Tafara Gumede v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/388/16
HELD AT HARARE 30 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/388/16

HELD AT HARARE 30 MARCH 2016				CASE NO LC/H/07/16

& 23 JUNE 2016

In the matter between:

TAFARA GUMEDE					Appellant

And

ZIMBABWE REVENUE AUTHORITY			Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr S Chako (Legal Practitioner)

For Respondent		Mr M Sinyoro (Legal Practitioner)

MAXWELL, J:

This is an appeal against the respondent’s decision to dismiss appellant from its employ on allegations that appellant committed acts which are inconsistent with the express or implied conditions of his contract of employment.

Appellant was employed by the respondent as a chief investigations officer in the Investigations and international Affairs Division. Following allegations of bribery or alternatively carrying out an act inconsistent with the express or implied conditions of his contract of employment, appellant was charged and appeared before a disciplinary and grievance committee.  The Disciplinary and Grievance Committee found the appellant guilty of carrying out an act inconsistent with the express or implied conditions of his contract of employment.  A penalty of dismissal was meted out against him and he appealed to the Appeals Committee which dismissed the appeal.  Subsequently appellant appealed to this court.

The notice of appeal spans over four pages.  Respondent has however deduced the issues for determination to be the following

Whether or not it was proper to charge appellant on the basis of the expired contract of employment;

Whether or not the appellant could be charged based on the respondent’s code of conduct;

Whether or not the charge preferred against the appellant was appropriate;

Whether or not the appellant was found guilty of the misconduct he was charged for; and

Whether or not the penalty of dismissal that was meted out on the appellant was appropriate.

Appellant did not disagree with the respondent’s summation of the issues for

determination and I will therefore proceed to deal with the matter on that basis.

Whether or not it was proper to charge appellant on the basis of the expired contract of employment

Appellant’s counsel argued that there can be no action for breach of contract where

the contract has already been discharged and that an action for breach only lies where the contract is still in existence.  He further argued that it was improper for respondent to raise allegations of misconduct in terms of an expired contract during the currency of an entirely new contract of employment.  It was argued for respondent that even though the contract had expired it does not mean that either party cannot invoke the said contract should they discover that they had a right that they did not exercise because they were not aware of its existence during the currency of the contract.  Counsel for respondent made reference to the case of Num v East Rand Gold & Uranium Company Ltd 1991 ILJ 1122 where the court stated as follows

“In the exercise of its powers and the discretion given to it, the Industrial Court is obliged to have regard not only and even primarily to the contractual or legal relationship between the parties to a legal dispute, it must have regard to the application of principles of fairness.”

I am persuaded by submissions for respondent.  Section 2 A (2) of the Labour Act	 [Chapter 28:01] provides for the employment of a purposive interpretation model that seeks to achieve the promotion of fair labour standards between parties to any labour dispute.  In my view the matter in casu is akin to where a person commits a crime but subsequently, prior to his conviction, the act he committed ceases to be a crime as a result of either an amendment or repeal of a law.  In such circumstances, G M Cockram in Interpretation of Statutes 3 ed, 1987, P 125 – 126 says

“On the other hand a person can be convicted in respect of an act which was criminal at the time it was committed but subsequently, prior to his conviction, has ceased to be criminal.  This rule derives from the Interpretation Act, 1957 512 (2) (d), which provides that where a law repeals any other law, then unless the contrary intention appears, the repeal shall not --- affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed --- and any --- legal proceeding--- may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed.”  (Underlining for emphasis).

In my view, in as much as one can be held answerable criminally under a repealed law, one can be held answerable under an expired contract.  Appellant argues that the expiry of the contract terminates the employment relationship and therefore there is no employer or employee to talk about.  It is trite that every case must be dealt with in accordance with its circumstances. Appellant’s position would have been persuasive if the parties had separated after the expiry of the contract.  They did not.  Their relationship continued, even though under new terms.  Respondent cannot be expected to turn a blind eye on the misconduct perpetrated under an expired contract by a person who is still in its employ.  That would be contrary to the advancement of social justice and democracy in the work place.  I find nothing amiss in respondent charging appellant on the basis of the expired contract.

Whether or not appellant could be charged based on the respondent’s code of conduct

It was argued for appellant that the code of conduct is not applicable to him as he is

a managerial employee.  It was further argued that the code of conduct was negotiated between the employer and non-managerial employees and therefore it cannot bind managerial employees.  For respondent, it was argued that the code of conduct is applicable as section 2 thereof specifically mentions that managerial employees, among others, are subject to the code.  Respondent’s heads of argument list a number of cases in which the Supreme Court stated that if the code stated that it would apply to all employees, then it could apply to managerial employees as well since they are also employees.   See Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374, Zimbabwe Tourist Investment Company v Gwinyai S-150-97 and Samuriwo v Zupco 2000 (1) ZLR 647.

Appellant’s heads of argument state that the Madoda v Tanganda Tea Company Ltd case (supra) is distinguishable on the basis that in that case the provisions of the code were agreed upon by the parties concerned including managerial employees.  No distinction is made however concerning the other cases referred to in respondent’s heads of argument.  The distinction is without merit if regard is had to the contract of employment signed between the parties.  Pages 805 to 813 of the record contain the contract of employment for the period 1 August 2011 to 31 July 2014.  On page 810 – 811 item 21 states

“You shall be bound by the terms and conditions of employment laid down in the

ZIMRA policies and procedures.  These include, but are not limited to the ZIMRA Code of Conduct, staff handbook and the Policies that are in place at any given time.  You are expected to fully acquaint yourself with the ZIMRA Code of Conduct, staff Handbook and all the Policies at all material times and your ignorance shall not be used as an excuse in the event of breach of the provisions contained therein.”   (Underlining for emphasis)”

Even though appellant might not have been involved in the negotiation of the Code of Conduct, he agreed to be bound by it and cannot be heard to deny its applicability to him when he signed a contract of employment confirming that.  I therefore find that it was proper for appellant to be charged based on the respondent’s Code of Conduct.

Whether or not the charge preferred against the appellant was appropriate

It is argued for appellant that the facts constituting the charge as well as the

evidence led throughout the disciplinary hearing clearly show that the competent charge ought to have been category A offence 6 which reads;

“Performance of duty without the exercise of due care and attention.”

Appellant was however charged of a category D offence which reads;

“25.  Carrying out any act, which is inconsistent with the express or implied

conditions of the contract of employment.”

As stated for respondent, the preference of a charge on an errant employee is the prerogative of the employer.  It is not for the employee to suggest what charge should be preferred.  The record of proceedings clearly shows that the complainant was asked specifically why the charge was preferred and in response reference was made to the contract of employment and the fact that there was no adherence to the investigations manual.  It was stated that the non-adherence goes to the roof of the contract of employment.  I therefore find that the criticism against the charge preferred is not warranted.

Whether or not appellant was found guilty of the misconduct he was charged for

Appellant’s heads of argument make interesting observations on this point.  Whilst

charge 2.1 is quoted, my view is that the interpretation given is not justified.  The charge states that appellant did not carry out the analysis which would have resulted in an analysis schedule.  Para 65 of the appellant’s heads of argument say the allegations are that appellant did not carry out an analysis schedule.  In my view the misdemeanour was the failure to carry out the analysis.  The analysis  would have given the basis of a schedule that would inform the extent or quantum of non-disclosure and this would resultantly feed into the aspect of penalties.  In any event, the outcome of the Disciplinary Hearing dated 10 November 2015 (page 165 – 166 of the record) clearly spells out that the violation was the failure to

Carry out an analysis and produce a discrepancy schedule despite appellant having realised that this was a risky case.

There is therefore no question that appellant was found guilty of the offence he was charged for.

Whether or not the penalty of dismissal that was meted out on the appellant was appropriate

It is argued for appellant that the mitigating factors far outweighed the aggravating

Factors as no prejudice was established and appellant has a satisfactory record of performance and is a first offender.  It was argued further that in view of the compelling mitigating factors in this case, it was wrong for the respondent to impose the penalty of dismissal without affording appellant an opportunity to reform and improve.  As such, it was submitted, a lesser sentence is warranted.  It was submitted for respondent that the transgression had gone to the root of the employment relationship and the decision to dismiss must stand.  Counsel for respondent made reference to the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12 in which DCJ MALABA stated that the issue of prejudice was irrelevant to the assessment of an appropriate penalty where the offence committed involved a betrayal of trust and confidence reposed in the employee by the employer.  In ZB Financial Holdings v Maureen Manyarara SC 3/12 DCJ MALABA states that the reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.  I do not find any misdirection on the part of the Appeals Committee or the Grievance and Disciplinary Committee regarding penalty in this case.  As a result there is no basis for interfering with the penalty meted.  I therefore find the penalty of dismissal appropriate in the circumstances.

When the matter commenced on 17 March 2016 there was an application for postponement on the basis that respondent’s legal officer who was handling the matter was hospitalised.  The application was opposed and proof of the hospitalisation was requested.  I granted the postponement and reserved the issue of costs on the basis that proof of the legal officer’s hospitalisation would be furnished by or before the next hearing date.  The confirmation was provided through a letter dated 31 March 2016.  Indeed the legal officer was hospitalised.  There is therefore no order as to costs regarding the postponement.

Consequently there is no merit in the appeal and the following order is appropriated.

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

Mawire & Associates, appellant’s legal practitioners

Messrs Sinyoro & Partners, respondent’s legal practitioners