrate willingness to execute the instruction.  Further, the trail of communication submitted at the hearing shows that accused was reminded a few times by his superior to follow the instructions but he did not raise any challenges with the communication

… The facts at hand are that the instructions were given and facts submitted clearly show that they were not followed.”

The Appeals Officer had this to say:

“In every business transactions and communication, emails are now universally considered a worthwhile business communication tool.  There is therefore no doubt that the emails constituted a lawful instruction.

… Reminders were sent and the accused should have, under the changing tone of the emails sought clarification and/or audience with his supervisor.  I therefore, perceive an element of wilful disobedience howsoever caused.”

The arbitrator does not make reference to this finding by the Appeals Officer and does not refer to the decision of the Disciplinary Authority on this important issue.  It was critical that the arbitrator should find whether a lawful instruction given had been disobeyed.

The next issue to be considered is whether the respondent advances any lawful excuse for non-compliance.  A reading of the record does not show any lawful excuse being advanced by the respondent.  It was pointed out that one or two of the subordinates had proceeded on leave.  The instruction had been that those on leave should be recalled and this the respondent had not done.  There was an explanation that one had two days’ leave left.  Even if this was correct, up until 22 January 2014 no action had been taken by respondent on the subordinates.  I am of the view that respondent did not show that there was a lawful excuse in not complying with the lawful instruction.

As regards the second charge, the Disciplinary Authority had this to say:

“However, it is clear that the accused is indeed the manager responsible for the  personnel in the department, including the roving salesmen.  Further, when questioned even by his own defiance lawyer on who is responsible for setting up systems in the department, the accused distanced himself from any meaningful responsibility towards ensuring good record-keeping is done by the roving salesmen.  This appears to be total abdication by the accused preferring to argue that the “Favco team” is responsible for setting up systems of records and reconciliation of sales.

… The total lack of appreciation of taking responsibility in having proper systems as demonstrated by the accused leaves one wondering what the accused can say he was employed to manage.”

The arbitrator makes the following finding in this regard:

“I have taken consideration (of) the fact that the claimant worked for 22 years using the same system and the complainant had just joined the respondent.  Instead of coming up with a new system and taking responsibility over the failing system, the respondent is now witch-hunting and turning the claimant into a sacrificial lamb.  On a balance of probabilities which arise in this case, there is insufficient evidence on which the respondent could justifiably be allowed to dismiss the claimant for disobedience, incompetence and inefficiency.”

It is clear that the arbitrator does not address the issue placed before him. The issue was whether his supervision in the department was so lax that the appellant was exposed to the losses that were occurring.  Put differently, the people who worked under respondent were causing losses to appellant and it was respondent’s duty to supervise them and ensure that this did not happen.  The question was whether respondent was guilty of such gross inefficiency.  It is not in dispute that respondent’s subordinates were operating their accounts as a credit facility without authorisation.  This is clear from the hearings that are part of the record.  It is also clear that the names of the creditors listed by the subordinates could not be authenticated.  These subordinates fell under the supervision of the respondent.  For the arbitrator to allege that this was a “witch hunt” was incorrect to say the least.  It was a charge that was supported by the evidence.  In my view, the evidence clearly showed respondent’s managerial short comings. To say that appellant should have come up with a new system  is to disregard the fact that the respondent had not performed his duties with the efficiency required of him and as a consequence caused substantial losses to the appellant.

The arbitrator seemed to cling to the statement by the Appeals Officer that he could have considered a final warning.  The arbitrator gave this as a reason that appellant was seeking remorse from the respondent.  With respect, I do not see where the Appeals Officer stated that respondent was not remorseful.  The Appeals Officer states that respondent had failed to appreciate his role and responsibility over the subordinates and that did not give him any option but to uphold the decision of the Disciplinary Authority of dismissing the respondent.  The arbitrator does not give any reason as to why he found the decision to be irrational or outrageous.  It is trite that an employer has the discretion to impose a penalty on an employee and an appellate court can only overturn such a discretion where there is evidence of a gross misdirection.  It is trite that the question to be asked is whether a reasonable employer would have reasonably dismissed the respondent in the circumstances.  If a reasonable employer would have reasonably dismissed the respondent, then the dismissal was justified.  In casu, the respondent was charged with two counts, one of wilful disobedience to a lawful instruction and the second one of incompetence.  Having found the respondent guilty on both counts, was the appellant entitled to dismiss the respondent?  In my view, the appellant was entitled to act in the manner it did.  There is no evidence of irrationality in the exercise of the discretion.  In Country Fair Foods (Pty) v CCMA & Ors (1999) 20 ILJ 1701 (LAC) it was held as follows:

“It remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the sanction with which non-compliance will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.”

In casu, the record shows that respondent was guilty of the misconduct in that he clearly appreciated the nature of the instruction and continued to act wrongfully or omitting to act with a reckless indifference as to what the results may be.

In conclusion, the court is of the considered view that the arbitrator disregarded  the facts that were placed before him and made a wrong decision as a result.  The order given by the arbitrator cannot be allowed to stand.

The court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of Honourable Dangarembizi be and is hereby set aside.

The decision of the Disciplinary Authority finding the respondent guilty culminating in his dismissal be and is hereby upheld.

That each party bears its own costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners