Freeman K Chikonzo v ZETDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/709/13
HELD AT HARARE 13TH MARCH 2013
CASE NO LC/H/310/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/709/13

HELD AT HARARE 13TH MARCH 2013 	                  CASE NO LC/H/310/11

In the matter between:-

FREEMAN K CHIKONZO				Appellant

And

ZETDC						Respondent

Before The Honourable B.T. Chivizhe, Judge

For Appellant		Mr M Kamdefwere (Legal Practitioner)

For Respondent	            Mr V Muza (Legal Practitioner)

CHIVIZHE, J.

The Appellant appeals against his conviction by Respondent’s Disciplinary Committee on count 1.2 under the relevant Code of Conduct.  In particular Appellant was found guilty of contravening section 7 subsection (1) (b) (i) of the Employment Code of Conduct and Grievance Handling Procedure unsatisfactory work performance, that is to say being careless, negligent, insufficient or incompetence in the performance of duties.

The material background facts to the matter are as follows;

The Appellant is employed by the Respondent as its Senior Manager I.T.  He was suspended on the 10th of September 2010.  Notification of the charges and the date of hearing were served on 2 February, 2011.  On the 23rd of February 2011, the Applicant was arraigned before the Disciplinary Committee to answer to six counts.  The Disciplinary Committee however only returned a conviction in respect of the one count referred to supra.  Appellant was then sentenced to a reduction of salary and allowances by 10% for a period of six months.  The Applicant has according to papers in the record already served the sentence.  He has however noted the present appeal against conviction only on the one count referred to supra.

The appeal has been noted on the four lengthy grounds;

There are however in my view two issues for determination before this court

The issue are as follows;

whether the hearing was conducted in terms of the provisions of the Code of Conduct.

whether the Disciplinary Committee properly found the Applicant guilty on count 1.2

1 shall address the issues seriatim

The Appellant in his appeal raised a procedural irregularity.  It was the Appellant’s contention that the Respondent committed a procedural irregularity by not conducting the disciplinary hearing within the prescribed seven days.  It was Applicant’s further contention that he had been placed on ‘mandatory leave’ pending investigation where the Code of conduct clearly does not allow for the same.  On the basis of this clear breach of the Code the Appellant was asking the Court to render the disciplinary proceedings as invalid.   Both conviction and sentence should then consequently be set aside.

The Respondent in its opposition papers submitted that the disciplinary hearing was conducted within the time frames as set out in the Code of Conduct.  Part 1VSection 13 (2) (b) as read together with section 14 (1) of the Code of Conduct provides that a hearing has to be conducted within seven working days.  It was Respondent’s position that the period could not be calculated from the date the Applicant was placed on mandatory leave with full salary pay or benefits.  Instead it ought to be calculated from the time charges were preferred against Appellant to the finalisation of the hearing.  The period did not exceed the seven day period.  On the issue of mandatory leave it was Respondent’s position that it was an administrative decision meant to facilitate task force operations and was not prejudiced prejudicial to the Respondent.

It is clear from a perusal of the Code of Conduct there is no provision for mandatory leave pending disciplinary hearing.  The disciplinary hearing also has to be conducted within seven days.  The Court was aptly referred to Part IV section 13 (2) (b) as read with section 14 (1 of the Code of Conduct.  However evidence placed before the Court in Exhibit ‘A’ clearly shows the Appellant was placed on mandatory leave as from 15 November 2010.  The purpose according to letter (Exhibit ‘A’) was for administrative purposes following certain reports concerning the performance of Applicant division.  The letter further stated that a task force had been put in place to freely consider the consultant’s report in Appellant’s absence. The mandatory leave was meant to facilitate investigation of the allegations/reports.  The disciplinary hearing was then convened on 23rd February 2011.  The question that arises is whether there was indeed a procedural irregularity and if the procedural irregularity was sufficient to vitiate the disciplinary proceedings.  It is trite for a procedural irregularity to vitiate proceedings the party raising it must establish prejudice.  See for an example TichawonaNyahuma v Barclays Bank SC 67/05.

I am satisfied upon perusal of the record the Respondent did indeed violate provisions of its own Code by firstly placing Applicant on mandatory leave which is not provided for under Code of Conduct.  The Appellant hashowever failed to allege any prejudice suffered as a result.  The record shows he was placed on mandatory leave with full pay and benefits.  As at that stage he had not been charged with any act of misconduct.  The mandatory leave cannot beequated to a suspension as suggested by the Applicant.  The two concepts of mandatory leave and suspension and the consequences that flow from them are after all separate and different.  See StanwellChodokufavs. The National Employment Council for the Catering Industry HH67/02.  The letter inviting him to a hearing dated 2 November 2011 is the one that actually laid charges against him.  Section 14 (i) of the Code required that the disciplinary hearing be convened within 7 working days of receipt of report of an alleged misconduct. It is clear that the hearing ought to have been convened within seven days of receipt of the letter 2 November 2011.  It is common cause the disciplinary hearing was only convened on 23 February 2011 a period of three months delay.  The period of delay was however in my view a short period.  No prejudice was alleged and established by the Appellant.   For these reasons I would dismiss the technical arguments raised by the Appellant.

On the merits of the matter the charge that the Appellant was convicted of is the charge of contravening Section (7) subsection (1) (b) (1) of the Employment Code of Conduct and Grievance Handling Procedure that is to say, being careless, negligent, inefficient or incompetent in the performance of duties.  The specific allegation under the Count 1.2 was thatthe Appellant negligently and carelesslyallowed multiple users to access the Harare Batch which is a very powerful username capable of making system changes.  Measures were supposed to be put in place for users to be accountable for their action in the system through effective password management system.

The Applicant’s submission before the Labour Court is that no proof of negligence was established by the Respondent Disciplinary Committee.  He also submitted that he had taken diligent steps to address what were essentially weaknesses in the system including charging his subordinates with negligence.

The Respondent’s position is that evidence was adduced to show that Appellant given his position, acted recklessly in manning a powerful profile resulting in Respondent losing millions of dollars.  Evidence had also been led, which was uncontroverted, to show that multiple users were allowed to access the Harare Batch.  The Respondent dismissed the argument by the Appellant that the Disciplinary Committee did not consider the system and the Computer Procedures Manual which basically provides that each user is responsible for the securing of his or her password.  The Respondent’s position was that the Appellant’s department was directly responsible for the securing of the profile.  The fact that the system had become open to abuse pointed to recklessness and carelessness on the part of Appellant in his capacity as Senior Manager I.T.

I am satisfied upon a consideration of the facts and evidencein the record of proceedings that the Appellant was correctly found guilty on the charge.  The record clearly shows that the Disciplinary Committee established that Appellant failed to manage his department resulting in 13 users gaining access to the system using one password.  This resulted in lack of an audit trail.  Appellant in his submissions allege that without the Respondent indicating the particular 13 users the charge should not stand.  It is in my view sufficient that the Respondent established that through his negligence the Appellant had failed to secure the Harare/Bulawayo Batch resulting in the Respondent losing over 2 million USD.  The Appellant himself acknowledged the responsibility of his department resulting in him levelling charges against his subordinate, the Chief Systems Analyst – commercial.  That action however in my view did not exonerate him as the overall in charge – the Supervisor IT.  At the end of the day he had the overall responsibility for securing of the Harare/Bulawayo batch.  The buck simply stopped with him.

On the basis of the facts and evidence in the record the Appellant was properly convicted on the charge.    The penalty imposed of 10% reduction of his salary over six months was actually on the lenient side, given the aggravatory features of this case such as that the Respondent lost over 2 million US Dollars in the process.

The appeal is consequently dismissed with no order as to costs.

MuringiKamdefwere Attorneys, Appellant’s Legal Practitioners

Muza&Nyapadi, Respondent’s Legal Practitioners