Thomas Mavhurumutse v Seed Co. Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/693/2013
HARARE ON 5th NOVEMBER, 2013
CASE NO. LC/ORD/H/92/2011
And 31ST JANUARY, 2014
JUDGMENT NO. LC/H/693/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/693/2013

HARARE ON 5th NOVEMBER, 2013			CASE NO. LC/ORD/H/92/2011

And 31ST JANUARY, 2014

In the matter between

THOMAS MAVHURUMUTSE				–	Appellant

And

SEED CO. ZIMBABWE (PVT) LTD			–	Respondent

Before   The Honourable B.T. Chivizhe

For the Appellant	: Mr. T. Marime (Legal Practitioner)

For the Respondent	: Mr A. Moyo (Legal Practitioner)

CHIVIZHE, J.

The appeal was noted against the decision of the Respondent’s Hearing Officer handed down on 10 February 2011 which decision resulted in the Appellant’s dismissal from employment with effect from the same date.

The material background facts as follows;

The Appellant was employed by the Respondent as an Accounts Clerk. The Appellant was arraigned before the disciplinary hearing on 13 January 2011 facing charges of having committed an act or omission inconsistent with the fulfillment of the express or implied conditions of his employment as defined in Section 4(a) of the National Code of Conduct, Statutory Instrument 15/2006. The Hearing Officer found Appellant guilty on the charges and a penalty of dismissal was consequently imposed on him.

The Appellant was dissatisfied and appealed against his decision. An application for review was also simultaneously filed with the appeal.  The grounds of appeal are as follows;

“1.	the evidence led from the witnesses and the appellant absolved the appellant from any wrong doing and the appellant ought not to have been found guilty.

2.	the Hearing Officer grossly erred in failing to take cognizance of the reporting structure hence the delegation of the blame upon the Appellant. The evidence on record was that the Appellant was merely acting on the order that he received from his superiors.

3.	there was no evidence which was led to the effect that there was an obligation to put a tick in the box for the Nelmah Account yet the hearing officer proceeded to make such a finding.

4.	the hearing officer erred in insisting that there was need to tick the account when there was clear evidence that the ticking of the account would expose an account to editing.

5.	the hearing officer ignored the evidence from Musa Wanjowa which attributed the whole fiasco to system failure. This on its own was supposed to be a ground upon which the appellant was supposed to be acquitted.

6.	the hearing officer grossly erred in holding that the Appellant was aware that Nelmah was supposed to be buying on a cash basis when there was no evidence that this fact was brought to his attention.

7.	the hearing officer ignored the fact that limits could be exceeded due to the debtors section which allowed overrides without the necessary approvals. This was even confirmed by the report which was even done by Mr Wanjowa. This clearly shows that Musa Wanjowa knew what was happening on the ground.

8. 	the hearing officer ignored the evidence that was placed before him by the appellant that there had been no precedent for the ticking of the box and that the ticking of the Nelmah account was the first one.

9. 	the hearing officer grossly erred in holding that the appellant did nothing when he realized that the Nelmah account had reached US$20 000.00 when there is evidence from the minutes to the effect that the appellant approached the Marketing Manager and the Distribution Manager and the Management Accountant over the same issue.”

Although the grounds of appeal are rather lengthy and cumbersome there are in my view only two main issues before the court. The first is whether or not the Appellant was correctly found guilty on the charge by the Hearing Officer taking into account the facts and evidence presented before him. The second issue which follows on the first is whether the dismissal penalty was the appropriate penalty in the circumstances.

The record shows that upon his suspension on 10th January 2011 the Appellant was charged with two charges i.e.

Any act, and/or omission inconsistent with the fulfillment of the express or implied conditions of this contract of employment (Section 4(a) of S.I. 15 of 2006), and/or

Gross incompetence or inefficiency in the performance of his work

The core of the charges was that the Appellant having been employed as Accounts Clerk and being fully versed with the operating systems of his employer and having for the trading year been assigned to debtors section and being directly responsible for maintaining the debtors records including updating approved credit limits, had in August 2010 been advised by Ivan Craig to adjust the Nelmah account to a limit of $20 000. The Appellant had done this but failed to insert a tick in the system to limit the client to buy any products worth or less than the said limit. This had resulted in the debtor-client purchasing seed above the authorized credit limit. The debt had ballooned to US$ 931 735.06. It was Respondent’s allegation that the Appellant had therefore -

failed to protect the company assets in the sense seed exceeding the authorized limit was dispatched,

operated outside the normal business practice expected of his person.

failed to follow proper procedures as detailed in the company’s procedures manual

exposed the company to possible financial loss of US$931 735.00

The Appellant’s response to the charges in the disciplinary hearing was;

he had properly followed the procedures in updating the credit limit in respect of the account,

he had adjusted the account to a limit of $20 000.00 as advised by the Marketing Manager,

he had observed in October that the debtor had exceeded the credit limit,

he had approached his superior Mr Tarusira with the matter. He had also alerted the Sales Office though the Distribution Manager Mr Manuhwa who had advised that all was well.  He advised him not to block the account as sales were processing manual invoice into the system irrespective of the approval limit already exceeded.

He had also engaged the ICT office in a bid to protect company assets.

The Hearing Officer made factual findings that;

The Appellant was well aware of the credit risk associated with the

Nelmah account but failed to correctly set up the account in a manner as

to prevent purchases over the credit limit.

That Applicant had failed to maintain and monitor the Nelmah

account’s debt record.

That he had been aware the debt was on US$83 663.90 on 22

October …and it was on US$450 000 by 20 October ….but the Appellant had relied on one Cassian Manhuwa’s verbal answers instead of blocking the account.

That had  Appellant disabled the account in terms of procedure laid

down the company would not have suffered the potential financial

prejudice of US$931 735.06.

The Appellant was aware the client was on a “cash only” status and

therefore could only purchase on a cash basis

Before the Labour Court the Appellant contends that having noted that the client had exceeded credit limit in October he took reasonable steps to protect company assets. He maintains that he approached Cassian Manhuwa who assured him everything was okay.  His instruction as his superior carried the day. He had also further engaged ITC because he believed the system was not secure enough to protect the client from trading above limit. The Appellant also alleges that the Finance Director having produced before the Hearing Officer a report in which Manhuwa acknowledged system failure the Hearing Officer erred in finding him guilty of the charges.

The Appellant also submitted that the Hearing Officer erred in imposing dismissal penalty considering the mitigatory factors presented which far outweighed the aggravatory factors. It was his further submission that the Labour Court, in view of Section 12(4) of the Labour Act [Chapter 28:01]was obliged to weigh the appropriateness of the dismissal penalty.

The Respondent’s submission before the court was that the Hearing Officer correctly found the Appellant guilty on the charge. The Respondent counsel proceeded to controvert through the minutes of hearing the submissions on the facts by Appellant. In particular the Respondent specifically established based on the evidence in the record that contrary to assertions by Appellant, the complainant Mr Wanjowa in his testimony had not exonerated Appellant.  The Respondent also submitted;

That Appellant’s key duties involved monitoring movement of client’s account. He had however failed to monitor the particular account to ensure did not exceed the credit limit.

That the Appellant had failed to challenge the crucial evidence of witness Robson Madondo who clearly stated that Appellant had brought the Nelmah account to him and he (Robson) had advised Appellant not to authorize and had clearly endorsed “cash only”. Appellant failed to return form to marketing department and did nothing. Appellant failed to cross examine Robson resulting in Hearing Officer accepting the witnesses’ evidence.

How the Appellant had failed to block the account by ticking even when he was aware the account had exceeded.

The court is satisfied on the basis of the facts and the evidence presented before the Hearing Officer  the Appellant was properly convicted on the charge. I was not persuaded by the Appellant’s argument that he, upon noticing the client exceeded limit, had acted diligently to protect company assets, that he had approached Cassian Manhuwa whose advice was that everything was okay, that he was obliged to follow that advice, that he had also engaged ITC department even after taking all the measures the Appellant could not dispute that he failed to perform a function specifically required of blocking the account by placing a tick.

On the penalty the approach by Supreme Court in a long chain of cases last year. See for instance (1) Innscor Africa (Pvt) Ltd vs. Leson Chimoto SC 6/2012; Tregers Plastics (Pvt) Ltd vs. Woodreck Sibanda and Paul Manjoro SC 22/12 and ZB Financial Holdings vs. Mawere Manyarare is that sentencing is a matter of the employer’s discretion. Such discretion can only be interfered with if it is shown that it is afflicted by a serious misdirection. The Labour Court was cautioned not to lightly interfere with the employer’s discretion where the misconduct goes to the root of the contract. The misconduct that the Appellant was charged involved a material breach of trust thus going to the root of the contract. There is nothing in the manner in which the proceedings were conducted and the evidence against him to suggest any misdirection on the part of the employer.

In the circumstances it is clear that there is no merit in the appeal and the same is accordingly dismissed with no order as to costs.

Matsikidze & Mucheche, Appellant’s Legal Practitioners

Kantor and Immerman, Respondent’s Legal Practitioners