RTD Colonel Nicodemus Gukwa v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/769/2016
HARARE, 11 OCTOBER 2016
CASE NO. LC/H/769/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/769/2016

HARARE, 11 OCTOBER 2016			          	       CASE NO. LC/H/750/15

AND 2 DECEMBER 2016

In the matter between:-

RTD COLONEL NICODEMUS GUKWA				Appellant

And

GRAIN MARKETING BOARD					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr T.D. Muskwe (Legal Practitioner)

For Respondent		Mr P. Makuwaza (Legal Practitioner)

MAXWELL, J:

Appellant was employed by the Respondent as the logistics and Distribution Manager.  On 4 March 2010 he was suspended from employment without salary and benefits on the basis of misconduct.  On 8 March 2010 he was charged with three counts of misconduct.  The allegations were that between 5 and 20 January 2010 he signed loading instructions for Salt Lakes Transport without a valid contract. He was accused of not exercising the required due diligence when executing his duties in relation thereto.  Appellant’s alleged laxity and over delegation, over-trust and over-reliance on subordinates led to the loss of 120 metric tonnes of rice and 30 metric tonnes of maize all valued at $30 000.00.

Following a disciplinary hearing Appellant was found guilty and was dismissed from employment with effect from 4 March 2010.  Aggrieved, Appellant appealed to this court on the following grounds;

It is respectfully submitted, that the Disciplinary Committee presided over by the two (2) Arbitrators erred in law by proceeding with the hearing to its conclusion without oral testimonies of the crucial witnesses such as Tsitsi Bhudhiyo, Kandeya and Chitungwa.

It is respectfully submitted, that the hearing a quo erred in finding the appellant guilty of acts of misconduct in circumstances where defence was not controverted or impugned; by any independent evidence.

It is respectfully submitted, that the rules of natural justice were transgressed in that the officers of the Loss Control Department were  allowed to wear two (2) (sic) i.e. as the investigators adjudicators and witnesses at the same time; which compromised the fairness and impartiality of the hearing.

It is respectfully submitted, that the Court a quo erred in law in handing down verdict that was manifestly excessive in the circumstances.

It is respectfully submitted, that the decision by the hearing a quo was a complete misdirection of facts to the extent that it was so outrageous in its defiance of logic and accepted moral of (sic) standards that no person who had properly applied his mind to it would have arrived at such a decision.

Appellant prayed for the setting aside of the decision of the hearing a quo. In response Respondent stated that;

It was not for the Committee to call the witnesses if indeed they were crucial.  It was in the province of the Respondent through the complainant to choose which evidence to rely on.

At all material times the evidence by the complainant and loss control controverted and/or impugned the defence by the appellant.

No natural justice was transgressed. Loss Control department investigated the matter and produced a report.  In the hearing they only presented their report and the findings they made.

The verdict cannot be excessive regard being (sic) to the circumstances of the case and the nature of the misconduct Appellant was found guilty of as they went to the root of the contract of employment.

The decision was fair and reasonable.  Appellant’s acts of misconduct went to the root of the employment relationship.  He neglected his duties, over-delegated his duties, over relied on subordinates and caused gross loss to the Respondent contrary to his duty as the manager of such an important department of logistics and distribution.

Respondent prayed for the dismissal of the appeal.

Ground of Appeal 1

Appellant criticises the Disciplinary Committee for proceeding with the hearing to its conclusion without oral testimony of crucial witnesses.  It is difficult to understand what the oral testimonies would prove. It is common cause that Appellant did not see the contract between Respondent and Salt Lakes. He acted on the advice of his subordinate.  The record of proceedings shows that on two occasions he asked about Salt Lakes as a transporter but did not verify its authenticity. In his report on page 95 he states

“When the loading instructions came for my signature I felt a hunch and again asked whether the hardly known Salt Lakes Transport had met all the standard requirements to have a valid contract with GMB.”

In my view the evidence before the Committee was sufficient.  In any event nothing precluded Appellant from indicating that he required the witnesses to attend and give evidence.  I therefore find no merit in this ground of appeal.

Ground of Appeal 2

Appellant alleges that his defence was not controverted or impugned by any independence evidence. The defence is that he was misled by subordinates. Counsel for appellant argued that it is difficult to say why the fraudulent act of the subordinate should be visited on the Appellant.  This is in the face of the fact that Appellant did not dispute signing the loading instructions without the contract.  He does not dispute being the overseer.  In the decision of the disciplinary committee, it is stated.

“Respondent does not deny that applicant incurred a loss of goods in the sum of $130 000 through his negligence. It is also not in dispute that respondent over delegated and our relied on his subordinate, one Tsitsi Bhudhiyo.  Respondent has not shown that his misconduct though technically inconsistent with the fulfillment of the conditions of his contract, was so trial so inadvertent, so aberrant or so otherwise so excusable that the remedy of summary dismissal is not warranted.” (Underlining for emphasis).

In light of the statement above it is difficult to understand on what basis Appellant says his defence was not controverted. He made admissions that show that he acted contrary to his responsibility as a manager.  He betrayed the trust that was reposed in him.  Even when he had a hunch, he did not act responsibly by insisting on seeing the contract document.  In his position it was irresponsible of him to rely on the mere say so of a subordinate, especially where valuable goods were involved. I find no merit in the second ground of appeal.

Ground of Appeal 3

Appellant alleges that rules of natural justice were transgressed.  Counsel for Appellant conceded that this ground of appeal deals with procedural issues.  He was however of the view that it is a situation where the ground of review is the same as the ground of appeal. In my view the Appellant is aggrieved by the method of trial. He is not complaining about a wrong conclusion on the facts or the law.  In such circumstances the proper procedure is an application for review.  See Herbstein &  Van Winsen The Civil Practice of the Superior Courts in South Africa (2nd ed) at p668. I therefore find that the third ground of appeal improperly raises review issues.  For that reason it is struck off the record.

Ground of Appeal 4

Appellant alleges that the verdict handed down was manifestly excessive in the circumstances.  As submitted for Respondent a verdict is a finding of whether guilty or not.  It can never be termed “manifestly excessive in the circumstances.”

Assuming that Appellant intended to make reference to the penalty, the Disciplinary Committee’s decision cannot be faulted.  It is trite that the penalty to be meted in a particular case is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of the particular case dictate otherwise.  See Malimanji v CABS 2007 (2) ZLR 77. No misdirection has been alleged in this case.  There is no merit in this ground of appeal as well.

Ground of Appeal 5

Appellant alleges that the decision of the hearing a quo was a complete misdirection of the facts.  Appellant did not elaborate where the misdirection was.  In oral submissions Counsel for Appellant stated that the decision was handed down in circumstances where one of the subordinates confessed. In my view the confession by the subordinate does not exonerate Appellant.

The reason he was made a manager was to supervise the subordinates. Relying on subordinates’ representations without confirming the authenticity of those representations in my view is a dereliction of duty by the manager. He had a duty to ensure that all the requirements for a registered transporter are in place before signing the loading instructions.  In my view there was no misdirection of facts at all.

From the above, I find no merit in the appeal.  The following order is therefore appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Muskwe & Associates, appellant’s legal practitioners

Makuwaza & Magogo Attorneys, respondent’s legal practitioners