Union Makumbe v Telecel Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/292/16
HELD AT HARARE 21 MARCH 2016
CASE NO
JUDGMENT NO LC/H/292/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/292/16

HELD AT HARARE 21 MARCH 2016				CASE NO LC/H/1131/15

& 13 MAY 2016

In the matter between:

UNION MAKUMBE					Appellant

And

TELECEL ZIMBABWE					Respondent

Before The Honourable E Muchawa, Judge

Appellant			In person

For Respondent 		Mr Peter Mudzimiri & Admire Chikazaza

MUCHAWA, J:

This is an appeal against a determination of the National Hearing Committee for the National Employment Council for the Communications and Allied Services (hereinafter referred to as the Appeals Committee).

The appellant was employed by the respondent as a security supervisor when he was dismissed from employment with effect from 9 April 2013 following disciplinary hearings.

An initial appeal to the Labour Court following an unsuccessful appeal resulted in an order by consent which referred the matter to the Appeals Committee to be determined on the merits.  The Appeals Committee dismissed the appeal on the merits.

The charge preferred against the appellant was that he had breached category 4, paragraph 3 of the Communications and Allied Services Sector Employment Code of Conduct being the charge of gross unsatisfactory work performance or incompetence.

The allegations were that the appellant had deployed security and/or allowed security services to be deployed to non-existent and undeserving sites, namely Damafalls, Hatfield Telone and Rukudzo Primary School Kambuzuma, resulting in an accumulated loss of about $100 000.00.

It was further alleged that the appellant had not diligently carried out his duties and if he had, the loss could have been averted.

The Appeals Committee confirmed the guilty verdict and dismissal penalty of the disciplinary hearing committee.

Aggrieved, the appellant has lodged this appeal on these grounds;

There is no evidence to support that I deployed security to non-existent and unjustifiable sites.

The particulars of the offence do not satisfy the requirements for a charge of gross incompetence.

The reasons for both the verdict and penalty are so unreasonable that any other court applying its mind would not come to the same conclusion.

The penalty is so harsh that it induces some shock.

The appeal is opposed and I deal with each ground in turn below.

Ground 1 – Whether there is evidence that the appellant deployed security to non-existent and unjustifiable sites

It is the appellant’s case that he is not the one who deployed security to the three sites in question.  He alleges that his direct supervisor, one Lovemore Masvingise deployed security to the Rukudzo Primary School, Kambuzuma site.  In support of this is a letter authored by the said Lovemore Masvingise dated 22 October 2012 directed to Tragic Security Services in which he writes to confirm allocation of sites for security services.  Rukudzo Primary School is listed therein.

The Telecel Zimbabwe managing director is alleged to have been responsible for the deployment of the Damafalls site and for this I was referred to a security service contract signed between the respondent and Trust Me Security on 7 July 2011.  The managing director signed on behalf of the respondent and the Damafalls site is listed therein.

The appellant alleges that he was never responsible for the Hatfield Telone deployment.  He explained that historically the site belonged to Telone but respondent was using it.  There seems to have been a dispute between Telone and Netone who then pulled down the respondent’s equipment.  The appellant alleged that he then never received the relevant communication to withdraw security services and that there was still some Telecel equipment on site.

The respondent counter argues that the charges preferred are not limited to the actual direct deployment of security services to the sites in question.  It is explained that the facts giving rise to the charges are;

that appellant caused the deployment of security to non-existent sites and sites with no economic value.   At Rukudzo Primary School there was no site and the security guard was guarding a maize field, at Damafalls the security guard was guarding a cage and the generator was alleged to belong to a certain shop owner and in Hatfield there were cables and a meter box valued at $960.00

the appellant failed to supervise the deployment of security

the appellant failed to do his job properly and failed to pick the anomalies despite having resources at his disposal and the sites being easily accessible as they were all in Harare.

It is argued that deployment of security does not only mean the giving of an

instruction to a security company to avail itself on the site but includes too the supervision of security companies to ensure maximum security for company equipment and loss control and prevention.

I was referred to the appellant’s job description and the security service contract on page 37 of the record, to show that the appellant was the main security personnel in the company responsible for deployment of security and supervision of security.

Further, it was pointed out that the appellant had not attended to ensuring that his subordinates were tested to drive company vehicles so as to facilitate the visiting of sites, nor had he requested the available pool vehicles.

A further shortcoming pointed out was that the appellant had failed to act on the reports he received from the security companies regarding the status of the sites in question.

It appears to me, that the appellant has only focused, in his defence, on who actually gave the written instruction to the security company thus arguing that he did not deploy/advise/instruct security companies to guard certain places.  This ignores that the particulars of the charges were that he deployed security and/or allowed security to be deployed and also that he did not carry out his duties diligently – including supervision.

The security service contract on page 37 of the record in describing the designated representatives says the following,

“Telecel Zimbabwe’s designated representative Mr Makumbe or such other person as may be subsequently designated in writing by Telecel Zimbabwe with respect to all matters pertaining to security services and security performance hereunder.”

Though the appellant tried to deny the validity of a job description workbook for the chief security officer which he duly signed on 19 September 2012, as being a draft, and referred me instead to the human resources and administration organogram of September 2012, I do not think this changes much.

The organogram though describing the appellant as the security supervisor still shows he would be supervising loss control officers and would report to the security and administration manager L Masvingise who would in turn report to the head of human resources and administration.  Similarly in the workbook as chief security officer, the appellant would supervise loss control officer and report to the administration manager who, in turn would report to the head of human resources and administration.

In my opinion, he would still remain primarily responsible for all matters of security.  The fact that he signed the workbook shows he was bound by the job description as I have not been shown any other alternative job description.

The appellant did not deny that he had a role to play in deployments even though the final instructions may have emanated from elsewhere.  That was part of his job.

I had no sight of any documents to support the claims by appellant of having instituted any investigations.

In the circumstances, based on the evidence led by the witnesses, I find that there was evidence of the appellant having had a hand in the assigning of security companies to the sites in question.  Even if I may be wrong on this, he was proved at least to have failed to diligently carry out his duties.

Ground 2 – Whether a charge of gross incompetence was proved

Appellant relies on the case of Standard Chartered Bank of Zimbabwe Ltd v Chipiningu SC 104/2002 to argue that gross incompetence connotes an entire failure to give consideration to the consequences of one’s action, recklessness, more than ordinary inadvertence or inattention amounting to an extreme departure from the standard of care.

He argues that the actions allegedly done by him do not prove such gross incompetence.

Further, it is argued that he was not timeously informed of his deficiencies, told how to rectify  them and given an opportunity to improve as recommended in the case of Kwangwari v Commercial Bank of Zimbabwe HH/79/2003.

On the contrary the respondent pointed to the following as establishing gross incompetence;

that the appellant was ultimately responsible for security and loss control in the company

that the appellant had both human resources and vehicles available to enable execution of his duties.

that the appellant had no work plan for site visits though he admitted it was part of his duties

that the appellant could not produce any relevant site security reports.

that the appellant caused the deployment of security operated at 24 hours per day for non- existent and undeserving sites.

In the light of the facts outlined, I find that the requirements set out in Standard Chartered Bank of Zimbabwe Ltd v Chipiningu supra are satisfied.

The case of Kwangwani  v CBZ supra refers to probationary contracts and the right of an employer to terminate the contract after a specified period following unsatisfactory performance.

In any event that Kwangwani supra case places a higher standard on senior employees as opposed to ordinary workers doing work of a relatively menial nature.  It is stated that while fair warnings should be given, a duty rests on a senior employee to independently assess his problems and take steps to reform.

I have not been shown any evidence of such efforts by the appellant.  I find therefore that the charge of gross incompetence was proved.

Ground 4 – Propriety of the penalty imposed

The appellant argues that the charge was not proved nor were the mitigatory factors considered.  He claims not to have benefited financially from the offence and that, in the circumstances, the penalty imposed incudes a sense of shock.

On the contrary, the respondent argues that the hearing committee properly exercise its discretion in the circumstances and this court should not interfere with the penalty imposed.  It is also argued that the aggravating factors far outweighed the mitigatory factors and the dismissal penalty is provided for in the Code.

The principle has now been firmly established that an appellate court will not interfere with an exercise of discretion by the employer unless there has been a misdirection in the exercise of such discretion.  Innscor Africa (Pvt) Ltd v Chimoto SC 6/2012;

Malimanji v Central Africa Building Society 2007 (20 ZLR 77 (S) at 79; Toyota Zimbabwe v Posi SC-55-07; Tregers Plastics (Pvt) Ltd v Sibanda & Anor SC 2212.

In the circumstances, there being no misdirection shown to me, I find the penalty imposed to be one I cannot alter.

Ground 3

I believe I have already canvassed the reasonableness of both the verdict and penalty in addressing grounds 1, 2 and 4.

Accordingly the appeal be and is hereby dismissed for lack of merit.