Joseph Chiroodza v TelOne (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/287/14
HELD AT HARARE ON 20 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/287/14

HELD AT HARARE ON 20  MARCH 2014		CASE NO LC/H/757/13

& 23RD  MAY 2014

In the matter between:-

JOSEPH CHIROODZA					Appellant

And

TELONE (PVT) LTD						Respondent

Before The Honourable R.F. Manyangadze, Judge

Appellant			In person

For Respondent		J Dondo (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the National Hearing Committee of the National Employment Council for the Communications and Allied Services Industry (Appeals Committee) which upheld the dismissal of the appellant from employment.  The appellant was dismissed from employment by the respondent’s Regional Hearing Committee (Disciplinary Committee) after it found him guilty of misconduct in terms of the communications industry’s Code of Conduct.

The factual background to the matter is largely common cause.  At the material time, appellant was employed by the respondent as the Acting Chief Telcoms Technician (CTT).  He had been working in this capacity from January 2012 to August 2013, when he was dismissed from employment.

One of the appellant’s subordinates, Mr Ackim Nyanhongo, did not report for duty after the expiry of his authorised leave, in April 2013.  It was not until sometime in July 2013 that appellant notified his superiors about Mr Nyanhongo’s absence.  Appellant advised management that Mr Nyanhongo had been absent from duty since 10 July 2013, when Mr Nyanhongo was infact absent from duty since April 2013.  During the period he was not at work, Mr Nyanhongo continued to earn his salary.  Up to the time of appellant’s dismissal, the money paid to Mr Nyanhongo in salary and benefits when he was on unauthorised leave had not been recovered.

The Disciplinary Committee found the appellant guilty of misconduct, and dismissed him from employment on 9 August 2013.

The Appeals Committee, on 3 September 2013, upheld the dismissal of the appellant after finding him guilty of category 3 (7), category 3 (8), and category 4 (4) offences in terms of the NEC Code of Conduct.  These offences are framed as:

Category 3 (7):  Loss or damage of company money or property respectively through negligence.

Category 3 (8):  Unbecoming or objectionable behaviour,  that is to say, withholding information that is pertinent to the discharge of another member’s duties

Category 4 (3):  Gross unsatisfactory work performance/incompetence.

Having exhausted all the domestic remedies available, appellant appealed to this court.  His grounds of appeal are stated as follows:

“The National Hearing Committee erred in accepting that appellant was negligent resulting in loss or damage of company money or property.  On the contrary the Records and Administration Clerk is the one who was negligent in this matter.

The National Hearing Committee erred in accepting that appellant is guilty of Category 3 (8) (iv) misconduct of the Communication and Allied Services Employment Code of Conduct as appellant immediately raised the issue of Ackim Nyanhongo’s absenteeism with the Operations Manager after becoming aware of it.

The National Hearing Committee also erred in accepting the Hearing Committee’s guilty verdict of gross unsatisfactory work performance or incompetence on the part of appellant.  On the contrary, the Records & Administration Clerk is the one who was incompetent in that he failed to update his records manually and to advise appellant about any anomalies concerning such records.”

Ad Penalty

The penalty of dismissal was not appropriate in appellant’s case regard being had to the cumulative effect of the mitigatory features.

I must, from the outset, dispose of a point that has been raised by the

Respondent, which is in the nature of a point in limine.  It is that the appeal does not raise a point of law, and is therefore not properly before the Court.  Although respondent did not expressly state that it is raising this as a point in limine, the issue raised has the character of a point in limine.  If upheld, it has the effect of dismissing the appeal.

The applicable law on this issue is expressed in section 98 (10) of the Labour Act [Chapter 28:01] (The Act).  This section provides:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

(underlining added)

This provision, read in the context of the whole of section 98, and other sections therein referred to, such as 89 and 93, is making reference to compulsory arbitration.  It is in connection with a decision arising from compulsory arbitration that an appeal is confined to a question of law.  The Act, it seems to me, does not place a similar limitation on appeals from decisions of NEC boards or other adjudicating tribunals constituted under applicable employment codes.

In view of this, I am unable to uphold respondent’s averment that the appeal is not properly before the court, by reason of it not being on a question of law.

Another issue that deserves immediate attention is one that has been raised by the appellant.  Appellant, at the hearing of the matter, drew the court’s attention to the fact that he was once arrested, and subsequently acquitted at Mbare Magistrates’ Court on fraud charges relating to this matter.

It was correctly submitted on behalf of the respondent, that the said acquittal has no bearing on the present proceedings.  Subsequent to any criminal proceedings that may have been held, the employer has a prerogative to institute disciplinary proceedings.

It is now necessary to consider the merits of appellant’s appeal.  A look at his grounds of appeal shows that he is essentially challenging the factual findings of the Appeals Committee, which in turn had considered the factual findings of the Disciplinary Committee.

The legal position is quite clear on this matter.  An appeal court has very little room within which to interfere with the factual findings of a lower tribunal.  Such interference is only warranted where the factual findings of the lower court are seen to be grossly unreasonable.  It is not simply a matter of the appeal court holding a different opinion.

I must now consider whether, in respect of each ground of appeal, there is a basis on which to upset the findings of the Appeals Committee.

In ground 1, appellant asserts that he was not negligent.  He shifts the blame on one of his subordinates, the Records and Administration Clerk.  In this regard, the Appeals Committee observed that appellant;

“failed to discharge his duties and now he was conveniently seeking to

apportion blame to everyone else but himself … it was shocking that the appellant did not want to be held accountable at all since he was now claiming to have acted diligently although the position was not supported by facts.”

The record of the disciplinary hearing shows that appellant took over the duties of Records and Administration Clerk.  The complainant, Mr Chaukura pointed out;

“initially I was blaming the Clerk but the Clerk said he last performed his duties in November 2012 after he was told by the acting CTT that he had taken over those duties and was doing record keeping electronically from his office.”

Appellant did not refute the allegation that he took such a move.  There is no basis on which appellant can impute negligence to his clerk, when he took over the record keeping duties from the clerk.

The record of proceedings further reflects:

“Chairman: Mr Chiroodza, do you agree that you did not perform your duty properly by not checking attendance on your staff.

Chiroodza: Yes, I agree”

Faced with such facts, the Appeals Committee cannot be faulted in finding appellant guilty of negligent performance of duty.

In ground 2, appellant avers that he did not withhold information on Mr Nyanhongo’s unauthorised absence. The official records, it is not disputed, show that Mr Nyanhongo was last on duty on 12 April 2012. Appellant claimed he placed Mr Nyanhongo on extended leave from 15 April to 26 April 2012, though this was not documented. Appellant only wrote to Human Resources on 15 July 2013 advising that Mr Nyanhongo was supposed to have reported for duty on 10 July 2013.

Appellant had no reasonable explanation, or any explanation at all, why he wrongly advised management  that Mr Nyanhongo was supposed to resume duty on 10 July 2013, when he well knew that the employee was supposed to resume duty in April 2013.

Again, the Appeals Committee cannot be faulted in finding that appellant “tried to cover up his shortcomings when the matter came to light.”

In ground 3, appellant denies the allegation of gross unsatisfactory work performance or incompetence, shifting the blame on the Records and Administration Clerk.  The remarks made in relation to ground 1 are equally applicable here.

Ground 4 deals with the question of penalty.   Appellant contends that dismissal was not appropriate having regard to the mitigatory factors in this case.  The mitigatory factors include the fact that he is a first offender, and that he has served the company for a long time.

The firmly established principle of not lightly interfering with a lower tribunal’s factual findings, applies as much to the question of penalty as it does to conviction.

In ZB Financial Holdings v Maureen Manyarara SC 3/12, MALABA DCJ had this to say:

“The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by an employer and that it could not interfere with the decision to dismiss without a finding of misdirection on the part of the employer.  The reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.”

In casu, the Appeals Committee was of the view that:

“aggravation was more compelling since the matter only came to light after an anonymous tip-off and the appellant rushed to try and cover up his misdeeds. In addition there was a substantial financial loss to the organisation due to his omissions.”

It is clear the misconduct was viewed seriously.  What particularly irked the employer was the supply of false information, to the effect that Mr Nyanhongo reported for work on 10 July 2013, when he had last reported for work in April, some 3 months earlier.  All this time the errant employee was earning his salary and benefits.  This was not timeously disclosed by appellant, who had supervisory authority over the absent employee .  Instead, appellant sought to conceal the omission, to the company’s prejudice.

The misconduct cannot be regarded as “so trivial, so inadvertent, so aberrant or otherwise so excusable” as appellant submitted in his Heads of Argument.  These words are from the case of Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210.

The full passage, per McNALLY JA, reads:

“I consider that the seriousness of the misconduct is to be measured by whether it is  “inconsistent with the fulfilment of the express or implied conditions of his contact.”  If it is, then it is serious enough prime facie

to warrant dismissal.  Then it is up to the employee to show that his misconduct though technically inconsistent with the fulfilment of the conditions of his contract, was to trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

After considering the facts of the matter, the learned judge of appeal then went on to state:

“The misconduct was not trivial.  It was not inadvertent, but deliberate and wilful.  It involved deception of his employers.  It involved the making of a profit for which he should have accounted to the growers.  It involved a knowing breach of the law governing the business in which he was involved.”

In the instant case, the respondent was riled by the appellant’s deception, which reduced the subordinate’s unauthorised absence substantially, from a period of about 3 months to just one week.  The deception was intended to cover up appellant’s grossly unsatisfactory or incompetent handling of his subordinate’s attendance record.  As someone who had, on behalf of his employer, supervisory authority over his subordinate, his misconduct went to the root of his employment relationship with the respondent.

In the circumstances, the Appeals Committee cannot be faulted in upholding the penalty of the Disciplinary Committee.

In the result, it is ordered that:

The appeal be and is hereby dismissed in its entirety.

Each party shall bear its own costs.

Dondo & Partners, respondent’s legal practitioners