Pioneer Coaches (Pvt) Ltd v Nicholas Mukarati

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/650/2016
HARARE 14 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/650/2016

HARARE 14 MARCH 2016				       CASE NO. LC/H/956/15

AND 21 OCTOBER 2016

PIONEER COACHES (PVT) LTD					Appellant

NICHOLAS MUKARATI							Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Ms S. Nyagura, Attorney

For Respondent		Mr A.K. Maguchu, Attorney

MUSARIRI, J:

On 13th October 2015 at Harare, Arbitrator T.C. Sengwe issued an arbitration award.  He ordered Appellant to reinstate Respondent or pay him damages in lieu of reinstatement.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.  The grounds of appeal were three-fold as follows,

“1.	The Honourable Arbitrator grossly erred and misdirected (sic) on a point of law by failing to make a finding that Respondent was grossly incompetent as charged in terms of the National Employment Code of Conduct S.I. – 15/06.

2.	The Honourable Arbitrator grossly erred and misdirected at law by relying on an affidavit without affording appellant an opportunity to cross examine on the affidavit and to adduce oral evidence.

3.	The Honourable Arbitrator grossly erred and misdirected at law by handing down an arbitral award which is grossly unreasonable and irrational in its defiance of logic and common sense such that no reasonable person properly applying his mind to the facts and merits of the case could arrive at such a decision.”

The 3rd ground is couched in conclusory terms.  It is really a conclusion presumably following upon the 1st and 2nd grounds. It is not a stand-alone ground.  The first 2 grounds raise the question of the sufficiency of the evidence, against Respondent.  Accordingly I will deal with the two as one ground.

Respondent worked for Appellant as the Managing Director (MD). He was charged with misconduct namely gross incompetency and inefficiency.  The main case was that  Respondent  reported  to the Board Of Directors a loss of USD 56 930-00  for  the year ending  31st  December 2009.  However this was  adjusted   to  a  loss   of  USD 657 365-00 by external auditors.  In other words, he understated the loss by over ten times its size. That was a material adjustment that would seriously affect Appellant’s financials for that year.  Respondent’s Heads of Argument countered thus,

“22. … Respondent was not responsible for the preparation of such information.  That was the responsibility of the finance manager.  The Respondent could only have communicated information as received by him from the Finance Manager.  It was not his responsibility to redo the accounts before reporting to the Board.  Any error in the calculations cannot therefore be imputed to him … That cannot be gross incompetence.”

I consider the response as problematic.  Firstly the adjustment was too large.  Clearly someone slept on the job.  It could be held to be the finance manager as alleged. However as the Managing Director the buck stopped with Respondent.  In any case he was the one with the responsibility to account to the Board on the operations of the business.  He could not take the attitude that his role was simply to relay figures given by his subordinate.  He had to check and satisfy himself with the figures given before reporting to the board.  He failed in this duty hence the charge of incompetence.  That the incompetence originated in his subordinate’s office does not absolve him.  The size of the adjusted loss, over half a million, is staggering.  This is a  case  where  the facts speak for themselves.  The facts scream incompetence. Res ipsa loquitar the charge got proved.

The misconduct is aggravated by the fact that Respondent paid himself and colleagues service awards and gave staff loans in these circumstances.  The business was running at a significant loss by his own report.  Surely that was not the time to avail feather-beddings to employees. If there was a compelling need for such, then it was imperative to make the case to his superiors, the Board, to obtain their approval given the dire circumstances the business was mired in.  The Arbitrator was persuaded by Respondent’s argument that he was not responsible.  That finding flew in the face of the evidence before the Arbitrator.  I consider that the Arbitrator grossly misdirected himself in assessing the evidence.  Appellant prayed that the Arbitrator’s award should be set aside with the matter being remitted to the Arbitrator “for the appropriate penalty”.

Wherefore it is ordered that,

The appeal be and is hereby allowed;

The arbitration award issued by Arbitrator T.C. Sengwe dated 13th October 2015 is set aside; and

The matter is remitted to an Arbitrator (agreed by the parties or selected by the Registrar of this Court) for a hearing to determine the appropriate penalty for the proven misconduct.

G. MUSARIRI

J-U-D-G-E