Lina Mayahle v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGEMENT NO LCH28/24
CASE NO. LC/H/961/22
30 JANUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE,	30 JANUARY 2024

In the matter between:-

LINA MAYAHLE VS

GRAIN MARKETING BOARD

Before the Honourable CHIVIZHE J

For Appellant	– Mr H. Gwanyanya (Legal Practitioner) For Respondent – Mr V. N. Mukumba

CHIVIZHE, J;

JUDGEMENT NO LCH28/24

CASE NO. LC/H/961/22

– APPELLANT

– RESPONDENT

This is an appeal against a determination by the Respondents’ Chief Executive Officer sitting in his capacity as an Appeals Authority. The determination which was handed down on 3rd of June, 2020, in its operative part, dismissed the appeal noted by the now Appellant against the determination of the disciplinary committee. Secondly, the appeals authority upheld a cross appeal by the now Respondent, thereby setting aside the lesser penalty imposed by the respondents’ Disciplinary Committee and substituting it with a heavier penalty of dismissal from respondent’s employment with immediate effect. The Respondent was also directed to recover from the Appellant the amount lost as a result of Appellant’s misconduct.

The material background facts are as follows. The Appellant was employed by the Respondent as a Handling Supervisor whose major duties included physically checking quantity and quality of stock being dispatched and received. On or around 14 February 2020, a disciplinary hearing was convened for the Appellant. The three charges levelled were of Theft

i.e. violation of category 1 Section 3(i) of the relevant Code; Falsification i.e. violation of category 1 Section 3 (vii) of the code: Any act of misconduct or omission inconsistent with the fulfilment of express or implied conditions of contract i.e. violation of category II Section 11 of the Grain Marketing Board, Code of Conduct, 2018 Amendment.

The charges were levelled against the background that Delta Beverages had brought 31.800 metric tonnes (mt) of white maize from the Respondent. On 5th November 2019 Delta Beverages forwarded details of the transporters to the Respondent. The Appellant however, acting in common purpose as part of a syndicate had falsified facts by signing a fraudulent tally

card and also falsified facts in the Dispatch Book. This she had done in order to misrepresent that she had loaded a truck number ACZ 2265/AEG 2525 from Delta Beverages when in actual fact the truck onto which the maize was loaded was truck number ABS 7827/ADZ 8671 from Mazire Truck which vehicle had not been authorised to load the maize. The employer felt that by falsifying information Appellant cleared the way for the theft of the maize hence the levelling of the charges.

Following a fully-fledged disciplinary hearing the Appellant was found guilty of one charge, i.e. any act of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of one’s contract of employment. The other two charges of theft and falsification were withdrawn by the Respondent. The Disciplinary Committee thereafter imposed a penalty of a Final Written Warning with demotion to Depot Clerk and transfer from Marondera Depot to Chivhu Depot effective 28 February 2020. The final written warning and demotion was supposed to run for twelve (12) months.

The Appellant was aggrieved and noted an appeal to the Appeals Authority against conviction and penalty. The Respondent also filed a counter-appeal against the dropping of the two charges (of theft and falsification) and the lenient sentence imposed. In a determination handed down on 3 June 2020 the Appeals Authority handed down its determination as referred to above.

THE APPEAL

The present appeal has been noted on the basis of 5 grounds of appeal which are outlined as follows;

The Respondent’s Chief Executive Officer erred and grossly misdirected himself in determining and allowing a cross appeal that was not properly before him to the extent the cross appeal was brought outside the seven (7) day period within which it ought to have been filed as provided in terms of the applicable Code of Conduct.

The Respondent’s Chief Executive Officer erred and grossly misdirected himself in condoning the late filing of the Respondent’s cross appeal when no such application for condonation has been made.

The Respondent’s Chief Executive Officer erred and grossly misdirected himself in upholding a falsification charge which was based on cross appeal that was filed out of time and therefore not properly before him.

The Respondent’s Chief Executive Officer erred and grossly misdirected himself in failing to make a finding that the Appellant did not commit the alleged misconduct for which she was convicted of given that she was not part and parcel of the group led by Jairos Manyara which stole the 31.880 mt of maize.

The Respondent’s Chief Executive Officer erred and grossly misdirected himself in interfering with a lighter sentence of demotion and final written warning imposed by the Disciplinary Hearing Committee when there was no legal or factual basis for such interference.

In relief the Appellant prays for the appeal to be allowed, the decision of Respondent’s Appeals Authority to be set aside and substituted in its place with an order, firstly, granting the appeal to the Appeals Authority, secondly, dismissing the Respondent’s appeal, thirdly, an order for reinstatement to her original position or in the alternative payment of damages in lieu of reinstatement.

IN LIMINE

The Respondent is opposed to the granting of the appeal. The Respondent had taken as a point in limine the fact that the record was incomplete, that the record in fact had a page missing. The court having directed, at the hearing, the placing of the particular page in the record, the page was duly inserted and the hearing resumed. The point in limine was consequently abandoned. On the merits, the Respondent submits, that, the appeal completely lacks merit as the Appellant was properly found guilty on the charge. The Respondent further submits that it was entitled to file a cross-appeal under the Code. Even if the Code of Conduct does not make specific provision for a cross-appeal, the Respondent’s position is it was entitled on the basis that Labour matters are generally not to be determined on the basis of such technical issues rather they should be determined on the basis of the merits. On the charges that were reinstated by the Appeals Authority the Respondent submits that there was clear evidence (both oral and documentary) pointing to falsification and appellant’s collusion with other employees to steal from Respondent. On the last ground of appeal challenging the penalty imposed by the appeals authority the Respondent submits that the Appeals Authority properly exercised his discretion to interfere with the conviction and penalty after reviewing the evidence. On this basis the Appellant prayer is for the appeal to be dismissed.

PARTIES SUBMISSIONS

Mr Gwanyanya, for the appellant, submitted that although five grounds had been filed there were basically two issues for determination before the court. The first was whether the Appeals Authority had power/competence to entertain the cross appeal by Respondent under the Code of Conduct. It was his submission that whilst Section 6 of the relevant Code of Conduct allowed for a right of appeal for either the complainant party or respondent party who is dissatisfied with the disciplinary committee determination there is however no provision made for condonation. The Respondent in this case filed its cross appeal outside the 7 days stipulated period. The Respondent did not seek for condonation. The appellant proceeded to determine the cross-appeal. On this basis the determination by the Appeals Authority was therefore invalid. On the second issue, the Appellant’s submission is that it was improper for Respondent to resuscitate the Theft/Falsification charges and to thereafter impose a heavier penalty. This was in view of the cross appeal having been in any event improperly placed before the appeals authority.

Mr Mukumba, for the Respondent, submitted in relation to the issue of no condonation sought for the late filing of a cross appeal, that the Appeals Authority had taken a stance to condone both parties for their violations of the code. The appellant had also violated the code

through a mis citation. Condonation had been granted to both parties in order to allow the Appeals Authority to address the matter on the merits rather than on technical issues. This was clearly apparent from the record. Mr Mukumba submitted that the decision by the Appeals Authority could not be regarded as irrational and therefore warranting interference by this court. The approach taken was also supported by authorities including the famous Dalny Mine v Banda 1999(1) ZLR 220 and more recently the Edmore Mapondera & 55 Others v Fred Rebecca Gold Mine SC 81/22.

On the issue of penalty, Mr Mukumba submitted that the Appeals Authority properly exercised his discretion in interfering with penalty. The record clearly showed that Appellant had admitted to the falsification on the tally card. There was also witness evidence pointing to Appellant having verified the information on the tally card and finding that the loading vehicle was now different. Mr Mukumba submitted the Appeals Authority properly found on the basis that Appellant should have been found guilty of falsification by the Disciplinary Committee. On the issue as to whether the Appeals Authority had power to impose a heavier penalty, Mr Mukumba submitted that even if the code made no provision for such power/competence on the part of the Appeals Authority, the power/competence was inherent. The Respondent was placing reliance on the Edmore Mapondera and 55 others vs Freda Rebecca judgment referred to supra where the Supreme Court stated that the Labour Court should, in instances where the Code of Conduct is silent, endeavour to give a broader, liberal interpretation to the provisions of the Code of Conduct. On this basis his prayer was for the dismissal of the appeal.

EVALUATION

It is a trite position at law that in order for an appellate court to interfere with factual findings made by a lower tribunal there must be established error or a misdirection. See Zinwa vs Mwoyounotsva SC28/15.

Grounds numbers, 1,2,3 and 5 as correctly conceded to by Appellant’s Counsel all relate to one issue – they relate to whether the Appeals Authority had competence to entertain the cross-appeal by the Respondent. The Appellant submission is that the Appeals Authority had no powers to entertain the cross-appeal much less so power to grant condonation. The Appellant contends therefore that any decision taken as an outcome of the cross appeal were invalid decisions. The appellant prayer therefore is for the decision of the Appeals Authority to be set aside on that basis.

The first port of call to determine the power/competence of any body/ authority is its enabling statute. In this case it is the Code of Conduct for the industry. i.e. GMB Code of Conduct, as amended in 2018. A perusal of the Code of Conduct which was filed by the Appellant after the hearing will show that under the appeals procedure where either party (Complainant or Respondent) is not satisfied with the determination of the Disciplinary hearing Committee/Authority the party has a right of appeal to the next level. Under the relevant Code of Conduct appeals are provided by Section 6 (g) of the Code of Conduct which reads:

(G) If either party (complainant or Respondent) is not satisfied with the determination of the disciplinary committee/authority, the unsatisfied party has the right to appeal to the general manager or to the Board Chairman within seven (7) working days from receipt of the written determination (penalty.)

It is therefore clear that the Respondent had a right as well as the appellant to lodge a cross appeal to the appeals authority. In regards the point raised by appellant that it is an affront to both justice and commonsense for an employer to appeal against a decision by a disciplinary committee set up by the employer, the position is now settled at law that an employer aggrieved by a determination by the disciplinary committee also has a right to appeal. See Obson Matunja vs Zesa SC 73/22.

In regards the issue of condonation for late filing of the cross appeal, it is indeed the correct position that the Code of conduct makes no provision for condonation. In the absence of a specific provision allowing for condonation it is in the Court’s view only proper for the Respondent to have sought condonation before the Appeals Authority. The power to grant condonation is inherent in any body/ authority that is authorised by statute to hear a matter.

The Code of Conduct clearly provides for a right to appeal to both parties against the determination made by the disciplinary authority. By virtue of the provision the power is inherent in the body/authority set up to hear the appeal to grant condonation in instances of delays. In this case the Chief Executive Officer granted condonation on the basis that he felt that the matter would best be resolved on the basis of the merits. He therefore granted condonation to Respondent and also extended condition to the appellant for the error of mis citation. He observed that, strict adherence to procedure would defeat the attainment of a just and fair determination. In the Court’s considered view there is nothing amiss in the approach taken to condone both parties’ defective papers in order to avoid the disposal of the matter on technicalities. I would therefore dismiss the grounds 1,2,3 and 5.

The Appellant has also attacked the decision of Appeals Authority on the basis that the Appeals’ Authority failed to uphold her submission that she had been wrongly convicted of the charges. Appellant contends that she should not have been found guilty of falsification as on the record of proceedings before the disciplinary committee it was conceded that one Jairos Manyora was the mastermind behind the loss of 31.880 mt of maize by presenting falsified documents. Appellant contention is that the tally card presented to her was already falsified in order to ensure that it tallied with the details of the truck. Appellant was therefore a victim of a planned scheme led by Jairos Manyora. The Appeals Authority therefore erred in dismissing her appeal before him in the circumstances.

The Respondent’s counter submission is the Appeals Authority correctly found the appellant guilty of both falsification and theft. Both acts of misconduct had been proven on a balance of probabilities before the Disciplinary Committee. The findings made by the Appeals

Authority were therefore in sync with the evidence as led before the disciplinary committee. There was therefore no misdirection.

In the court’s finding the Appellant was properly found guilty on charges of falsification as well as theft. There was evidence led that clearly proved the Appellant was given details of the Fisksow truck which was supposed to be loaded as per instruction by Delta Beverages. The Appellant however proceeded to load a Mazire Truck with different registration details which vehicle was not authorised to transport as per clients instruction. The Appellant clearly falsified documents in this case and was therefore properly convicted of falsification. In regards Appellant ground of appeal number 4 the Appellant clearly admits to having committed an act of misconduct or omission inconsistent with the express or implied condition of employment contract. The Appellant was employed as a Handling Supervisor, She was therefore responsible, amongst other things, for receiving and dispatching stocks, physically checking quantity and quality of stocks dispatched and received. The evidence led in the hearing clearly showed she had received a tally card which had the details of the truck which was supposed to be loaded. The tally card also provided the details of the driver and the registration number of the Truck. The Appellant however proceeded to load the maize onto a different truck with a different driver resulting in the employer losing the maize. There is no doubt that in view of the overwhelming evidence the Appellant was properly convicted by the Disciplinary Committee. The conviction was correctly upheld by the Appeals Authority.

The final issue raised by the Appellant is that the Appeals Authority erred and misdirected himself in interfering with the lighter sentence imposed of demotion and final written warning by substituting with a heavier penalty of dismissal with immediate effect. The Appellant submits that there was no basis on which the Appeals Authority could have interfered with the lesser penalty imposed by the Disciplinary Committee. The Appellant contends that sentencing is within the discretion of the Disciplinary Committee which cannot be lightly interfered with. Sentencing can only be interfered with where there has been a gross misdirection in the exercise of the discretion. The Appellant referred to the authority in Malimanji vs CABS 2007 ZLR 77. The Appellant submitted that the record showed however that the Appeals Authority had interfered solely on the basis of the penalty being “too lenient”.No misdirection was pointed to by the Appeals Authority. The Appellant contends the Appeals Authority could not interfere merely on the basis that he did not agree with the Disciplinary Committee. The Appeals Authority conduct was clearly unlawful. This is especially so in the view that the falsification and theft charges resuscitated by the Appeals Authority could not be resuscitated as the counter- appeal itself was a nullity.

The Respondent in regards to the issue of penalty contends that the Appeals Authority did not simply interfere with penalty. He upheld the Respondent’s counter-appeal and had to as a consequence reconsider the issue of an appropriate penalty. This he did after considering the evidence in the record which showed that appellant was also guilty of falsification and theft.

Before meting out the penalty, the Appeals Authority considered the mitigatory and aggravating factors of the case. He found that the penalty imposed by the disciplinary committee was too lenient and substituted with his own. The Respondent also submits that it is in any event a trite position that where an employee is convicted of conduct inconsistent with express or implied conclusion of the contract, the employer is entitled to dismiss.

It is the court’s finding on the issue of penalty that the Chief executive officer did not err in interfering with the penalty imposed by the disciplinary committee. It is very clear that upon a perusal of the record the Appeals Authority after receiving submissions and evidence in support of the counter-appeal upheld the counter-appeal. This essentially meant that he had to alter the penalty imposed by the disciplinary committee as the Appellant was now convicted of three charges. The Appeals Authority in the exercise of his discretion meted what he felt was an appropriate penalty. He therefore substituted the lesser penalty. The issue becomes did he properly exercise his discretion in meting out a dismissal penalty in the circumstance. The Court’s finding is he did properly exercise his discretion in view of the gravity of the offences that the appellant was now convicted of, which offences clearly went to the root of the contract. The appellant in this case had clearly betrayed the trust imposed upon her in her position as a Handling Supervisor. It is also a trite position at law that were an employee is convicted of conduct inconsistent with the fulfilment of the express or implied condition of contract of employment a dismissal penalty is justified. See Standard Chartered Bank of Zimbabwe vs Chapunka SC 125/04 which was aptly referred to by the Respondent. There is clearly no basis for interference with the findings by the Appeals Authority.

In the result, the appeal be and is hereby dismissed with costs.