Washington Mareya v Zimbabwe Power Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/ 91/2021
HARARE, 10 MARCH 2021
CASE NO. LC/H/67/20
AND 16 JULY 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/ 91/2021

HARARE, 10 MARCH 2021 					CASE NO. LC/H/67/20

AND 16 JULY 2021

In the matter between:

WASHINGTON MAREYA						APPELLANT

versus

ZIMBABWE POWER COMPANY				RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr  B. Magogo (Legal Practitioner)

For the Respondent			Mr T.S. Manjengwah (Legal Practitioner)

MAKAMURE J:

This is an appeal against a decision from the respondent’s Disciplinary Authority (DA).

Mr Mareya, the Appellant was employed by the Respondent as its General Manager, Projects. He was dismissed from employment following disciplinary proceedings on two counts of violating section 4 (a) of the National Code of Conduct S. I 15/2006 as read with sections 14 and 45 of the Public Finance Management Act, [Chapter 22:19] [P.F.M.A.]. Aggrieved by that decision, he appeals on the following grounds and I quote:

“Count 1

1.	The Disciplinary Authority erred in placing undue weight on an audit report which

was not supported by viva voce evidence from either the auditors or the relevant ZPC personnel who were involved in the impugned processes.

2.	The Disciplinary Authority erred in finding the Appellant guilty in the absence of evidence to prove that;

a.	Appellant was contractually responsible for the crafting of request for proposals.

b.	Appellant was personally or otherwise involved in the crafting of the request for the proposals.

c.	Appellant had power to veto the decision made by the Respondent to proceed with the project before carrying out feasibility studies.

d.	Appellant had power to veto the decision and processes of a different department.

e.	Appellant had been requested to proceed to RFP without a feasibility study thus necessitating an objection in terms of Section 14 of the Public Finance Management Act.

3.	The Authority erred in placing undue weight in Appellant’s purported concessions made to characterize the wrong doing done by ZPC management as if they personally appertained to him.

4.	The Disciplinary Authority erred in placing no due weight to the common cause fact that the actions of management in crafting the request for proposal without a feasibility study were ratified by the ZPC Board.

a. A fortirori, the Disciplinary Authority did not decide on the point relating to the effect of the Board ratification on the actions of management.

Count 2

5.	The Disciplinary Authority erred in finding Appellant guilty of approving Payment Release Certificates in the absence of the said certificates.

6.	The Authority erred in failing to find that the responsibility to check the existence or otherwise of an advance payment guarantee rested on the Finance Department which generated payment documentation with Appellant only a mere signatory to the bank.

7.	The Authority erred in having no regard to the effect of political pressure brought to bear on Appellant’s superirors in the consideration of its verdict.

8.	As regards the penalty, the hearing authority grossly erred in its exercise of discretion such error not being contemplated from a reasonable decision maker;

a.	In placing no due weight on the politically toxic environment in which Appellant carried out his duties.

b.	In failing to place due weight on the fact that though he did not object in writing, Appellant had raised a verbal objection and same was not denied by the Respondent.

c.	In accepting, without any shred of evidence, the existence of a supposed breakdown of the substratum of the employment relationship.

d.	In ignoring that the employment relationship had not been severed beyond repair since the Appellant was at work during the full course of the lengthy hearing and was ordered to remain so employed for an additional three months.

e.	In arriving at a penalty that is capricious, irrational and disproportionate thus inducing a sense of shock to any reasonable man.”

The facts of the matter are largely common cause. They are as follows.

As already noted the appellant was employed as the respondent’s General Manager, Projects. In that capacity he had duties which included ensuring that certain processes or procedures were fulfilled before contracts between the respondent and contractors were executed.  He was also one of the respondent’s signatories where and when the release of funds to contractors was necessary. In the year 2013 a company called Intratek Zimbabwe (Private) Limited (Intratek) entered into a contractual agreement with the respondent. The contract was for Intratek to install a Solar Power Station in Gwanda (the Gwanda Project). Before funds could be released to enable Intratek to conduct its work the respondent through the Appellant’s department, was obliged to conduct a feasibility study. Further Intratek on its part, was required to provide the respondent with certain guarantees - Advance Payment Guarantee -  before the funds in question were released. The relevant portions of the contract between the parties are contained in paragraph 5 of the Contract document and read as follows: (P 188)

“(T)his contract shall otherwise commence (the “commencement Date”) in full force and effect on the date when the following conditions precedent (“Conditions Precedent”) are satisfied:

“(a)	…

(b)	the Advance Payment Demand Guarantee is provided to the Employer by the contractor in accordance with Sub Clause 14.2;

(c)	…

(d)	…

(e)	the completion of feasibility studies with bankable findings alignable to the

implementation of the Project.”

It is common cause that the respondent is a public entity and runs on public funds. As such its employees are bound by the provisions of the Public Finance Management Act [Chapter 22:19] [P.F.M.Act.] This serves to ensure that public funds are properly used and accounted for in a transparent manner.

In its deliberations, the Disciplinary Authority found that the appellant was supposed to have ensured that a feasibility study was carried out before the Gwanda Project was commenced. Contrary to this, the Disciplinary Authority found that the feasibility study was not carried out. The failure was attributed to the appellant as head of the relevant deparment. The DA also found that an advance payment guarantee was supposed to have been made by Intratek before the respondent could release funds to it for purposes of the Gwanda Project. It is common cause that Intratek did not provide such guarantee.  The DA found that the appellant was one of the signatories towards the release of funds to Intratek. The DA found that as a signatory, the appellant could and should have withheld his signature since Intratek had not fulfilled its obligation. This would have ensured that Intratek complied first before funds could be released. Contrary to this it was the DA’s findings that the appellant signed for the bank to release funds to Intratek without the necessary guarantee from Intratek. The DA also found that there was a lot of political pressure which was brought to bear upon the appellant. This seriously weighed heavily on the Appellant and appears to have compromised his ability to do what was right. However, as the Disciplinary Authority found, the P.F.M. Act provides that, where an employee is forced to violate the law, he or she should protest in writing in terms of section 14 of the P.F.M Act. It was the DA’s finding that the appellant bowed down to political pressure and did not utilize the provisions of the P.F.M. Act. These provisions are in place to protect him where there was the kind of pressure which he experienced. In view of these findings the DA found the appellant guilty of both counts. As for penalty, the DA after considering both the mitigatory and aggravating features, penalised appellant with dismissal. The dismissal penalty was couched thus:

“Accordingly I hereby direct that the Employee be dismissed within three (3) months from the date of this determination. The three (3) months’ notice period will assist the Employee to gracefully wind up his long career.”

It was submitted on behalf of the appellant that while the respondent submitted in aggravation that the employer/employee relations between the parties had been eroded as the conduct of the appellant went to the root of the contract, the manner in which the dismissal penalty is worded is not testament to this. The manner in which the penalty was couched does not show that the relationship between the parties had soured to the extent expressed on behalf of the respondent.

In Mashonaland Turf Club v Mutangadura SC 5/12 the Supreme Court stated that it is an employer’s right to dismiss an employee whose conduct goes to the root of the employment contract.

This is a situation where the appellant was under immense pressure from the then minister. He (the appellant)  is a technical person who was well aware of the need for a feasibility study to be conducted before work by Intratek commenced. This was his area of specialty. He avers that he raised his concerns verbally. True, he may have raised his concern in meetings. However, he said he had “no guts” to say No. This was because of the pressure. This is where the Legislature comes in. The legislature saw it fit to have in place provisions to cover employees who were likely to succumb to political pressure. In the event of the  presence of such pressure, the appellant was entitled to protest in writing about it as provided for in the P. F. M. Act. The fact that his bosses were under political pressure did not mean that he too should have compromised his professionalism.  Persons like the appellant who are qualified and hold crucial position in public enterprises, should remain professional and conduct their duties accordingly. They should not allow to be compromised professionally. If this is allowed to happen then this would be catastrophic in all public enterprises. The appellant is a professional, who held a senior crucial and strategic position within the respondent organization. He ought to have maintained he professionalism and stood for what is or was right.

The appellant ought to have placed his objection in writing as the legislature provides. This would have protected him. His failure to do so means that he has no leg to stand on. Had he done so both with respect to the feasibility study and the release of funds, this matter, I believe, would have had a different complexion altogether.

The question of leading viva evidence was raised. However, the facts of the matter are largely common cause. There was therefore no need to supplement what is already common knowledge. I do not see how such evidence would have assisted the appellant’s case. In any event in disciplinary matters, the leading of oral evidence and cross examination of witnesses is not required as would be in contested cases before courts of law. In Smith Chataira v Zimbabwe Electricity SC 83/2001 it was held that what is important is that the employee knows the case he is facing and is given an opportunity to state his case before any adverse finding is made against him. Further and as already noted, the facts are largely common cause. The appellant was supposed to ensure that a feasibility study was carried out. He did not do so. The appellant appended his signature to enable funds to be released when he knew that the papers were not in order. So whatever other evidence to have been led, would probably have been mitigatory in nature. What this means is that, as to conviction, it is my considered view that appellant would not have escaped liability in the face of such overwhelming and uncontroverted evidence against him.

In Celsys Limited v Nobert Ndeleziwa SC 49/15 (Celsys) at page 6 of the cyclostyled judgment, The Supreme Court stated that:

“The law is settled that in circumstances where an employer takes a serious view of an employee’s conduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question. The question that then arises, on the basis of the law and authorities on this matter, is whether the appellant judiciously exercised its discretion in deciding on, and imposing, the penalty of dismissal. It is only upon a negative answer to this question, that an appeal court would be justified in interfering with such decision.”

At page 7 of the judgment in the Celsys case (above), the Supreme Court referred to the case of Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR which quoted with approval what the court in Cousten & Co. Ltd v Carry described as a misconduct which under the circumstances of that case may, not have warranted as harsh a penalty as dismissal thus:

“misconduct (which), though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertant, so aberrant or to otherwise so excusable, that the remedy of summary dismissal was not warranted.”

In the present case the misconduct cannot in my considered view be regarded as either trivial or excusable. By any standards the responsibility and trust reposed on the appellant is high. His conduct of failing to ensure that a feasibility study was done where the project in question is of national interest is a serious breach of trust. The same comments hold for appending his signature for the release of public funds where and when this was not proper so to do. This is serious. The employer took a serious view of the misconduct by the appellant. The dismissal penalty was imposed as a result.

From the facts of this case, and as already noted, I cannot say that the conduct of the appellant if proven on a balance of probabilities, was trivial or excusable. It goes to the root of the employment contract. It is serious as envisaged by Section 4 (a) of Statutory Instrument 15/06. So even if the relationship between parties was or remained cordial, that does not detract from the serious nature of the offence committed. The manner in which the penalty is couched would not in my view reduce the appellant’s blame worthiness. The facts, as the record shows, are not disputed.

In Circle Cement v Chipo Nyawasha 6/03 the Supreme Court stated that:

“Once the employer had taken a serious view of the act of misconduct to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

An appellate court has no right to interfere with the findings of a lower tribunal unless it is necessary to do so. This is now a settled position in this jurisdiction. In Christopher Samson v Windmill (Private) Limited SC/15, the Supreme Court held that:

“The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.”

The grounds of appeal raise the question of the appellant not being the person who crafted the contract in question. The appellant may not have crafted the contract in question, however he was charged with ensuring that a feasibility study was conducted. He was also charged with ensuring that the necessary guarantees were in place before he appended his signature to enable funds to be released to Intratek. Difficult as it may have been, had he been the only voice of reason firstly, to protest the absence of a feasibility study, and secondly, to decline from signing, where the necessary guarantees were not in place, he would have averted the present proceedings. He did neither, hence he finds himself in this unenviable situation.

In view of the foregoing, I find that there is no merit in all the grounds of appeal. The decision of the Disciplinary Authority cannot be faulted. In the result the appeal fails.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Makuwaza & Magogo Attorneys, Appellant’s Legal Practitioners

Wintertons, Respondents’ Legal Practitioners