Zimbabwe Revenue Authority v Neville Manyemwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/521/2016
HARARE, 28 JUNE 2016
9 SEPTEMBER 2016
CASE NO LC/H/999/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/521/2016

HARARE, 28 JUNE 2016 &				         CASE NO LC/H/999/2014

9 SEPTEMBER 2016

In the matter between

ZIMBABWE REVENUE AUTHORITY					APPELLANT

And

NEVILLE MANYEMWE							RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	B Chidziva (Legal Practitioner)

For the Respondent     T J Muhonde (Legal Practitioner)

MUZOFA J:

This is an appeal against an order by an arbitrator. The arbitrator ordered that the respondent be reinstated without loss of salary and benefits.

The background to the case is largely common cause. The respondent was employed as a revenue specialist by the appellant. Following alleged misconduct, the respondent together with three other employees were suspended from employment pending investigations. He together with the other employee’s were subsequently charged in terms of the appellant’s Code of Conduct. It was alleged that the employees including the respondent valued motor vehicles without authority and that he used an incorrect procedure in valuing the said motor vehicles.

A hearing was scheduled for 13 October 2010 but failed to materialize. The matter was not determined until thirty days lapsed.

The matter was therefore referred to a labour officer in terms of section 101 (6) of the Labour Act [Chapter 28:01] (“the Act”). Conciliation efforts failed and the matter went to arbitration.

The arbitrator did not set out the terms of reference. Parties have conflicting versions of what the terms of the arbitrator were.

That as it may be the arbitrator made the following order:

“1.	The employer was appointed an acting supervisor and therefore by implication was authorized to value commercial vehicles when he did so.

2.	I therefore order that the employee be reinstated to his position of revenue specialist without loss of pay and benefits with effect from the date of his suspension. The reinstatement is with immediate effect.”

The appellant appealed to this court. The following are the grounds of appeal.

The arbitrator misdirected himself at law in that:

He failed to appreciate on the facts and at law that the respondent improperly valued motor vehicles. He failed to follow the correct procedure in valuing motor vehicles.

He grossly misdirected himself on the facts such misdirection amounting to a misdirection at law in holding that since the respondent was authorized to value motor vehicles, the issue of how the valuations were done becomes academic.

In carrying out the valuations, the respondent was acting outside the scope of his mandate. He was not empowered to value motor vehicles.

The arbitrator misdirected himself in holding that the charge preferred was too harsh.

The arbitrator having ordered reinstatement was obliged to award specific damages as required by section 89 of the Labour Act [Chapter 28:01].

In holding as he did that the respondent should have been treated in the same way as Makuyana yet their circumstances were different.

The Honourable arbitrator misdirected himself in failing to interpret the provisions of section 101 (6) and consequently he failed to appreciate his jurisdiction.

I will address the issue on the arbitrator’s terms of reference since parties are not agreed.. The minutes of the arbitration proceedings were not available to the court for a proper determination on the issue to be made. Sadly when a request was made through the Registrar, the Registrar was advised that the arbitrator had since passed on.

The court will therefore use the information available in the record.

According to the respondent parties agreed that the arbitrator deal with one issue that is whether the respondent was appointed an acting supervisor. The appellant conceded that the procedure for valuing motor vehicles outlined and used by the respondent was correct. So that left one issue for determination.

The appellant denied that parties agreed to refer one issue for determination before the arbitrator. All the issues were live and were supposed to be addressed by the arbitrator

This is a factual issue and can only be determined with reference to the documents filed of record.

Section 98 (4) of the Labour Act [Chapter 28:01] provides for referrals to an arbitrator and provides:

“In ordering a dispute to be referred to compulsory arbitration, the Labour Court or labour officer, as the case may be, shall determine the arbitrator’s terms of reference after consultation with the parties to the dispute.”

In this case the labour officer referred the matter to arbitration, the terms of reference were not set out but the portion where these were to be set out is inscribed.

“Terms of reference to be agreed at pre-arbitration hearing in terms of the views proposed in the attached document.”

Clearly parties were to agree on the terms of reference. The purpose of the process is to curtail proceedings. Where parties find common ground that issue cannot be a term of reference.

Parties refer to an arbitrator issues that are in dispute for a determination to be made.

Consequently the terms of reference inform the submissions to be made before the arbitrator.

Both parties’ submissions before the arbitrator relate to the three issues namely whether the respondent was appointed an acting supervisor, whether the respondent adopted the proper procedure in valuing the motor vehicles and whether the appellant selectively applied the law by charging and dismissing other employees and not dismissing others who had engaged in the same conduct.

In my view if the parties had agreed on one issue, their submissions would have been confined to the one issue only. The court is of the view that all issues were live before the arbitrator. As a result the arbitrator addressed all the issues and made a finding on each one of them.

I therefore find that there was no agreement that the arbitrator deal with one issue.

Having made that finding I will address the grounds of appeal.

The grounds of appeal predominantly raise questions of fact. It is settled that a question of can amount to a question of law where the findings of fact are grossly unreasonable in light of the proved facts. See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S).

The appellant therefore has to satisfy the requirement, that in view of the proved facts in this case the arbitrator made a grossly unreasonable finding. The court will bear in mind that the appellant was expected to prove its case against the respondent on a balance of probabilities. See Zesa v Dera SC 1998 (1) ZLR 500 (SC).

I propose to address the third ground of appeal on which the arbitrator disposed of the matter. The issue is whether the respondent was appointed an acting supervisor.

The evidence before the arbitrator was derived from BC Ndlovu respondent’s supervisor. According to the arbitrator she was the supervisor. At any time she was not on duty she appointed G Kuzanga to be an acting supervisor. She also said all appointments were done through an email.

The respondent conceded that as a revenue specialist he could not valuate motor vehicles.

However he only valuated motor vehicles when he was authorised to do so by Kuzanga. The arbitrator noted that the appellant did not dispute that at one point. B C Ndlovu was not on duty studying at the National University of Technology at the same time Kuzanga was at the Midlands State University. This is the time the respondent was authorised by Kuzanga to valuate motor vehicles.

This evidence relied on by the arbitrator is not what the respondent relied on before the arbitrator.

The closing submissions from the respondent were as follows – paragraph 29 (c) (iii) the respondent said supervisor BC Ndlovu at one point went for studies at the National University of Science and Technology (NUST). “Leaving the claimant (respondent herein) and one G Kuzanga in the commercial sections as supervisors.”

This submission shows that the respondent exercised supervisory roles even in the presence of Kuzanga. The arbitrator ignored this evidence. B C Ndlovu denied that she appointed the respondent to be an acting supervisor.

In paragraph 29 ( c) (v) of the respondent’s submissions before the arbitrator it was said:

“when claimant was not in the acting capacity and Kuzanga was under pressure, Kuzanga would assign the claimant to assist in valuating commercial vehicles.”

There was no mention that the respondent valuated the motor vehicles while both B C Ndlovu and G Kuzanga were away. This point was only flagged and relied on by the arbitrator, respondent did not rely on this issue.

The arbitrator also drew an adverse inference from the appellant’s conduct when it failed to produce e mails appointing G Kuzanga. The arbitrator concluded that there were therefore no such written appointments but verbal appointments as claimed by the respondent.

In my view the arbitrator missed the point. Written proof of appointments were for Kuzanga and not for the appointment of the respondent.

The respondent claimed Kuzanga authorised him to valuate motor vehicles. Neither of the parties called Kuzanga. The arbitrator also did not consider it necessary.

The court using its discretion in terms of Rules 12 (1) and 28 (6) (c) for the clarification of the issue and fair resolution of this case directed that Kuzanga be called and give evidence.

Kuzanga’s evidence was that at no time were both himself and B C Ndlovu away from duty. He also denied that he appointed the respondent as an acting supervisor.

He said he was appointed acting supervisor through e-mails copied to other employees in the section.

He explained why the e-mails could not be produced. It was said the appellant systems had migrated and the e-mails could not be retrieved.

To that extent the failure to produce the e-mails before the arbitrator was not deliberate to conceal evidence nor did it signify that such e-mails were not ever made.

The court is cognisant that Kuzanga’s evidence was not before the arbitrator. However his evidence corroborated B C Ndlovu’s evidence.

As stated before even discarding Kuzanga’s evidence, the arbitrator fell into error. The respondent did not say he acted when both B C Ndlovu and Kuzanga were away. He said in his submissions he acted when Kuzanga was actually on duty. He was assigned the duties because there was a lot of work.

This was denied by B C Ndlovu.

In my view the appellant proved its case on a balance of probabilities. There was a gross misdirection on the facts.

The ground of appeal is meritorious and therefore upheld.

The second ground of appeal impugns the arbitrator’s findings that since the respondent was authorised to valuate motor vehicles, the issue on how the valuations were done became academic.

Clearly this ground of appeal should succeed. It does not naturally follow that where one is authorised to valuate motor vehicles they would carry out the duty in accordance with the prescribed procedure.

The arbitrator was duty bound to address the issue as it was placed before him for determination. In the circumstances of this case the arbitrator had found that the respondent was authorised to valuate motor vehicles. The next issue was whether he did so procedurally.

To that extend the second ground of appeal is upheld.

The first ground of appeal is that the respondent used an incorrect procedure when he valuated the motor vehicles.

The arbitrator did not determine the issue. It becomes difficult for the court to determine on the issue in the absence of a finding from the arbitrator. There was a dispute as to the applicable procedure.

In his written submissions the respondent insisted that parties agreed that the procedure he used was the applicable one.

There is inadequate information for the court to make a determination on this issue. In my view the court is not properly placed to make a value judgment on this issue.

However what is clear and accepted by both parties is that the Customs and Excise Act in section 106 provides that the transaction method is the primary valuation method. The respondent did not use it. It was also not in dispute that of the bills of entry that he cleared one bill of entry C 36860 the respondent raised a query notification.

However he did not refer the bill of entry to the valuation section. He proceeded to do the valuations.

Clearly he failed to follow the procedure.

In any event the respondent was not authorised to valuate the said motor vehicles. I will leave the issue open.

The fourth ground of appeal is that the arbitrator misdirected himself in finding that the charge preferred against the respondent was too harsh.

This finding in my view was an obiter statement. It did not affect the order of the arbitrator. The arbitrator did not make an order in respect of the charges.

That as it maybe the position of the law is clear. It is the prerogative of the employer to consider the alleged misconduct and to prefer the appropriate charge.

It is not for the arbitrator or the court for that matter to prefer charges. The duty of the court or the arbitrator is to determine if the charges preferred were proved. See generally Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S).

This ground of appeal is therefore upheld.

I will address the fifth and seventh grounds of appeal simultaneously as they are related. It was alleged that the arbitrator failed to interpret section 101 (6) of the Act and that the arbitrator was obliged to specify the damages in terms of section 89 of the Act.

The powers of arbitrators are set out in Section 101 (6), Section 98 (9) and section 89 of the Act.

The sections give an arbitrator power to deal with a matter where parties have failed to resolve it within thirty (30) days and the matter was referred to a labour officer. The labour officer if he or she fails to conciliate the matter has to refer the matter for compulsory arbitration.

The arbitrator in terms of section 98 (a) has the same powers as the Labour Court. To that extent the arbitrator had jurisdiction to make a determination on damages.

Invariably in making an order for reinstatement the arbitrator should have provided for damages. In Zimnat Life Assurance Limited v George Dikinya SC 30-10 the court held that a failure to order damages as an alternative to reinstatement amounts to a misdirection in law.

The two grounds of appeal are merited and therefore upheld.

The last issue is on the parity principle.

It is not in dispute that the respondent and three other employees were alleged to have committed similar acts of misconduct that is improperly evaluating motor vehicles. They were not treated the same. One F Makuyana was just counselled by the supervisor.

The appellant argued that it was the prerogative of the employer to decide what to do. F Makuyana admitted to the charges and the respondent denied the charges therefore he could not be counselled.

The arbitrator agreed in principle with the appellant’s submissions. An employer is able, at law to treat offenders differently and punish them selectively. See Lancashire Steel v Elijah Zvidzai & Ors SC 29-95. The ground of appeal succeeds.

From the foregoing the appeal has merit. Accordingly the following order is made:

The appeal be and is hereby upheld.

The arbitration award is set aside and replaced by the following:

“The respondent is found liable and dismissed from employment from the date of the arbitral award.

Kantor & Immerman, appellant’s legal practitioner

Muhonde Attorneys, respondent’s legal practitioner