Itayi Marufu v Trojan Nickel Mine (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/225/23
HELD AT HARARE 26 JUNE 2023
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO. LC/H/225/23

HELD AT HARARE 26 JUNE 2023				CASE NO. LC/H/291/23

AND 24 JULY 2023

IN THE MATTER BETWEEN:-

ITAYI MARUFU						APPELLANT

AND

TROJAN NICKEL MINE (PVT) LTD				RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant					Mr. F. Madondo

For Respondent				Mr. F. Mahere

MURASI J:

Appellant was employed by the Respondent as its Concentrator Manager. Allegations of misconduct were levelled against him it being alleged that he had wrongfully and unlawfully made personal purchases using the company system without the requisite authority to do so. He was brought before a Disciplinary Committee which found him guilty and recommended his dismissal. An appeal to the Appeals Committee did not meet the desired results as that Committee upheld the decision of the Disciplinary Committee. Appellant has approached this Court for relief.

Appellant’s grounds of appeal are as follows:

The Appeal Authority a quo erred both at law and fact in upholding the Appellant’s dismissal from employment emanating from an inapplicable Employment Code of Conduct.

The Appeal Authority a quo erred both at law and fact to uphold the Disciplinary Authority’s decision to dismiss the Appellant for committing fraud when he was found guilty of violating the company policy/procedure, which was non-existent and also the charge was not an alternative.

The Appeal Authority a quo erred at both law and fact by failing to realise that the Appellant had not been afforded the opportunity to address in mitigation upon being found guilty of charges he was not facing.

The Appeal Authority a quo misdirected itself by upholding the Disciplinary Authority’s failure to realise that further to the non-existence of the company policy/procedure, there had been a long-established practice/convention of buying personal items.

The Appeal Authority a quo misdirected itself both at law and fact to uphold the Disciplinary Authority’s failure to realise that in any event the Appellant had sought relevant authority from the then Cost and material manager (CMM) to buy his vehicle parts.

The Appeal Authority a quo erred at law and fact to uphold the Disciplinary Authority’s failure to observe that at all material times, the Appellant declared that the purchase was a personal one and the role to deduct from his pay was not his and he did not influence the genuine error not to deduct.

Submissions by the Parties

At the commencement of the oral submissions, Mr. Madondo stated that he was abandoning the preliminary point which had been raised in the papers filed of record. He also stated that Appellant was abandoning the first and third grounds of appeal. He submitted that the Appeals Committee was wrong in not paying heed to the fact that the essential elements of the charge of fraud were not canvassed. He formulated the view that that the essential elements of fraud which was criminal in nature, should have been proved in order to return a verdict of guilty. In this regard, Mr. Madondo submitted that Respondent’s Code of Conduct did not define the offence of fraud and thus it was critical for the Appeals Committee to ensure that the evidence adduced proved the charge.

Mr. Madondo also stated that the problem had emanated from the ‘mischaracterisation’ of the charge of fraud by the Respondent. He argued that there was no procedure as regards the procurement of personal items by employees and as such a conviction was not proper and that the person who had given evidence of the policy was wrong. He further submitted that Appellant had not prejudiced the Respondent as he was always willing to pay for the purchases that had been made.

In response, Mr. Mahere stated that the proceedings instituted against the Appellant were civil in nature and the standard of proof is clearly different from criminal proceedings. He further stated that Appellant had not challenged the evidence that was given during the Disciplinary Committee hearing and Appellant had not asserted his rights at that level of the proceedings. Mr. Mahere submitted that Appellant had not followed the procedure as required and had instead dealt with persons who were his subordinates. He argued that the evidence, which was not controverted, clearly showed that the Appellant had circumvented the correct procedure and that some of the money was only recovered after investigations had been instituted against him.

ANALYSIS

A reading of the minutes of the Appeals Committee shows that in the first ground of appeal before that tribunal, the Appellant had distanced himself from the transactions themselves. Documents had to be availed during the hearing to show that Appellant had participated in the transactions. This shows that Appellant has not been candid about the whole transactions. In a different breath, Appellant then alleges that he followed the correct procedure when he had intimated before the Appeals Committee that he had nothing to do with the transactions in the first place.

There is an issue raised by Mr. Madondo as regards the standard of proof which should not detain the Court. I believe that it is elementary knowledge that the standard of proof in civil proceedings is on a balance of probabilities. The suggestion made by Mr. Madondo that Respondent should have raised the bar, so to speak, and proved the matter as in a criminal matter is not the correct position of the law.

In my view, it is pertinent to relate to the evidence given before the Disciplinary Committee. The following is an excerpt from those minutes:

“The complainant mentioned that the issue came from a tip-off, investigations were conducted and it was found that there were 2 purchases done where the accused benefited and both transactions were not in line with the procurement procedure. Costs for one of the transactions were recovered whereas for the other one were not recovered. He went on further to say that the one not recovered was allocated to one of the concentrator department cost centres. He also informed the house that all transactions were not approved by the relevant authorities, the transactions were instead approved by the Cost and Materials Manager (CCM). The complainant was asked whether the above approval was normal and he indicated that it was not normal because the CMM was not the head of department for the concentrator department. He was also asked to explain why he chose to charge the accused with fraud, and he responded by saying that the accused had a financial benefit from the transactions at the expense of the company. The complainant was asked whether the policy allows for the purchasing of personal goods using the company’s procurement system and he said that the system was for the purchase of company goods only and any deviation was supposed to be approved by the accused’s Head of Department (HOD) or the Human Resources Executive as well as the Finance Manager.

The accused was afforded an opportunity to ask any questions to the complainant to which he said he didn’t have any questions. The PO (Presiding Officer) asked the accused whether he acknowledges the amounts in question and he indicated that he was not in dispute with the amounts.”

The stores called to testify representative was also. He had not been informed about the details of the matter and was explain the procedure. He stated that the purchasing of personal goods was not covered by the procurement policy and that ‘such requests should be approved by the Human Resources Execute, the respective HOD and the Finance Manager.’ The stores representative also stated that if such transactions were approved they ‘should be allocated to the individual’s cost centre.’

The above evidence clears several issues. Firstly, it answers Mr. Madondo’s predicament concerning the issue of policy. It was stated that there was no policy as regards the purchase of personal goods. This is understandable. Respondent could not be expected to put a written policy in place for the purchase of personal items by its employees. That is not its core business. Secondly there is an explanation from both the complainant and store representative that where such purchases were to made, approval was to be gotten from the Head of Department, the Human Resources Executive and the Finance Manager. I am of the view that this was obviously for good reasons which I cannot go into. Thirdly, the issue of prejudice was addressed in the evidence. Fourthly, the record shows that Appellant was asked to cross-examine the complainant the evidence and he stated that he did not have any questions. Clearly the evidence was not controverted. It stood as it was.

The remaining grounds of appeal after two had been abandoned, essentially raise the issue that there was no policy as regards the purchases made by the Appellant. It is thus one issue which has been put across in different scenarios. It is my view that these are adequately addressed by the evidence given by the complainant and the stores representative which was not disputed by the Appellant during those proceedings. It is evident that Appellant’s grounds were anchored on the factual findings made by both the Appeals Committee and the Disciplinary Committee. Precedent is awash with cases dealing with the jurisdiction of appellate tribunals when confronted with such appeals. KORSAH JA in Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S) observed as follows at 670 A-G:

“The general rule of law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

GILLESPIE J, in Nyoni vs Secretary for Public Service, Labour and Social Welfare & Another 1997 (2) ZLR 516 (H) weighed in at 528 E-F as follows:

“One is able therefore to state that the irrationality of a decision, is that it has no basis in evidence, is an acceptable ground of review. It will be established not only where there is no evidence upon which the decision can be based, but also where the evidence, although present, was so inadequate that no finding could reasonably be based thereon. Or, put another way, that no person properly applying his mind to the issue could reach such a conclusion.. The mere fact that the reviewing judge might have come to a different conclusion is no ground for interference.”

It is common cause that Appellant caused for procurement orders to be made which were of a personal nature. It is also common cause that Appellant did not follow the procedure which was stated by witnesses in evidence. The complainant gave evidence relating to the apparent prejudice suffered by the Respondent which was not disputed by the Appellant during the proceedings. Can it be said that the Appeals Committee erred in upholding the decision of the Disciplinary Committee in the circumstances? It is my view that a reasonable tribunal, faced with the same evidence, would have arrived at the same conclusion. The appeal is thus devoid of merit and ought to be dismissed.

In the circumstances, the Court makes the following Order:

The appeal, being devoid of merit, is hereby dismissed.

The decision by the Appeals Committee upholding the determination of the Disciplinary Committee is hereby upheld.

Appellant to meet Respondent’s costs.

Rufu-Makoni Legal Practitioners-		Appellant’s legal practitioners

Gill, Godlonton & Gerrans-			Respondent’s legal practitioners.