Mercy Dare v Murowa Diamonds

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/13/2022
HARARE, 11 NOVEMBER, 2021
CASE NO. LC/H/LRA/557/18
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IN THE LABOUR COURT OF ZIMBABWE 	       JUDGMENT NO. LC/H/13/2022

HARARE, 11 NOVEMBER, 2021  		        CASE NO. LC/H/LRA/557/18

AND 28 JANUARY, 2022

In the matter between:

MERCY DARE					                      APPLICANT

Versus

MUROWA DIAMONDS					            RESPONDENT

Before The Honourable Kachambwa J

For the Appellant			: 	In Person

For the 1st Respondent	          :        N. Ncube

For 2nd Respondent                    :        In Person

KACHAMBWA J:

The Application

1.	This is an application for confirmation of a draft ruling made by a labour officer.  The application is in terms of section 93 (5a) (a) and (b) of the Labour Act Chapter 28:01 (the Act).  This case was “heard” before the decision which ruled that where a case has been heard and finalized at the workplace it may not be referred to a Labour Officer or designated agent but that an appeal shall be to the Labour Court.

Workplace Proceedings

2.	The 2nd respondent was employed by the 1st respondent as a Warehouse Supervisor.  1st respondent entered into a contract with Murowa Logistics to provide transport services to the 1st respondent.  This was known to the 2nd  respondent.  In turn the 2nd respondent entered into a  sale agreement with Murowa Logistics whereby he sold his minibus to Murowa Logistics.  The agreement stipulated that if Murowa Logistics failed to pay the purchase price the agreement would be converted to one of lease and hire at the rate of $60.00 a day.  The 2nd respondent did not disclose this transaction to the 1st respondent.  Murowa Logistics failed to meet the purchase payments.  The agreement was converted to the lease and hire one.

3.	The 1st respondent charged the 2nd respondent of 11 an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract” This charge was in terms of the National Code of Employment S.I.15 of 2006.  The allegations were that the second respondent was supposed to inform the employer of the sale.  By going into the agreement he had become an interested party in the provision of the transport service.  This created a conflict of interest between him and his employer.  This agreement was in violation of business integrity principles.  He was subjected to a hearing, found guilty and a penalty of dismissal was imposed.  The appeal at the workplace was dismissed hence the reference to the Labour Officer.

Proceedings Before The Labour Officer

4.	The second respondent brought his case before the labour officer and sited both procedural and substantive issues.  He argued that there was no conflict of interest that the respondent was trying to violate his right to freedom of trade.  He professed ignorance of the company’s document “Business Integrity Principles.”

5.	The 1st respondent disagreed with the 2nd respondent and pointed out that there was conflict of interest.  It referred to both local and foreign cases for its argument.  It dismissed the procedural issues as a desperate attempt to escape liability.

6.	The labour officer dismissed the procedure issues but held that there was no conflict of interest.  She said that as Murowa Logistics was not a subsidiary of Murowa Diamonds its purchase of the minibus was as good a purchase as from anyone else.  Any breach of contract was to be treated the normal way between the parties.  The Labour Officer’s finding was that the 1st respondent’s conviction and dismissal of the 2nd respondent was substantively untenable.  She sat aside both conviction and dismissal and ordered reinstatement failing which payment of damages in lieu thereof.

Submissions By the Respondents

7.	The 2nd respondent was initially not cited in the proceedings.  He was later joined.  However he failed to file his papers and was barred.  On the other hand the 1st respondent opposed the applications on the ground that there was conflict of interest as shown in the same cited cases.  The 1st respondent was in  agreement that there were no procedural irregularities.

The Law

8.	The law on conflict of interest is succinctly laid out in the local case of Zimbabwe Mining and Smelting  Company v Timothy Zakeyo Sc 70/2006 a case similar to the present and where the Labour court had made a ruling similar to the one by the applicant.   Malaba JA (as he then was) had this to say –

“the breach of which founded the ground of misconduct with which the respondent was charged (conflict of interest), is that any person who is in a relationship where he has a duty to act in the best interest of the other party is not allowed to put himself in a position where personal interest conflicts, or might conflict with the interest of one who he is bound to protect.”

9.	There is no need for actual prejudice.  Potential prejudice is enough to found conflict of interest.  Justice Malaba reiterated this by further reference to other cases like Regal (Hastings) Ltd v Gulliver Ors [1942] 1 ALLER 378 at page 382 where it was said that –

“A corporate body can only act by agents, and it is of course the duty of those agents so to act best to promote the interests of the corporation whose affairs they are conducting.  Such agents have duties to discharge of a fudiciary nature towards the principal.  And it is a rule of universal application that no-one having such duties to discharge shall be allowed to enter into engagements in which he has; or can have a personal interest conflicting or which possibly may conflict with the interest of those whom he is bound to protect.”

APPLYING THE LAW TO THE CASE AT HAND

10.	It is inescapable that there was indeed conflict of interest.  This is even particularly so when the agreement was converted to lease and hire.  The applicant did not explain how the case is distinguishable from the cited cases.  It is not.  The same fate must follow it as in those cases.  The cases say that there is no need to even call evidence to prove whether the principal did or did not suffer prejudice.

Disposition

11.	In view of the foregoing discussion the application cannot succeed.  The 2nd respondent’s conviction and dismissal by the 1st respondent must be upheld.  It is accordingly ordered as follows –

1.  the application for confirmation of the ruling by the labour officer be and is

hereby dismissed.

2.  the decision by the first respondent to convict the 2nd respondent as charged

and to dismiss him from employment, be and is hereby upheld.

3.  Each party to bear it’s costs