Misheck Gororo v Godtrev Investments (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 14 TH
JUDGMENT NO. LC/H/61/24
CASE NO. LC/H/1055/22
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 14TH SEPTEMBER, 2023

AND 20TH FEBRUARY 2024

JUDGMENT NO. LC/H/61/24

CASE NO. LC/H/1055/22

MISHECK GORORO	APPELLANT

And

GODTREV INVESTMENTS (PRIVATE) LIMITED	RESPONDENT

Before the Honourable Kachambwa J, Judge;

For the Appellant:	Mufari & Paradzai Legal Practitioners

For the Respondent:	Stansilous & Associates Legal Practitioners

KACHAMBWA, J:

The Appeal

This is an appeal against the decision of the employer finding the Appellant guilty as charged and imposing a penalty of dismissal. The appeal is against both the conviction and the penalty. The appeal was opposed.

Grounds of Appeal

The Appellant raised five grounds of appeal as follows:-

The Disciplinary Authority erred in finding that the Appellant as a director of the Respondent should be charged and dismissed in terms of the Labour Act and not the Companies and Other Business Entities Act.

1

The Disciplinary Authority erred and grossly misdirected itself in finding in the absence of evidentiary proof that the Appellant had a contract of employment with the Respondent and was therefore an employee of the Respondent.

The Disciplinary Authority erred and misdirected itself in finding that the Appellant’s co-director, one Mr Mugadza was the Appellant’s superior and had authority for the Respondent to give full orders to the Appellant when he had no such powers and the source of such powers had not been established.

The Disciplinary Authority erred and misdirected itself in making a finding that Respondent proved on a balance of probabilities that a lawful order was given to the Appellant when in fact contradictory evidence was given by the Respondent’s witnesses regarding the specific contents and nature of the order allegedly given to the Appellant.

The Disciplinary Authority erred and misdirected itself in finding that the Appellant misappropriated Respondent’s funds and acted or omitted to act in a way that is inconsistent with the terms of employment when evidence was adduced exhibiting that the Appellant was responsible for the procurement and payment of Respondent’s vehicles.

The Appellant abandoned the first two grounds. The hearing proceeded on grounds 3, 4 and 5.

Response To The Appeal

The Respondent opposed the appeal. As a preliminary point it raised the impropriety of the Appellant’s grounds of appeal 1-3 challenging the finding that he was an employee and yet in the prayer seeking to be reinstated as an

employee. The grounds and such a prayer were said to exclude each other so to speak. Thus the Respondent prayed for dismissal of the appeal on this ground.

On the merits of the appeal the Respondent’s position was that there was no merit at all. Firstly the Appellant was an employee even if he could also have been a director and was therefore subject to the Labour Act. In that capacity of employee he took orders from Mr Mugadza. One of the orders was the one sending him on the errand in question. This position was a finding of fact and could not be challenged unless it was raised as a point of law. The Appellant failed to show that level. The fact that the Appellant had received money on behalf of the company and had failed or refused to surrender it to the company for months despite demand to do so was said to be enough to prove the charge. The need to keep money in the company’s safe was said to be notorious as seen in the fact that the Appellant was required to surrender the money for overnight in Mutare let alone keeping it for months at his home.

The Hearing

At the hearing the Appellant abandoned grounds 1 and 2. He persisted with the remaining three. But after abandoning grounds 1 and 2 it seems that ground 3 should automatically fall off. However Appellant insisted on it. He referred to the tests for determining the relationship of employer/employee and said that such was not existent.

On the issue of defying a lawful order the Appellant went into the theory of the charge and opined that there was no proof of the lawful order, that Mr Mugadza’s superior position was not proved. Alternatively, he argued that the order “was not clear in its nature”. He said that in the absence of a procurement procedure, his keeping of the money at his home for the

purpose of procuring a vehicle for the company was in order as it was his duty to do procurement for the company.

On the conviction the Appellant said that it was misplaced.

On the other hand the Respondent argued that once Mr Mugadza was the Managing Director he was imbued with the powers necessary to give orders to the Appellant. One did not have to specifically prove that authority unless it was challenged. On the lawfulness of the order it was said that it was proved on a balance of probabilities. The proof was even seen in the fact that the Appellant himself argued that he had carried out some of the instructions like the test drive. Such an argument was contradictory to the argument that Mugadza did not have authority to orders. It accepted the authority.

On the argument that the Appellant could not be blamed for keeping the money because he was keeping it for procurement of which he was the person responsible the Respondent was of the view that company policy required that the money be kept in the company safe and Appellant would withdraw it for the procurement. By keeping it at home the Appellant was in breach of the company policy regardless of his post. When he went to Mutare he was equally instructed to surrender the money for safekeeping overnight.

The Respondent prayed for punitive costs on the claim that the Appellant had raised the same contradictory grounds that the court had earlier on advised him that they are contradicting and were a concession to being an employee.

Analysis

This appeal is clearly misguided. Once the Appellant conceded that he was an employee the rest of his argument is on a limp. As an employee he obviously

went to Mutare to do the purchase on the strength of some order from the company. The only order on the table is from the Managing Director Mr Mugadza. The witness who accompanied him is clear that he did not follow the order. Further, it is inconceivable that he had any right to keep such a large sum of money at home. In any case when it was called up he should have simply gave it up. Thus the evidence against him is more probable than his defence which is based more on the theories rather than the facts.

The Law

The law does not permit an appeal court to lightly interfere with the findings of fact of a lower court that heard the evidence. There must be a serious misdirection by the lower court before the court interferes. The present appeal is basically on factual findings. The classic case on this issue is probably Hama v NRZ 1996 (1) ZLR 664 (S) the court said that:-

“Inotherwords,thedecisionmusthavebeenirrationalinthesense                                                                   of     being    outrageous in     its     defiance  of     logic  or     of     accepted moral standards that   no    sensible   person who   applied   his    mind   to    the questioncouldhavearrivedatsuchaconclusion”.

Competing with the Hama case is Barros & Another v Chimpondah 1991(1) ZLR 58 (S) at 62G-63Awherethecourtsaidthat-

“Itisnotenoughthattheappellatecourtconsidersthatifithadbeeninthe                         positionoftheprimarycourtitwouldhavetakenadifferentcourse.Itmust                                appearthat someerrorhasbeenmadeinexercisingthediscretion. Ifthe                                        primarycourtactsuponawrongprinciple,ifitallowsextraneousorirrelevant                                  matterstoguideoraffectit,ifitmistakesthefacts,ifitdoesnottakeinto                                                                       account some relevant consideration, then its determination should be

reviewed and    the   appellate    court    may    exercise its   own    discretion in substitution,providedalwaysithasthematerialsforsodoing".

This is not a case where one can say that there was a misdirection at all.

The law on costs is clear. Punitive costs are for the worst case scenario. It is doubtful whether this is one of those cases.

Disposition

From the foregoing the appeal has no merit. It has to be dismissed with costs but on the ordinary scale. It Is accordingly held that;

The appeal be and is hereby dismissed with costs.