Tanyaradzwa Freddy Govati v Rainbow Tourism Group Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/73/2024
HARARE, 7 FEBRUARY, 2024
CASE NO LC/H/961/23
27 FEBRUARY, 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 7 FEBRUARY,  2024

JUDGMENT NO LC/H/73/2024 CASE NO LC/H/961/23

27 FEBRUARY, 2024

TANYARADZWA FREDDY GOVATI	APPELLANT

RAINBOW TOURISM GROUP LIMITED	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	Mr A. Chambati, Attorney

For Respondent	Ms W. Chirongoma, Attorney

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. Respondent opposed the appeal. The grounds of appeal challenge the propriety of the both conviction and penalty.

Conviction

Appellant was found guilty by the Designated Hearing Officer (DHO) on 7th September 2023. His internal appeal was dismissed by the Appeal Hearing Officer (AHO) on 25th October 2023. The AHO basically upheld the findings and ruling by the DHO. Thus focus shall be on the latter’s ruling.

1

The DHO summarised his findings as follows;

“It is therefore clear and undisputable that you acted in a manner inconsistent with the fulfilment of your express and implied conditions of your employment as Channel Manager for Gateway Stream through;

Failure to do a proper handover of the Feedmix booking resulting in a disgruntled guest.

Failure to implement a standing instruction on how to handle accounts with legacy debts resulting in an ugly scene at Rainbow Towers Hotel reception, disgruntled guests and forcing employer to bend his own instructions which were meant to improve cash flows and avoid further bleeding of the business.

Potentially damaging the relationship between Ministry of Agriculture and the organisation thus jeopardizing chances of future business.

Exhibiting dishonest tendencies and behaviour by trying to use fictitious emails to defend yourself.

The foregoing acts, conduct and omissions by yourself are in direct contradiction to what is expected of a person of your calibre and position in the business.

Verdict

I have accordingly found you guilty as charged.”

It is apparent from the quote that these are 2 (two) incidents involving Respondent’s clients viz Feedmix and Agriculture.

Feedmix: Appellant argued that the charge and conviction were misaligned. This was on the basis that details of the offence differ between the charge and conviction. The charge spoke of failure to complete a booking and send proof of payment to the virtual partner. On the other hand the conviction spoke of failure to handover the pending transaction to his colleague or superior (when he left office to attend to a personal emergency).

It must be noted that Respondent’s letter dated 10th May 2023 charged Appellant with “1.2.28	Inconsistent conduct or omission-Gross.”

The details which emerged from the hearing spoke to the same charge involving the same customer Feedmix. Appellant’s conduct in serving the customer was found inconsistent with the terms of his employment contract, Appellant acknowledge the disservice in the hearing thus;

“TG: I mistakenly sent her the one which had it had a month be expired sorry I submitted wrong one cause that the day I was off, I automatically downloaded it from my email then I send her a wrong one but the same day I send her the correct document if you check the email they are those documents which I send to her.”

This constrasts with the customer’s complaint

“You could not give me a tax clearance on time instead you gave me useless information which I had not requested furthermore an expired Tax Clearance which shows you are incompetent and have no customer care at heart.”

This Court is satisfied that the charge was failure to complete a booking which was proved on the evidence provided. The quibble about details of the charge is baseless.

Agriculture: The DHO found that the policy regarding legacy debts was violated. This was canvassed during the hearing as follows:

“IM:....... The 2nd one was to check with reservations office if they could issue out a booking, invoice I mean or quotation to the said customer because there is a directive that came from the executive that any Ministry or government Ministry be furnished with a new invoice for new business until they have paid up their legacy debt. So that what the process which was supposed to be followed which was not.”

Appellant argued that there was no clear instruction issued to him to justify his conviction. Alternatively he argued that his conduct amounted at worst to the lesser offence namely violation of standing procedure. During the hearing he said,

“TG: Okay there were no guidelines about that for example it was just a discussion to say if you receive big groups check who is the accounts manager to hand over any booking to there was no guideline which was given about that.”

This shows that appellant was aware of the need to refer ‘big groups’ to the accounts manager for amongst other things vetting for legacy debts. Yet he did not refer Agriculture to the Accounts Manager. The Court is satisfied that appellant was properly found guilty of inconsistent conduct. Whether or not the conduct also amounted to a lesser offence under the applicable Code is immaterial.

Penalty

The DHO opined

“        By failing to do handover of the Feedmix booking before going on your off duty

day, you acted in a manner inconsistent with the fulfilment of your express and implied condition of your contract of employment as your conduct resulted in a disgruntled guest. Your conduct of trying to use fictitious emails to clear your name under the Ministry of Agriculture count was gross and confirmation of your culpability in this case. For someone at your level in the business, dishonesty of this magnitude is very grave and not pardonable. In Standard v Chapuka SC 125/04 it was held that a finding of guilt of an act inconsistent with… conditions of a contract of employment prima facie entitles an employer to dismiss an employee from employment, unless the employee shows that the conduct was trivial or inadvertent. In your case, you have not shown that your misconduct was of a trivial nature and or unintentional to warrant a lesser penalty.”

The Appellant did not cite any contrary case authority. It is clear that the DHO applied the correct principles with regards to penalty and relied on apposite authority. There is no valid basis upon which this Court can interfere with the penalty imposed.

Conclusion

It is concluded that the appeal is devoid of merit and ought to be dismissed.

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