Zimbabwe Revenue Authority v Ronald Tafirenyika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/165/2014
HARARE, 14 JANUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/165/2014

HARARE, 14 JANUARY 2014	    		  	    CASE NO. LC/H/131/13

& 28 MARCH 2014

In the matter between:-

ZIMBABWE REVENUE AUTHORITY					Appellant

And

RONALD TAFIRENYIKA							Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. T. Tandi (Legal Practitioner)

For Respondent		-	Mr. H. Chitima (Legal Practitioner)

MUCHAWA J:

The Appellant is a statutory corporation whose principal function is to act as an agent of the State in assessing, collecting and enforcing the payment of all revenues.  At the relevant time, respondent was employed as a Revenue Trainee by appellant from May 2011 until April 2012 when he was dismissed pursuant to a disciplinary hearing conducted on the 13th of April 2012.  He was charged under Respondent’s Code of Conduct (hereinafter “the Code”) of;

D24 – Colluding with clients to undervalue or wrongly classify goods, or to cause revenue loss and,

D25 – Carrying out any act, which is inconsistent with the express or implied conditions of the contract of employment.

The disciplinary Committee found Respondent guilty as charged and dismissed him from employment.  The Respondent appealed against the determination which was eventually referred to arbitration as it was not heard in time.

The arbitral award which is the subject of this appeal set aside the Disciplinary Committee’s decision to dismiss the Respondent and ordered reinstatement without loss of salary and benefits with effect from the date of unfair dismissal; and alternatively ordered damages in lieu of reinstatement.

The grounds of appeal are summarized below;

The Arbitrator being an Appellate Court erred in law in ignoring and interfering with the factual findings of the disciplinary committee without any factual or legal basis of doing so.

The Arbitrator erred in law in finding that the Respondent did not breach Section D25 of Appellant’s Code of Conduct.

The Arbitrator grossly erred on both fact and law in holding that the Appellant had not proven its case against the Respondent on a balance of probabilities.

The Arbitrator erred in law in finding as he must be taken to have found, that circumstantial evidence is not admissible in labour hearings.

Overall, the Arbitrator erred in law in holding that the Respondent must be reinstated without any loss of salary and benefits or alternatively be paid damages in lieu of reinstatement.

The appeal is opposed with respondent denying every allegation and stating that the arbitrator’s findings cannot be faulted as they were properly arrived at.  I deal with each ground of appeal below:

Ground 1 Did the Arbitrator err in ignoring and interfering with the Disciplinary Committee’s factual findings.

I take particular note of the fact that the Disciplinary Committee in its verdict had found respondent guilty of the two offences charged, that is D24 – Colluding with clients to undervalue or wrongly classify goods, or to cause revenue loss; and D25 – Carrying out an act, which is inconsistent with the express or implied conditions of the contract of employment.

Appellant conceded before the arbitrator that respondent was improperly found guilty of charge D24 by the Disciplinary Committee as no evidence was led to prove that he had colluded with clients to cause revenue loss.  It was further conceded that it was not proved that the respondent had smuggled goods into the country.

Appellant argued that an interference with the factual findings by an arbitrator is only justified where the factual conclusions are irrational and unreasonable.  As stated in Hama v NRZ 1996 (I) ZLR 664 (S) the finding interfered with should have been so outrageous in its defiance of logic that no sensible person who had applied his mind to the question could have arrived at such a conclusion.

Respondent justified the interference on the basis that the arbitrator has powers in terms of section 89 (2) (a) (i) and (ii) of the Labour Act [Chapter 28:01] to conduct a hearing into the matter.  Further it was argued that an arbitrator with an adequate record of proceedings can so interfere.  In this I agree with respondent but the test to be applied before interference is as set out by appellant.  The adequate record should be such as to enable the appellate body to assess whether the conclusions reached are grossly unreasonable in the circumstances.

In the light of the concession by appellant of the improper conviction I find that some of the interferences by the arbitrator of factual findings were justified.

I also failed to find some of the factual findings listed by appellant as factual finding of the disciplinary committee.  The committee did not make the finding that by possessing uncleared goods, respondent not only breached his employment contract but also contravened section 184 (d) of the Customs and Excise Act.

The finding on the seriousness or otherwise of the offence, is, in my opinion, a conclusion reached by the arbitrator after analysis and weighing of the offence, in the circumstances.  I do not think it qualifies as interference with a factual finding.

In the circumstances, I find no merit in this ground of appeal and dismiss it.

Ground 2 Did the Arbitrator err in finding that the Respondent did not breach Section D25 of the Appellant’s Code of Conduct.

It was put to me by respondent that the question the arbitrator had to resolve was whether respondent’s proved acts constituted conduct that was inconsistent with the express or implied conditions of his employment contract.  The common cause conduct was the acceptance of uncustomed goods after they had already left the border and their subsequent discovery in respondent’s bedroom.

The arbitrator’s approach was to establish what respondent’s duties were.  It was established that he did not have the responsibility of clearing goods and he was based in a different department wherein collection of customs duty and clearing of goods were not done.  Further it was noted that as a revenue trainee, the respondent only executes duties as instructed by his Revenue Supervisor.

Charge D25 is about carrying out any act, which is inconsistent with the express or implied conditions of the employment contract.

Respondent’s contract of employment was therefore an important starting point.  Clause 18 of the contract provides that;

“You will be required to devote your attention at work to the affairs of the Authority.  You may not be involved either directly or indirectly, during or after business hours in any undertaking that is adverse to, prejudicial to or competing with the interests of the authority.”

The above clause covers both direct and indirect acts done during and after working hours.  Any conduct that is in conflict with Appellant’s interests is not permitted.

I find that in narrowly considering the duties that respondent was carrying out, outside the broad contractual provisions; the arbitrator erred.  When uncleared goods were found in his bedroom, respondent clearly failed to fulfill his contractual obligations.  He did not take any action to protect appellant’s interests.

Clause 14 of the contract of employment enjoins respondent in his conduct to foster the image of the Authority as one committed to integrity.

I therefore find that the arbitrator erred in failing to apply his mind to the terms of the employment contract on which the charge is based.  I therefore find that Section D25 of the Appellant’s Code of Conduct was breached.  This ground of appeal succeeds.

Ground 3 Did appellant prove its case on a balance of probabilities.

I make reference to my reasoning on ground of appeal 2, above.  In addition I wish to point out that appellant’s burden of proof in this matter was on a balance of probabilities rather than beyond reasonable doubt (See ZESA v Dera 1998 (1) ZLR 500 (S). The common cause facts that respondent was found in possession of uncleared goods contrary to the terms of his contract of employment are sufficient to prove an act inconsistent with the express or implied conditions of respondent’s contract of employment.

I therefore find the the arbitrator erred in holding that appellant failed to prove its case on a balance of probabilities.  This ground of appeal also succeeds.

Ground 4 – Admissibility of Circumstantial Evidence.

Whilst appellant argued that the arbitrator disregarded circumstantial evidence, respondent avers that there is no question arising on the admissibility of circumstantial evidence in labour matters.  It is further argued that the arbitrator did consider the circumstantial evidence before him.  It was argued that in dealing with the circumstantial evidence the arbitrator relied on the case of Attorney  General v Bvuma and Another 1987 (2) ZLR 96 (SC). The case sets out the principle that a court or tribunal can rely on circumstantial evidence to convict a person if such evidence leads to the sole conclusion that the person charged, to the exclusion of any other, committed the offence.

I believe the proper approach in dealing with circumstantial evidence in a civil matter, particularly in a labour matter is as set in Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (h) AT P 184E – 185F.  Because the onus of proof is on a balance of probabilities and not proof beyond a reasonable doubt, the court selects a conclusion which seems to be more plausible from among several conceivable ones, even though that conclusion is not the only reasonable one.

I find therefore that that the arbitrator erred in dealing with the circumstantial evidence as he did leading to his disregarding the logical inferences arrived at by the Disciplinary Committee.

Ground 5 – Appropriateness of the remedy granted.

I have already found that the arbitrator should have found respondent guilty of contravening section D25 of Appellant’s Code of Conduct.  A misconduct of this nature goes to the root of the contract of employment. I am fortified in my reasoning by the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha S-60-03 at page 5 where the Supreme Court held that;

“once the employer had taken a serious view of the act of misconduct committed by the employees 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 than dismissal being available for consideration will not arise.”

Consequently the appeal succeeds on this ground too.

I therefore order as follows:

The Appeal being with merit succeeds with costs.  The arbitral award is set aside and substituted as follows:

“The claim being without merit is dismissed.”

Kantor & Immerman, Appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, Respondent’s Legal Practitioners