Jefta Mudare v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/414/14
HELD AT HARARE 9TH JUNE 2014
CASE NO
JUDGMENT NO LC/H/414/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/414/14

HELD AT HARARE 9TH JUNE 2014		        CASE NO LC/H/10/14

& 4TH JULY 2014

In the matter between:-

JEFTA MUDARE						Appellant

And

ZIMBABWE REVENUE AUTHORITY			Respondent

Before The Honourable E Muchawa, Judge

For Appellant		L Ngwarati (Trade Unionist)

For Respondent		K Renzva (Legal Officer)

MUCHAWA, J:

This is an appeal against the decision of respondent’s Appeals Committee which found appellant guilty of gross negligence in the performance of his duties and dismissed him from employment.

Appellant was employed by the respondent as a revenue officer and was stationed at Nyamapanda Border Post.  On  16 December 2012 the appellant was assigned duties in the motor traffic section at the search bay.  He was working with three other officers and his duties included receiving duly processed export documents from the Commercial Office and the carrying out searches/physical examinations of consignments being exported and the vehicles exporting the consignment.

It is common cause that on that date of 16 December 2012, appellant endorsed in the outgoing motor traffic register that a truck with horse registration number ACE 4023 and trailer registration numbers ACE 1948 had exited Zimbabwe.  His endorsement further stated that the truck was carrying a consignment of bed sheets cleared under bill of entry R1929 of December 2012 which belonged to Waverly Blankets.

It was later established that in fact no such export had been made by Waverly.  Only export documentation had been submitted at Nyamapanda.  It was alleged that there had been collusion with ZIMRA officers to have “the export” acquitted thereby creating the impression of an export having occurred.

The effect of appellant’s endorsement was that the agent’s bond which had guaranteed the export in the sum of US$75 481.64 and had been debited with that amount when Waverly imported some blankets from South Africa pending exit of the goods, now had the whole amount credited back into the account of the agent.

It is common cause too that when appellant made the endorsement in the register he had not seen the truck or consignment.  It turned out that the motor vehicle registration details entered by appellant in fact belonged to two Toyota Hiace minibuses based in Harare which were never present at Nyamapanda on the day in question.

It is agreed that appellant’s actions prejudiced the state of revenue to the tune of US$75 481.64.

Appellant explains his actions as having been occasioned by the pressure of work on the day in question and that he had trusted a senior colleague, a Mr Mukuze who had asked him to assist his friend from Waverly.  His endorsements were therefore based on the trust he reposed in his colleague to have done the physical examination on his behalf. In the circumstances, appellant believes he was wrongly convicted and that his dismissal verdict was improper.

Lengthy grounds of appeal totalling seven have been filed.  I believe the issues arising for my determination, from these can be summarised into the following;

Whether or not there was a relationship between ZIMRA Nyamapanda and Waverly and how that should have affected appellant’s execution of duties.

Whether appellant proved that the workload was too heavy on the day in question so as to justify his actions.

Was appellant properly charged and found guilty of gross negligence in the circumstances particularly as he operated on the basis of trust of a colleague.

Propriety of the penalty.

I deal with these issues hereunder.

Relationship between ZIMRA Nyamapanda and Waverly and its effect

Appellant submits that there was a relationship between ZIMRA Nyamapanda and Waverly Blankets (Pvt) Ltd.  ZIMRA Nyamapanda is said to have ordered around forty blankets from Waverly around the same time. Resultantly appellant alleges that trust was developing and therefore appellant did not suspect any mischief on the part of Waverly and Mr Mukuze was the one who was dealing with Waverly on the blankets issue.

Respondent submits that there was no relationship of trust between ZIMRA and Waverly that appellant could rely on to abdicate his duties.  The only relationship is said to be that of tax payer and tax collector.  It is clarified that only individual ZIMRA workers through the canteen committee at Nyamapanda bought blankets using canteen profits, from Waverly. The resultant relationship was therefore that of buyer and seller and nothing else.  Such a relationship, even if it existed between ZIMRA and Waverly would not have created a relationship of trust entitling Waverly to purport to import or export goods unchecked or for ZIMRA employees not to follow laid down procedures.

I do find that appellant has not established that a relationship of trust did exist between ZIMRA Nyamapanda and Waverly.  Only a relationship between individual staff members and Waverly has been established.

I find too that even if a relationship had been established between ZIMRA and Waverly, it would not help appellant’s case.  Appellant would still be expected to carry out his duties as laid down by ZIMRA.

I consequently find no merit in ground of appeal 5 and dismiss it.

Was the workload too heavy so as to justify appellant’s actions?

Appellant submits that Nyamapanda is a busy border post especially during the festive season as on this day.  He claims that his duties, together with three other officer’s included;

Searching an average of 70 exiting trucks

Searching an average of 70 incoming trucks

Searching an average of 10 outgoing private vehicles

Searching an average of 12 incoming private vehicles

Searching an average of 5 outgoing buses

Searching an average of 7 incoming buses

Searching private individuals exiting the country.

Searching private individuals entering the country.

Scanning of baggage

Registering incoming trucks in the outgoing register

Registering outgoing trucks in the incoming register.

Inputting inspection acts in the computer at the commercial office for incoming trucks in the incoming physical examination register.

The above duties are said to run concurrently.  Appellant argues that a

complaint on the pressure of work had been registered in one of the monthly meetings but not on this particular day.  It was argued too that the fact that quick searches were conducted instead of a hundred percent physical examination, pointed to how busy the post was.

Respondent through appellant’s supervisor, classified Nyamapanda as moderately busy and disputed the truck numbers provided, giving these as 50 outgoing and 50 incoming.  Further it was stated that three officers are usually posted in this area but on this day there were four posted.  The fact that no report was made to the supervisor of the need for extra staff is said to point to the lack of pressure.  A point was made that appellant, in his first report did not raise pressure of work as an excuse for his conduct.  It was only about two and a half weeks later that the conduct was explained away on account of pressure of work.  This is said to be an afterthought  and not true.

I was pointed to the fact that after the endorsement in question, appellant had not made any other endorsement and that he has not explained what it was he was rushing to do.

In the light of the above submissions I do not think the conclusion of the Appeals Committee can be impugned especially as appellant did not even conduct a quick search.  Consequently there is no merit in ground of appeal 3 which I dismiss.

Was appellant properly charged and found guilty of gross negligence

Appellant argues that he should not have been charged of gross negligence but rather of a failure to follow laid down procedures which is a less serious offence.

It is submitted too that though appellant was negligent, he was not grossly negligent as his actions were not deliberate or malicious.  He claims to have trusted a colleague and in so doing, it is argued that he conducted himself as any reasonable person would, regard being had to the fact that the colleague Mr Mukize was a more experienced officer and was of a higher grade.  Appellant blames respondent for not availing enough manpower.  Further it is argued that the client has promised to make good the loss.

On the other hand respondent argues that it is his prerogative as an employer to decide on the charge to prefer against an employee.  In this case respondent says that the charge preferred was influenced by the dire consequences of failure to follow procedures which resulted in revenue loss of more than $75 000.  The failure to follow procedures is said to have been occasioned by negligence which was gross hence the charge preferred.

It is further argued that appellant’s admission to negligence fits the definition of gross negligence as set out in Zeeta Manufacturers (Pvt) Ltd v Zimbabwe United Freight Company Ltd  1990 (1) ZLR 337 (H) at 340 wherein CHIDYAUSIKU J, as he then was, quotes with approval from Rosenthal v Marks 1944 TPD 172 at 180

“Gross negligence (culpa lata, crassa) connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty.”

Further I was referred to Bickle v Joint Ministers of Law and Order 1980

(2) 5A 764 (R) wherein the above Rosenthal v Marks supra definition was qualified to say

“in certain circumstances, such as the case before him, the element of mens rea is absent and an objective test in such cases must be applied.  When an objective test is applied, gross negligence is no more than ordinary negligence of an aggravated nature.”

In Clan Transport Co (Pvt) Ltd v Mhishi 1991 (2) ZLR 333 9SC) KORSAH JA

said gross negligence must be construed as something other than wilful, it is ordinary negligence of an aggravated form which falls short of wilfulness.

Appellant who was aware of the standing instruction to conduct physical examinations of all export consignments and its rationale, did not conduct any such examination.  Respondent argues that this was a gross dereliction of duties and in so acting he had no regard to the consequences of his actions.

Appellant’s conduct was likened to that of Chipiningu in the matter of Standard Chartered Bank of Zimbabwe Ltd v Chipiningu SC 104/2002.  Chipiningu had the responsibility of controlling treasury cash jointly with the deputy operations manager through custody of a set of keys each to access the cash.  There was a standing instruction that each of them was to be present when treasury was opened.  Chipiningu, acting on trust had not been present but handed over his set of keys to the deputy operations manager who stole cash from treasury and disappeared.  The teller was charged with gross negligence and found guilty for the total disregard of his duty.  It has held further that Chipiningu had acted grossly negligently and he should not have discharged his own duty through the branch operations manager.  Regarding the trust he had reposed in the branch operations manager, it was held that it did not detract from the fact that it constituted an entire failure of duty or a total disregard of duty by him.

In casu I find that appellant, by failing to follow a clearly laid down procedure of conducting a physical examination, even a quick one at that, had acted grossly negligently.  He is guilty of a total disregard of his own duty.  He should not have discharged his duty through another.  Even though I find that appellant was not wilful in his conduct, he was still grossly negligent.  As for acting on the basis of trust, I find that, that does not help appellant.  That does not detract from the fact that his actions constituted an entire failure of duty on his part.

In the circumstances I find that respondent properly exercised its discretion as the employer, of charging appellant of gross negligence and he was properly found guilty of the same.  There is therefore no merit in grounds 1 and 2 of the appeal which I dismiss.

Property of the penalty

Appellant argues that the penalty of dismissal was too excessive in the circumstances regard being had to appellant’s clean disciplinary record and the principle in the Code of Conduct to start off with educational and corrective measures before dismissal.

In addition it is argued that there was a system failure which facilitated appellant’s conduct which includes shortage of staff and the need for risk profiling.

It is further argued that a DGC Committee member, during deliberations on penalty raised the issue of prevalence of such cases as an aggravating factor.  This is said to be improper as such was nothing short of hearsay evidence.

Respondent argues that the penalty imposed is appropriate in the circumstances as the aggravating factors far outweighed the mitigating factors.  Reference was made to the extent of the prejudice suffered by respondent and that appellant’s misconduct went to the very root of the employment relationship.  A category D offence that appellant was found guilty of is said to attract the penalty of dismissal.

It was also submitted that the committee did not find that the offence was committed as a result of system failure.  Instead the committee simply made recommendations for better monitoring in its work by supervisors.

The verdict is said to have been based on the factual findings of the Committee and not on hearsay evidence.  The penalty was based on the majority position.  The offence of false acquittals was said to be indeed prevalent within ZIMRA and the committee member is said to have been right in making the observation as and when he did.

I was referred to the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha

S -6 – 02 where it was held that once an employer has taken a serious view of a misconduct committed by an employee to the extent that it considers it to be a repudiation of contract which it accepts by dismissing her from employment, then the question of a penalty less severe than dismissal being available for consideration will not arise.

I cannot fault the committee for taking into account the prevalence of the misconduct when and in the manner it did.  I find too that the committee correctly considered the aggravating and mitigating circumstances and correctly found that dismissal was appropriate.  My hands are tied as the employer’s discretion on sentencing cannot be lightly interfered with as they have taken a serious view of appellant’s conduct.

I therefore find no merit in grounds 4, 6 and 7 and dismiss them.

I therefore order as follows:

The appeal being devoid of merit in its entirety is dismissed with costs.