Moja Mutizira v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO
LC/H/83/2020
HARARE, 30 JULY 2019
CASE NO
JUDGMENT NO. LC/H/83/2020
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IN THE LABOUR COURT OF ZIMBABWE           JUDGEMENT NO LC/H/83/2020

HARARE, 30 JULY 2019                                    		 CASE NO LC/H/81/18

AND 13 MARCH 2020

In the matter between:-

MOJA MUTIZIRA                                                                      Appellant

And

ZIMBABWE REVENUE AUTHORITY                                        Respondent

Before Honourable Chivizhe, J

For Appellant	Mr T. E. Gumbo (Legal Practitioner)

For Respondent	 Mrs L. Chipateni (Law Officer)

CHIVIZHE, J:

The matter had been placed before me as an appeal against a portion of the determination of Respondent Appeals Committee handed down on 6th April 2018 wherein the Committee upheld the decision of the Disciplinary and Grievance Committee finding Appellant guilty of two charges and imposing a Dismissal penalty as a consequence. The matter was heard on 30th of July, 2019. On the 28th of August, 2019 the court handed down an order dismissing the appeal and upholding the decision of the Respondent’s Appeals Committee. The Appellant on the 30th of August, 2019 wrote a letter to the Registrar requesting for reasons for judgement. The following are the reasons.

The Appellant was employed by the Respondent as a Chief Internal Auditor. He was suspended from duty without salary and benefits on the 9th of March 2017. He was consequently arraigned before the Respondent Disciplinary Committee to answer to the two counts i.e. Count 1 – refusal to obey a lawful instruction given by a person in authority (D 21) (two counts) and Count 2 – carrying out any act which is inconsistent with the express or imposed terms of his contract of employment (D 25). With regards to the first count the allegations were that Appellant had reported late for work on the 19th of December, 2016 arriving at 1300hrs. He had not sought prior permission. He was requested by his supervisor to write a report on why he reported late for work. On the second count the allegations was that Appellant had been requested on the 8th of March 2017 to attend an integrity interview to be conducted by the Loss Control Division. This was following a complaint of alleged unethical conduct on his part in a Whistle Blower audit case. The Appellant had however failed to attend. On the 9th March 2017 the Respondent wrote a memorandum with instructions to Appellant to attend the interview at 0900 hrs on 13th March 2017. The Appellant had acknowledged receipt but around 0833hrs wrote an email to Mr Swarres and Mr Phiri Acting Director and Acting Chief Loss Control Officer requesting a postponement of the interview on the basis of a nagging toothache and a prior booking with the dentist. The Respondent however had conducted checks with the dentist and established Appellant had no prior doctor’s appointment on the date. The employer then formulated the view that Appellant’s failure and or refusal to attend the said interview with the Acting Chief Loss Control Officer without a reasonable justification amounted to a total disregard of lawful and official instruction given by the Respondent.

The Appellant was found guilty of both counts under category D21 by the disciplinary committee. He was however aggrieved and noted an appeal to the Appeals Committee. That Committee found him guilty of the two counts under category D21. He was however found not guilty on Count 2 category D25. The Appeals committee then upheld the penalty of dismissal from employment imposed by the disciplinary committee.

The Appellant was still aggrieved and noted his appeal with this court against the determination of the Appeals Committee. The appeal was noted on the basis of two grounds of appeal crafted as follows.

The Appeals Committee grossly misdirected itself on the facts when it found that the Appellant failed to submit the report thereby, refusing to obey a lawful instruction when the facts demonstrate that Appellant submitted a written report by copy of an email dated 11 March 2017, which report was never rejected by the complainant for any reasons whatsoever.

The Appeals Committee grossly misdirected itself on the facts when it found that the Appellant failed to attend “integrity interviews” before the Loss Control Division when the undisputed facts demonstrate that it was the complainant himself who was stopped the interview from proceeding contrary to his written memorandum.

The appeal grounds raise one fundamental issue which is whether or not the Appellant was correctly found guilty of refusing to obey a lawful instruction given by a person in authority under Count 1 and Count 2. I turn to address both counts.

Count 1

The Appeals Committee on this count made the following findings.

“On Count 1: D21 you reported late for work on the 19th of December without seeking permission to do so or at least communicate that you would be late. When asked by the Respondent to submit a report, you never did so and the reasons you gave of the delay in getting the necessary logs to substantiate your report was difficult to comprehend. In the report, one was expected to simply explain what had transpired and the logs could only have been required if the report had not been accepted by the Respondent, but you did nothing by way of explaining”

The Appellant contended before this court that the Appeals Committee grossly misdirected itself on the facts in arriving at this finding as the record placed before it clearly showed that Appellant had on the same day on which the request was made for him to file a report explaining his absence from work he had indeed tendered a report in the form of an email. He had explained that he had not reported late for work on the 19th of December, 2016 as suggested by Respondent. He had also further explained in the email that the report had taken too long as he had faced some challenges in getting the log to substantiate his report.

The Appellant further contended that the Respondent had not objected at the stage to the inadequacies of his report in the form of an email as not complying with the standard report. The Appellant further contended that the complainant having conceded in the disciplinary hearing to the non-existence of a Standard report except for when one is preparing a forensic report it was therefore unreasonable for the disciplinary committee as well as the Appeals committee to find that he had failed to file a report thus committing the offence of failure to obey a lawful instruction. On that basis the Appellant’s prayer was for the court to find the conviction on court. I could not be sustained.

Respondent’s counter-position was that the Appellant had properly been found guilty on the count by the disciplinary committee and subsequently by the Appeals Committee. The evidence presented before the disciplinary committee clearly pointed to the Appellant refusal to obey a lawful instruction. The Appellant had reported late on the 19th of December, 2016. He was requested to submit a report by the 20th of December, 2016. He had not submitted the report. His supervisor had sent him several emails reminding him to submit the report. He again had not responded. The Respondent counsel at this stage applied to introduce into the record of proceedings additional evidence in the form of two documents reflecting emails dated 11th February 2017 and the 8th March 2017. The Appellant not being opposed to the inclusion of these documents the documents were duly incorporated into the records of proceedings. The Respondent position was that his supervisor having written several reminders to Appellant and Appellant not responding there can be no doubt that the Appellant’s conduct amounted to a refusal to comply with a lawful instruction.

In regards to the email submitted on the 11th of February 2017, the Respondent’s position was that it did not amount to a report, it had to be in ISO format Appellant was supposed to be aware of the Departmental requirement. The Respondent further submitted that the Appellant had been required to file the report by the 17th of December, 2016. He had deliberately ignored the emails sent to remind him of the request. His failure to submit the report clearly was tantamount to disobeying a lawful instruction. It also showed his lack of respect for his supervisor and authorities in general. On this basis the Respondent prayer was for the court to dismiss the ground of appeal.

The court was satisfied upon a perusal of the record of proceedings and upon consideration of the parties’ submissions that the finding by the Appeals Committee in relation to Count 1: D21 was indeed correct. The record of proceedings before the disciplinary committee clearly showed at page 70 that the complainant led evidence relating to the incident on the 19th of December, 2016 where Appellant had reported late for work at around 1300hrs. He had then been asked to take the whole day off. On being asked by complainant why had he reported late his response was he was at the bank. On being further probed as to why he did not communicate with his supervisor he responded that it was too personal. On further probing he had walked out of the office. This was in the presence of witnesses. The complainant had followed him and advised him to write a report for submission by the 20th of December 2016. On the 20th of December 2016 he did not submit the report. The Complainant had sent him a reminder. The complainant sent further reminders on 23rd December, 24th December, 29th December, 2016, 7th January, 2017 and 13th January 2017 which reminders yielded no report from Appellant. The Complainant submitted that the Appellant only responded with an email on the 11th of February 2017 and his explanation for the absence was different to the one he submitted on 19th of December, 2016. A perusal of the record of proceedings shows that the Complainant testimony on this particular charge largely went unchallenged. The Appellant during these proceedings sought to argue that the email submitted on the 11th of February, 2017 was a report as to why he had reported late. He had also explained why his report was late.

The charge levelled against the Appellant was that of refusal to obey a lawful instruction given by a person in authority. The evidence led by the complainant/witnesses clearly pointed to Appellant refusal to tender an explanation for his conduct on 19th December, 2016. The email he submitted was submitted 55 days after the instruction had been given. He did not dispute that he was late on the 11th of December 2016. His explanation for the delay in report was that he was waiting for logs was not convincing. Even if the email could have been accepted as a report it still not provide an explanation as to why he was late. It was only during the actual hearing he then stated that his wife had suffered a miscarriage on the 19th of December, 2016. There was no doubt that the Appellant had properly been found guilty of failing to comply with a lawful instruction. The Appeals Committee did not misdirect itself on that score.

On the second count the Appeals Committee made the following finding;

”Count 2 D21

You failed to attend the Loss Control interviews as requested on March 2017 and again on 9 March 2017 and you were subsequently suspended on 10 March 2017.

You were advised through a Memo by the Respondent on 9 March 2017 which you signed for to go and attend the Loss Control interview. Though you confirmed to the Respondent that you would avail yourself to the interview, you did not go to Loss Control. Instead soon after, you wrote an email to Loss Control requesting for a postponement of the same due to a nagging toothache.”

The Appellant submitted that he had been asked by the complainant to attend integrity interviews which were to be conducted by Respondent’s Loss Control Division. In particular he was directed to appear before a Mr Phiri. The interviews were however postponed following his requests. The Appellant submitted that the Complainant had later changed his instruction and through a memorandum instructed him to now appear before the Acting Loss Control Director Third Floor at 9am on 9th March 2017. He had then agreed with Mr Swarres the Acting Director Loss Control to reschedule the interview to 15:30hrs on the same day. The Appellant claimed that he had appeared at the said time and was told to see Complainant by Mr Swarres. On this basis the Appellant submission was the charge had clearly been improperly laid against him as it was Respondent who had changed the instruction for him to appear for the interview before Mr Swarres. The Appellant further submission is that the Complainant through his actions waived his rights to raise any charge against him on the score.

The Respondent position in regards to Count 2 was that on the basis of Complainant evidence led before disciplinary committee Appellant had requested to be excused from the interview scheduled on 10 February 2017. The interview was supposed to then continue on 13th February 2017. The Appellant had however raised concern that interview was limiting his independence and scope as he was still auditing the Whistle Blower case. An agreement was reached to continue with the interview after the completion of the audit on the case. The audit was completed on 7th March 2017 and the request was made by Loss Control Division to continue with the interview on the 8 March 2017. Complainant had then directed Appellant to attend interview. Appellant had initially approached the Complainant seeking advice from him in regards documents that had purportedly been requested. Upon being advised that no such documents had been requested by Mr Phiri the Appellant was directed to return to the interviews. It was Complainant evidence that Appellant did not go for an unexplained hearing.

On 9th March 2017 the Complainant had  handed a memo to Appellant directing him to attend an interview at Loss Control at 0900hrs. Appellant had duly signed for the memorandum. At the material time Appellant had not indicated that he had a toothache or was not feeling well.

On the same date however at 0833hrs Appellant wrote to Acting Director Loss Control and Mr Phiri asking for postponement on the basis of a nagging tooth. He indicated he had an appointment for 0930hrs at the dentist. He however left the office at 1003hrs. He did not see the dentist he had indicated in the morning he instead went to see a different dentist. He was however not attended to that same day by the second doctor he saw. This was against a background where he had clearly indicated he could not proceed with the interview due to a severe toothache. The Appellant submission was that the disciplinary committee as well as the Appeals Committee found that the nagging tooth issue was created in order to evade the interview.

The respondent also relied on the evidence of Mr Phiri which also corroborated that of the Complainant. His evidence revealed that Appellant had been invited for an interview on 10th February 2017. The interview lasted for 45 minutes and 3 questions later Appellant asked to be excused so that he could attend to a relative who wanted to go to Mbudzi Bus Terminus. On the 13th February 2017 the interview was stayed by mutual consent. On the 8th March 2017 Appellant had appeared to continue the interview. However after a short while under the guise of going to collect files he left for his office where soon thereafter he advised of a nagging toothache and sought a postponement of the interview.

On the basis of the evidence led before the disciplinary committee which evidence was largely unchallenged it was this court’s finding that the Appeals Committee did not err in upholding Appellant’s conviction on this count. The evidence as presented clearly showed Appellant’s failure to comply with a lawful instruction to attend the interviews. He appeared to be creating excuses so as to avoid the interviews. On this basis the court thus dismissed the second ground of appeal. The Appellant having been found guilty of two counts of very serious offences under the relevant code it was clear that the Dismissal penalty was clearly warranted.

These were my reasons for the order granted on the 27th August 2019.

Chinanwa Law Chambers, appellant’s legal practitioners