Stephen Mudawarima v Zimbabwe Olympic Committee

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/318/24
HARARE 7 JUNE 2024
CASE NO LC/H/175/23
01AUGUST 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE  7 JUNE 2024

01AUGUST 2024

JUDGMENT NO LC/H/318/24 CASE NO LC/H/175/23

STEPHEN MUDAWARIMA	APPELLANT

ZIMBABWE OLYMPIC COMMITTEE	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	- Mr W. Mandinde, Advocate

For Respondent	- Mr T. Mapuranga, Advocate

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of section 92D of the Labour Act chapter 28:01.

The appeal grounds of appeal were ten-fold. It is inexpedient to regurgitate word for word the lengthy grounds of appeal. However, the grounds raise four issues which will be dealt with ad seriatim.

A.1. Whether appellant’s guilt was proved concerning the late filing of 10C returns; In his ruling dated 27th January 2023 the Hearing Authority (HA) opined thus

“The first allegation was that of failure to oversee and supervise the timeous completion of and submission of returns and reports to the International Committee for the year 2021 and 2022 which has resulted in financial support from 10C not being released on time or at all. The big question that needs to be answered in this case is that was there a timeous completion and submission of reports and returns to the Internal Olympic Committee. The Hearing Authority noted that the 2021 acquittals for the activities, grant was supposed to be closed by December 2021 and the latest be by 31st January 2022 but the Activities grant was submitted from ZOC to ANOCA on 29 September 2022. The employee did not dispute the delay …Whilst it is on record that the financial support was finally released it still equally remains a serious act of misconduct to the Chief Executive’s Office as such conduct possess serious potential risk of financial support being withheld. The Hearing authority noted that from the evidence adduced and from the employee’s admission of the date when the returns were finally submitted,

it clear that the timeous completion of and submission of returns. The hearing authority therefore finds the employee guilty as charged.”

This finding and conclusion was corroborated by the report of the Z0C Ad hoc Working Group appointed by Respondent’s board. It is dated 16 November 2022.

“Paragraph 26. There was a long delay in concluding the process of reporting on and Accounting for the 2021 ZOC Activities programme.

This is a serious matter as admitted by the CEO.

The delay in reporting and accounting resulted in funds allocated for 2022 (USD 125,000-00) not being made available by Olympic Solidarity up to mid-November leaving Z0C in a situation where the bulk of the funds will have carried over to 2023. The other implication is the lost opportunity for impactful activities in 2022.”

In his 1st ground of appeal, appellant argued apropos submission of returns to 10C that “nothing was placed before the Hearing Authority to bind the Appellant with the timelines that he should have complied with. This argument ignores the above report by the Working Group which implicated him. The report was served on him and it constitutes evidence against him. Further he has not sought to discredit the report. It is thus concluded that the HA’s conclusion was properly supported by evidence.

Whether appellant’s guilt was proved concerning the blazers and scholarship issues:

(a) The Hearing Authority (HA) determined the scholarship issue thus,

“The second allegation was that of failure to act on scholarship affected programme (relating) to Denilson Cyprianos, one of the 10 athletes on Olympic Solidarity

Scholarship which resulted in the delayed and lost time to release funding for the remaining 9 athletes’ preparations for PARIS 2024. It was the employee’s defence that he acted on the case of Denilson Cyprianos. He produced some e-mails and correspondences in which the issue of the athlete was deliberated. The complainant submitted that the evidence of the e-mail concerning how the issue of one athlete was not the issue but the issue was on the delay of other 9 (nine) athletes at the expense of one athlete…

The employee was asked if it was not possible to process the release of funding for the other 9 (nine) athletes. His response was that it was possible but one need to write a covering letter in support of the omission of the other athlete on the scholarship. He also indicated that he wanted to ensure that all athletes’ funding was processed once. It was therefore clear that whilst the issue of Denilson Cyprianos was being resolved the defendant was still expected to process the funding of the other (9) nine athletes who

stand to be prejudiced by the issue of one athlete.  The Hearing authority therefore finds the

defendant guilty as charged.”

In his 2nd ground of appeal appellant stated that no evidence was led on the issue. The ZOC ad hoc report noted that

“27. There was a long delay in decisively dealing with the issue of the swimmer who was ultimately withdrawn from the Olympic Scholarship Programme. This is another serious matter. The impact was that the rest of the scholarship athletes (9 out of 10) could not get their allocated funding from Olympic Solidarity until this matter was resolved in October or November. The unfortunate part is that the affected athletics lost valuable time and momentum in terms of preparations for Paris 2024 and this loss is difficult to overcome …. In such a situation, there is need for the CEO to proactively engage the relevant parties seeking an early resolution to the situation rather than risk plunging everybody into a crisis situation by waiting for one party or the other to communicate which is a reactive approach.”

The report is documentary evidence which the HA correctly relied on in convicting appellant. (b). The Hearing Authority determined the blazers issue as follows,

“The Hearing authority noted that on the purchase of blazers the employee did not proffer at least two quotations as per the procurement policy. The Hearing authority noted that the issue of blazers was deliberated in the Board Meeting. The Hearing authority noted that there was no evidence placed on record to show that indeed at two quotations were produced for auctioning. The employee maintains that there was no prejudice to the company as the individual board members were going to pay from their own pockets…

The subsequent endorsement by the Board was done under the impression that the Employee had religiously followed the procurement procedures. The Hearing authority therefore finds the defendant guilty of failure to follow procurement procedures and to carry out due diligence in the verification of the supplier.”

In his 6th ground of appeal, appellant stated that

“The Hearing Authority grossly erred and misdirected itself in finding that the Appellant failed to follow laid down procurement procedures when evidence was led to show that the purchase of blazers was not being done by the Zimbabwe Olympic Committee but by individual and the fact that the Hearing Authority accepted the evidence of an already discredited 1st witness whose evidence on a similar charge embarrassed the employer and caused it to withdraw the charges.”

Indeed, the charges of irregular procurement of motor vehicles were dropped. Apropos blazers, the ZOC Ad Hoc report noted

“On blazers it was noted and confirmed by staff that the purchase of blazers was to be at  personal expense of the board members. The role of the treasurer in procurement required clarification from a governance point of view….

Members were instructed to visit the supplier for just fitting and size confirmations and not for payments. At the Board meeting, it was agreed that each member would pay for their jacket. Payment was to be made on delivery of the product.”

It appears that the Ad Hoc report confirms appellant’s position that the purchase of blazers was “not being done by the Zimbabwe Olympic Committee but by individual…” As such no goods were being procured for ZOC. Ergo irregular procurement cannot arise. The Hearing Authority misdirected himself by returning a guilty verdict on the blazers issue.

Whether the alleged poor human resource management was proved:

The Hearing authority noted that

“The fourth allegation was that of unfair labour practice, failure to comply with the law

on management of employee contracts and poor human resources management of team. The Hearing authority noted the following;

a, one of the employees was working with no running contract of employment.

There were some reports findings from three independent sources for harassment and non-conducive working environment.

There was no defined roles or organogram to clearly show where individual employees were placed on the organisational hierarchy, the organogram diagrammatically explained by the defendant during the disciplinary hearing show the CEO at the helm and almost all employees being on the same level save for the caretaker.

There was disparity in fuel allowance thereby causing disharmony among the

employees some who were ordinarily in the same grade …

The employee himself admitted that all the employees are on one level of command save for the caretaker. The Employee admitted the fuel variance some getting 20 litres while others getting 100 litres. He however offers satisfactory justification to such a marked disparity …

It is against all these factors cumulatively considered that the hearing authority accordingly made finding that the Employee exhibited as the poor human resources management.”

The ZOC Human Resources Commission report dated 29 February 2022 noted that

“3 Internal Equity

… The following were the findings:

The audit was not clear on how salary figures for staff members had been

determined,  in  the  absence  of  a  structured  grading  system,  the  hierarchy  in  the organisation could not be confirmed.

It was the audit’s assumption that all Program Officers ought to be earning salaries and benefits which are within the same range. It was however noted that there is a huge disparity in earnings between one programs officer to another.

It was also noted that there is disparity on the fuel allocation which program officers are earning while others were on 20L per month others were earning as high as 100L in a month. Programs officer are expected to attend to some work assignments over the weekend in a situation where they use personal resources.

The compensation structure does not recognize one’s service in the company with some long serving members still being regarded (at) contract workers.”

This HR report confirms the finding by the Hearing Authority. Appellant disputed the finding. His 7th ground of appeal stated

“……...no employee gave evidence on these allegations the reports being relayed on not having been properly tendered in during the hearing and the disparity in fuel allowances having been approved by the board as the Appellant could not pay that which had not been authorised by the board.”

The ground overlooks the fact that evidence was tendered in documentary form. The documents relied on were attached to the suspension letter dated 20th November 2022 which appellant acknowledged through his reply dated 23 November 2022.

The well-founded findings of guilt concerning the I0C returns, scholarships and human resources management justify the guilty verdict returned by the Hearing authority.

Whether the penalty of dismissal was appropriate:

The Hearing authority dealt with penalty thus

“Analysis of the mitigation and aggravating factors:

The Hearing authority however felt that whilst the employee has put forward his detailed mitigation worth consideration a lighter penalty than prescribed in the code will set a wrong precedence as well as creating discord in the application of justice as the acts of misconduct he committed are of serious nature and goes to the flagrant breach of the root of his contract of employment as the Chief executive officer. Consequently, the aggravating factors outweighs the mitigation factors. The Chief executive officer is expected to effectively and efficiently manage the organization which he has unfortunately failed…

In the circumstances the penalty of dismissal is appropriate and the employee is accordingly dismissed from Zimbabwe Olympic Committee as the Chief Executive Officer with effect from the 6th February 2023”

In his 10th ground of appeal appellant argued that penalty was wrong because of “circumstances in which there was need for disciplinary action to be, in the first instance educational and then corrective … Nothing was led before this hearing that any corrective action has been attempted.”

On the other hand, respondent argued in its heads that “the employer took a serious view of the matter. The failings of the Appellant were multiple and far reaching. He was unrepentant. The sentence of dismissal was the only appropriate sentence to be imposed.”

It is settled law that once an employer takes a serious view of a dismissible offence the employer ‘s discretion on penalty cannot be interfered with. (See Celysis v Ndeleziwa 2015 (2) ZLR 62(S) at p. 65F.).

Overall

CONCLUSION

The aforegoing analysis shows that the appeal failed as regards the both conviction and penalty. Therefore, it ought to be dismissed as devoid of merit.

Wherefore it is ordered that

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E