Manners Mafudze v Cotton Company of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/426/2016
HARARE, 7 JUNE 2016 &
CASE NO LC/H/585/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/426/2016

HARARE, 7 JUNE 2016 &					         CASE NO LC/H/585/2015

22 JULY 2016

In the matter between

MANNERS MAFUDZE							APPELLANT

Versus

COTTON COMPANY OF ZIMBABWE					RESPONDENT

Before the Honourable L M Murasi J

The Appellant in Person

For the Respondent	W Chivaura (Legal Practitioner)

MURASI J:

At the, conclusion of the oral proceedings this court dismissed the appeal stating that the reasons would follow. The following are the reasons:

The appellant was employed by the respondent as the Acting Area Manager at Karoi Depot. It was alleged that the appellant had, during the course of his duties, overstated the figures of seed cotton which had been bought at his depot. Misconduct charges were preferred against the appellant. He was found guilty and dismissed from employment. He appealed to the Managing Director, who dismissed the appeal. The appellant took his matter to the National Employment Council for the Cotton Industry which Tribunal also dismissed his appeal. The appellant has thus sought relief from this court.

The appellant’s grounds of appeal are inelegantly formulated and can be summarised as follows:

That the designated agent had failed to find that the appellant’s dismissal was not in terms of a Code of Conduct.

That the designated agent failed to find that what the appellant was dismissed for amounted to “performance deficiency” and not “gross misconduct.”

That the designated agent had erred in not finding that the difference between “flash figures” and “actual figures” does not result in financial or material loss to the respondent.

The appellant stated that the NEC fell into error by failing to consider that the matter or alleged charges were not part of the Code of Conduct. It was submitted that the respondent was supposed to have identified a gap which would require his training rather than charge him with gross misconduct. It was further submitted that the NEC failed to appreciate that when “flash figures” or “actual figures” were used, there was no prejudice that was suffered by the respondent.

Mr Chivaura for the respondent, stated that though the charge did not specifically state the section in the Code of Conduct, it clearly stated that it was gross misconduct which was provided for in the Code of Conduct. He stated that a reading of the Code of Conduct showed that it was under section 10. It was further submitted that the appellant had supplied figures which would then be used by the Business Unit to plan as well as enter into contracts with third parties on the basis of the figures supplied by the appellant. It was argued that this would of necessity prejudice the respondent if it was then discovered that the respondent had entered into contracts based on commodities which were non-existent. It was stated that the fact that the appellant decided to go out of his area to make seed cotton purchases in order to cover the “gap” showed that he appreciated the gravity of his error. Mr Chivaura further informed the court that the figures provided by the appellant, whether “flash” or “actual” were used by the respondent for planning purposes and that it was the appellant’s responsibility to ensure that correct figures were submitted. It was further argued that having regard to the appellant’s position, a failure to do this amounted to gross misconduct.

It is pertinent to find out how the NEC determined the issues raised by the appellant in this appeal. The designated agent finds thus:

“However offences not clearly codified are provided for in section 10 of the Code under ‘General Misconduct.’ It is however the prerogative of the respondent to categorise all unlisted offences as either ‘minor misconduct, serious misconduct or very serious misconduct or gross misconduct.’ In casu, overstatement of intake figures was classified as a gross misconduct.”

This finding by the NEC comes after the designated agent had stated that the misconduct letter clearly referred to an act of gross misconduct on the part of the appellant. A reading of the award shows that the designated agent was alive to the issue he was supposed to address as regards the charge preferred against the appellant. The designated agent referred to texts and how it was proposed the issue should be approached. Can it be said that there was a misdirection on the part of the designated agent? I think not.

The appellant also raised the second ground of appeal that the designated agent should have found that this did not amount to a “gross misconduct”. The designated agent had this to say:

“I am not convinced that the actions of the appellant were as a result of a mistake or human error. He had all the time to correct the error of the flash figures and when he was requested to explain the variance he decided not to respond. I am of the view that his actions are tantamount to gross misconduct. His actions affected both his performance and the business of the respondent.”

The findings of the designated agent are confirmed by what the appellant stated during oral submissions. The court asked the appellant whether he had responded to the two letters from his superior. He replied in the negative. His response that he believed that he had clarified the issue during a verbal discussion with the superior after the first letter is not supported by the fact that in the second letter, the superior refers to the first letter. Can it be said, that the designated agent was guilty of a misdirection on the facts? I think not. The designated agent was of the view that the appellant’s actions or omissions amounted to gross misconduct. The facts show that the appellant was in charge of the Karoi Depot. It was his duty to ensure that correct figures were relayed to the business unit. In casu, the first variance observed by the Business Unit was a figure of 420 tonnes. This was brought to the appellant’s attention in an e-mail dated 19 July 2014. The appellant conceded during oral submissions that he had not responded to this e-mail. This e-mail was followed by the letter dated 21 July 2014 which gave the figure as 241.940 tonnes. The appellant conceded that such a figure would evidently show a huge tonnage at the depot which would be clearly noticeable. There was no response to the queries raised. It is my view that the appellant’s actions were inexcusable. He had developed an attitude which depicted a behaviour which showed that he was reckless as to the consequences of his actions as an employee. Clearly this went against the grain of what he was employed to do by the respondent. The figures he posted to the business unit were an important asset in the planning of the respondent’s operations. He couldn’t care less as to the effect of the evidently incorrect figures. Any reasonable employer would not have countenanced such a behaviour.

It is trite law that an appellate court, will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection. ZIYAMBI JA had this to say in Mashonaland Turf Club v George Mutangadura SC-5-12:

“In the exercise of their powers in terms of section 12B (4) of the Labour Act, the Labour Court and arbitrators must be reminded that that section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfer with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

The designated agent’s finding of the fact that the appellant was guilty cannot be faulted. His further finding that, the facts of the matter justified a dismissal is unassailable. The court makes the following order:

The appeal is dismissed.

The arbitral award of Honourable Fore be and is hereby upheld.

Each party to meet its own costs.

Maunga, Maanda & Associates, respondent’s legal practitioners