Stanley Dube v Premier Service Medical Aid Society

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/492/2013
HARARE, 3 & 11 OCTOBER 2013
CASE NO.
JUDGMENT NO. LC/H/492/13
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IN THE LABOUR COURT 			             JUDGMENT NO. LC/H/492/2013

HARARE, 3 & 11 OCTOBER 2013		  		 CASE NO. LC/H/173/2012

In the matter between

STANLEY DUBE 							Appellant

And

PREMIER SERVICE MEDICAL AID SOCIETY			Respondent

Before The Honourable P. Muzofa; Judge

For Appellant  	-	M. Mandevere (Legal Practitioner)

For Respondent	-	J.C. Muzangaza (Legal Practitioner)

MUZOFA P.;

This is an appeal against the Respondent’s Appeals Committee which confirmed the appellant’s dismissal.

The brief facts of the case are that Appellant was employed by the Respondent as an Assistant Manager for 12 years.  In October 2010 the appellant travelled to Victoria Falls to conduct some business on behalf of the Respondent.  He was allocated 180 litres of petrol fuel coupons which were expected to be used for a distance of about 1200 km, as stated in the charge.  It was further alleged that when the appellant conducted business in Victoria Falls and subsequently returned to Harare he overstated his fuel claim by 65 litres and had an outstanding 43,8 litres that refueled the AVIS car which he had rented for use while on business in Victoria Falls.  The appellant failed to account for 108,8 litres of fuel.

The appellant was subsequently charged for contravening a Group ‘D’ offence for “any act, conduct, omission or breach of implied contract of employment” –

The Disciplinary Committee found the appellant guilty and imposed the mandatory penalty of dismissal as provided for in the Respondent’s Code of Conduct.  The appellant noted an appeal against the said decision to the appeals committee which upheld the disciplinary committee’s decision.  Still dissatisfied the appellant filed an appeal against the appeals committee’s decision to this court.

A summary of the grounds of appeal is as follows:

The appeals committee grossly misdirected itself by failing to give reasons for its decision.

The appeals committee grossly erred by failing to find that the appellant’s alleged conduct fell under group ‘C’ offences instead of under Group ‘D’ offences as charged by Respondent.

The appeals committee erred by upholding the decision of the Disciplinary hearing committee which misdirected itself by dismissing appellant’s points in limine to have the case stayed due to an inordinate delay of five months.

The appeals committee should have made a finding that the light which illuminated on the dash board had an effect on the fuel consumption of the hired AVIS motor vehicle.

The appeals committee erred in confirming the decision of the disciplinary hearing committee where there was no conclusive evidence on the effect of the illumination on the dash board on fuel consumption.

The appeals committee erred by confirming the disciplinary hearing committee’s decision which relied on estimates that could not be proved or disapproved.

That the mitigation factors were not taken into consideration in line with the provisions of clause 4.1 of the Respondent’s Code of Conduct.

After the Respondent filed its Notice of Response it was submitted by the appellant’s representative that the Notice of Response did not comply with this Court’s Rules.  In terms of Rule 15 (2)(b) of the Labour Court Rules SI 59 of 2006 a Notice of Response in Part II of Form LC 2 should be completed.  The Respondents in this case did not use the said Form LC2.  It was submitted that Rule 15 (2)(b) is peremptory and parties should not disregard the provision.  It was therefore submitted that there is no response filed of record and the matter should proceed in terms of Rule 22 of this Court’s Rules.  On the other hand the Respondent argued that there was substantial compliance with the Rules of this Court and that Rule 37 (1) of the Court Rules allows a party to improvise.

This court is alive to the proposition that labour court matters should not be predominantly decided on technicalities.  This therefore means that where the departure or the technicalities can be made right it is preferable to right the wrong so that the matter can be decided on merits.  Indeed Rule 37 (1) of this Court’s Rules allows a party to improvise any of the forms.  The Registrar may refuse to accept such an improvised form Rule 37 (2).  In this case the Registrar accepted the Notice of Response filed by the respondents and prima facie that means it substantially complied with Part II of Form LC 2.  The court will therefore invoke the provisions of Rule 26 of the Labour Court Rules and condone the departure made by the respondents.  Accordingly the court makes a finding that there is a Notice of Response as filed of record.

I will now turn to deal with the grounds of appeal.

That the appeals committee failed to give reasons for its decision.

This ground of appeal was just stated in the grounds of appeal but was not substantiated in the appellant’s heads of argument and even before this court.  This court has no option but to make a finding that the appellant abandoned this ground of appeal therefore it falls on that basis alone.

Choice of Misconduct Charge.

It was submitted on behalf of the appellant that his conduct fell squarely under clause 10.3.9 of the Respondent’s Code of Conduct, which provides “Misuse of funds, assets, labour, materials equipment, transport or property belonging to the society.”

Instead he was charged under Group ‘D’ offences which provide

“10.4.13 Any act, conduct, omission or breach of implied contract of employment”

It was argued that where the Code clearly covers a misdemeanor the employer is enjoined to charge accordingly to create some certainty on what conduct is covered by the different clauses.  The Respondent’s choice of charge was informed by malice and could set a bad precedence of uncertainty in terms of choice of charges.  Mr Muzangaza for the Respondent submitted that the employer has the prerogative to prefer a charge against an erring employee without input from the employee.

The issue raised by this ground of appeal is whether an employer has an unfettered discretion in preferring a charge against an employee even where the conduct is specically covered in some section of the code.  Both counsel did not refer to any law or case authority to substantiate their argument.  Section 101 (3)(a) of the Labour Act [Chapter 28:01] provides a guideline of what should be included in a code of conduct.  The section provides that:-

“3. An employment code shall provide for (a) the disciplinary rules to be observed in the undertaking, industry or workplace concerned, including the precise definition of those acts or omissions that constitute misconduct”.

The provision was meant to address the issue of certainty.  Codes of conduct should be clear on what constitutes misconduct.  In this case the Respondent’s Code provides that it is an act of misconduct to misuse funds, assets, labour that belongs to it.  The appellant might have misused the fuel allocated to him for the business trip.  I am persuaded by counsel for the appellant’s argument that, the section  under which the appellant was charged is applicable for misconducts not expressly included in the Code.  I am not persuaded by the Respondent’s argument that the employer has discretion to select a charge.  Where a misconduct is expressly covered in the code the employer cannot be allowed to charge under the general all encompassing section.  This will be leaving codes of conduct with some uncertainty.  If the Respondent was of the view that appellant’s conduct amounted to theft as submitted by counsel for the Respondent it seems section 10.4.9 sufficiently covers such acts of dishonest.  The appellant must have been charged under the Group ‘C’ section.  This ground of appeal succeeds.

Delay in prosecuting the appellant.

From the documents filed of record it is not clear when the offence was discovered.  However according to the appellant’s representative as recorded in the minutes of the disciplinary hearing the offence occurred in 2010.  The appellant was invited to respond to the allegations and he did so on 21 February 2011.  Thereafter it was until the 19th of August 2011 when he was invited for a disciplinary hearing.  It was submitted that a delay of five months was inordinate and did not comply with Clause 6.1 of the Respondent’s Code of Conduct which provides

“Where it appears that an employee has committed an offence, the case shall ne reported immediately to the Designated Official shall initiate investigations into the alleged misconduct….. If the alleged offence warrants a written warning or above the matter is brought to the Human Resources Official who shall refer it to a Disciplinary Committee.”

It was also argued that the delay of five months contravenes the provisions of SI 15 of 2006.

This delay was not disputed but the Respondent’s counsel pointed out that reasonable explanations existed for the delay.  Reasons included that the office of the Designated Agent was under staffed and that the offence was discovered after an audit exercise.  It was further argued that the provisions of were inapplicable where a company had a Code of Conduct, and that there was no prejudice suffered by the appellant he remained employed during the period.

The Respondent’s code provides that an offence should be reported to a Designated Agent immediately.  There is no time frame in the code specifying how long the Designated Agent should take investigating the case.  It is not clear when the matter was reported to a designated agent but what is not in dispute is that it was five months after the discovery of the offence that the appellant was invited for

a hearing.  The code does not specify the time frame but the tenets of justice requires that hearings should be done in the spirit of Section 2A (1)(f) of the Labour Act calling for expeditious hearings.  The Respondent does not deny that there was a delay in hearing the appellant’s case.  Part of the reasons being that the office of the designated agent is not a full time engagement and was under-staffed.  It is the employer’s duty to ensure that the structures of the code are put into place and functioning, see Semwayo v Dibrell Brothers (Pvt) Ltd HH-112-94 it was therefore Respondent’s duty to make sure that the appellant’s case was dealt with timeously.  It was argued on behalf of the Respondent that appellant did not suffer any prejudice since he was still employed and receiving all his benefits.  It was not shown by the appellants if there was any prejudice suffered.  In that regard even if there was a delay in hearing the matter there was no prejudice suffered this ground of appeal cannot succeed and therefore dismissed.

That there was insufficient evidence against appellant.

I will deal with grounds of appeal four, five and six as they relate to the evidence that was led against the appellant.  It was submitted on behalf of the appellant that there was no conclusive evidence whether the dashboard light on the hired Avis car had any effect on the fuel consumption.  It was further submitted that the appeals committee confirmed a dismissal that was based on estimates.

The record of proceedings show the following, that the appellant received 180 litres of fuel coupons which was estimated to cover a distance of 1200km, he hired an Avis motor vehicle which had a dashboard light illuminated, there was no conclusive evidence what the light was for and the manufacturer’s specification was that the car would use one litre for 14.9 kilometers.  It was agreed that the appellant travelled 1523 kilometers as opposed to the anticipated 1200 kilometers.  So clearly it was likely that he would use more fuel than issued.  It was also an agreed fact that consumption of fuel of any motor vehicle was influenced by the type of fuel used, the terrain, whether heavy gears are used and use of conditioning.  What provides conclusive proof in this matter is Exhibit 7 produced before the hearing committee.  This is a recording of the ABI 7022 car which was hired by the appellant.  The dates relate to the days on which appellant used the car.  However it shows the general fuel consumption but not for all the journeys he made.  That exhibit shows that the fuel consumption varied from 9.02 kilometers per litre to 13.45 kilometers per litre.  It does not indicate whether the variables that affect fuel consumption were there.  A conclusion was drawn that the motor vehicle had an average consumption of 11.88 kilometers per litre.  This is conclusive evidence that the manufacturer’s specification were not applicable in this case, and consumption varied from time to time. That evidence creates a doubt whether appellant used the fuel on official business or not.  In my view the calculation that was used to conclude that he failed to account for 65 litres was based on a fuel consumption of 14.9 kilometers per litre, which was wrong.  I say so because the evidence showed that this rate of consumption varied from time to time and at no stage in exhibit 7 did the car travel 14.9 kilometers per litre.  So in the absence of evidence showing how many litres he must have misused it is difficult to conclude that appellant misused the fuel allocated to him.

I believe appellant is facing a charge that he used a total of 180 litres issued to him and the 43.8 that was top up into the rented car totaling 223,8 litres for a distance of 1523 kilometers which was approximately 6.8 kilometers for a litre.  This is just way below the figures shown in exhibit 7 whose most consumption was at most 9.02 kilometers per litre.  The mathematical calculations might show that the rate of consumption was unbelievably high but all the other variables that affect fuel consumption cannot be mathematically ascertained.  Clearly there is another reasonable explanation as to what happened to the fuel besides that the appellant misused it,   the appeal must therefore  succeed.  Accordingly the following order  is made.

The appeal be and is hereby upheld.

The Respondent is ordered to reinstate the appellant from the date of dismissal without loss of salary and benefits. If reinstatement is no longer an option the parties can agree on the amount of damages, in the event that parties fail to agree on the amount of damages in lieu of reinstatement either party can approach this court for quantification of damages.

There shall be no order as to costs.

Muzangaza Mandaza & Tomana – Respondent’s Legal Pratitioners