Tanyaradzwa Freddy Govati v Rainbow Tourism Group Limited

### Preamble
Judgment No. SC 66/25
1
Civil Appeal No. SC 335/24
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REPORTABLE   (66)

TANYARADZWA     FREDDY     GOVATI

v

RAINBOW     TOURISM     GROUP     LIMITED

SUPREME COURT OF ZIMBABWE

BHUNU JA, KUDYA JA & MUSAKWA JA

HARARE: 25 NOVEMBER 2024 & 29 JULY 2025

B. Magogo, for the appellant

S. Banda, for the respondent

KUDYA JA:

[1]	The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 27 February 2024.  The court a quo dismissed his appeal against conviction and penalty, which was imposed by a disciplinary hearing officer [DHO] on 7 September 2023.  The conviction and penalty were confirmed by an Appeal Hearing Officer on 25 October 2023 and then by an Appeal Officer on 6 November 2023.

THE BACKGROUND FACTS

[2]   The facts are generally common cause.

[3]	The appellant was employed as an Accommodation Channel Manager by Gateway Stream, a division of the respondent company, for a period of 9 years.  The respondent is a public company listed on the local bourse.  It operates in the hospitality industry where it offers accommodation, catering, conference, events, and beverage services to a wide array of customers.

[4]	During the period between 10th and 14th October 2022, the appellant processed the booking requirements for accommodation of a corporate entity called Feedmix, which was represented by its sales manager, Debra Wolbert. Feedmix was a regular client of the respondent.  The duties of the appellant to Feedmix were firstly, to provide a quotation for accommodation for two people at Short Road Lodge, Kwekwe. Secondly, to provide on request a current tax clearance certificate to the customer.  Thirdly, on proof of payment, to book the client at the lodge in question.  Lastly, in the event that the appellant took leave of absence before completing the booking process, he was to hand over the incomplete booking to his head of office or an associate employee, who would complete the booking.

[5]   The appellant took a medical emergency leave before completing the booking process on 11 October 2022.  He left his station without handing over the incomplete booking.  Whilst off duty, he posted an email to which was attached an expired tax clearance certificate.  He corrected his error with another e-mail at 2am on 12 October 2022.  The client’s delegates arrived at the lodge in the evening of the same day.  They failed to check in because the appellant had not booked them in.  They made alternative arrangements at another lodge in Kwekwe.

[6]  The client submitted the following complaint to the respondent on 14 October 2022.

“You failed to secure accommodation for me.  I told you I was travelling to Kwekwe on Wednesday and could not arrange everything as I would be traveling.  When we reached at the said Lodge we were told that there were no reservations made nor was there any confirmation.  You could not even give me a Tax Clearance on time, instead you gave me useless information which I had not requested, furthermore an expired Tax Clearance which shows you are incompetent and have no customer care at heart.  WhatsApp conversations and subsequent telephone calls prove that I confirmed the booking. Please note that Gateway Stream did not make any bookings.

I am very disappointed by the way Tanya handled my booking.  Furthermore, the receptionist at Short Road was not even helpful instead she presented an attitude that we were annoying her and wasting her time.  Her reception was very cold. We actually had to make ourselves notice (sic) she could not care less.”

[7] The general manager of Gateway Stream conducted a root cause investigation of the complaint.  He found the root cause to be that “unfortunately, no handover of the booking was done either to Alistair or any GS associate to follow up on the booking.”

[8]	On 17 March 2023, the respondent communicated by email a legacy debtors’ policy. The policy directed front line employees, on receipt of enquiries from large group traditional clients for any of the services rendered by the respondent, to refer them to specified key account managers.  They were further instructed not to undertake any booking processes with such clients.  The policy served to limit the respondent’s debt exposure and enforce payment of all outstanding debts from such clients.

[9]	On 21 March 2023, the appellant received an enquiry for accommodation at the Rainbow Towers in Harare for the period 29 March to 1 April 2023 from a Mrs Nyasha Chinanga of the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development (the Ministry).  This was followed by a request for a quotation (RFQ) at 10:40am on 27 March 2023.  He duly supplied the quotation on the same date and requested Mrs Chinanga to submit proof of payment to confirm the booking at 11:53 am.   The Ministry duly paid and submitted proof of payment on 29 March 2023.  On the same day at 12:45 hours the appellant acknowledged payment.  He however advised Mrs Chinanga that her delegates would only be allowed to check in after the Ministry liquidated its outstanding indebtedness in the sum of ZWL$ 44 312 563.

[10]	The delegates could not check in on arrival.  They only managed to do so later that night after protracted negotiations between the Ministry’s top brass and the respondent’s finance director.

[11] Investigations were again carried out on the appellant’s conduct.  The appellant first responded on 30 March 2023.  He was suspended on full salary and benefits on 23 April 2023.  In the response to the suspension, he attached hardcopies of emails he had purportedly sent to Mrs Chinanga on 28 March 2023 advising her that the ministry delegates could not be booked in before payment of the legacy debt.

THE CHARGES

[12]	On 10 May 2023 the appellant was provided with a precis of the charges and summary of facts.

[13]	The appellant was, on the basis of these facts, charged with the contravention of clause 1.2.28 of the Rainbow Tourist Group Code of Conduct.  In terms of clause 1.2.28, an employee commits gross misconduct if he or she engages in any act, conduct or omission, which is inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

[14]	The facts relating to the Feedmix booking constituted the first charge.  The appellant was alleged to have failed to complete a booking of a customer and send it to a virtual partner.  These failures left the customer stranded and caused it to make alternative arrangements.

[15]	The facts pertaining to the legacy debt were split into various counts to constitute the second charge.  The global allegation being that he facilitated the booking of the Ministry by deliberately ignoring standing instructions or established procedures of the hotel.  He did not refer the booking enquiry to the Key Account Manager nor thereafter act on the authority of such a manager.  The result was that he facilitated the booking of a legacy debtor who was disqualified from accessing the respondent’s services because of its outstanding indebtedness.

[16]	The last charge related to the creation and submission of four fictitious emails to the employer in his initial response to the enquiry on his conduct over the legacy debt.

THE INTERNAL HEARINGS

[17]	The appellant appeared before the Disciplinary Hearing Officer (DHO) on these charges on 19 and 23 May and 2, 12 and 23 June 2023.  He was found guilty of all the charges and dismissed from employment with effect from 8 May 2023.

[18]	The Code of conduct has a two-tier appeal process for employees such as the appellant. In terms of clause 2.3.3 of the Code, the first stage of the appeal is to the head of the division.  The second stage of the appeal, in terms of clause 2.3.4 of the Code is to the Head of the Group.

[19]	The appellant’s respective appeals to these two Appeal Officers were both unsuccessful. The head of the division upheld the determination and penalty of the DHO.  The second appeals officer upheld the decision of the first appeals officer.

THE FINDINGS OF THE DHO

[20]	The respondent called the oral testimony of three witnesses.  These were Isheunesu Makambira who took over as the appellant’s head of department from Tinashe Kuvheya.  When the allegations arose, he was the Business Development Manager under the purview of Tinashe Kuvheya.  The second witness was Fadzai Makuvise, a customer reservationist at the Rainbow Towers Hotel in Harare.  She worked in liaison with the appellant.  The third witness was Tawanda Kwidini the Customer Services manager at the same hotel.  The written testimony of the IT expert Mr Kilford was admitted into evidence by consent of the parties.  A root cause analysis report and several emails between the appellant and Mrs Chinanga and Feedmix and WhatsApp screenshots from the appellant’s cellular phone were produced by consent.

[21]	The appellant was a witness in his own defence.  He also called the testimony of Mrs Chinanga.

[22]	The DHO found that the respondent had established on a balance of probabilities the following facts.  The appellant did not conduct a hand over takeover of the incomplete booking of Feedmix.  He continued to work on the booking off work.  He forwarded an expired tax clearance certificate to Feedmix, which disabled Feedmix from making payment for the booking.  The Feedmix personnel did not receive his correction email as they were already travelling to the venue.  His conduct in failing to handover the incomplete booking resulted in his further failure to complete the booking and send it to the virtual partner, Short Road Lodge.  He was responsible for the misfortune that visited the Feedmix personnel.  His conduct in failing to handover and complete the booking was in breach of the reasonable expectations of his employer in carrying out his contractual obligations.  He was guilty as charged.

[23]	Regarding the appellant’s interactions with the ministry, the DHO made the following findings.  The evidence of Fadzai Makuvise demonstrated that an email on the policy on legacy debtors was dispatched to all heads of department.  Isheunesu Makambira established that the instruction was disseminated by Tinashe Kuvheya to the appellant, in his presence.  Indeed, appellant confirmed that he received the instruction.  His attempts to water it down as a mere discussion did not affect its efficacy, nature and scope.  When the appellant dealt with the Ministry, which turned out to be a legacy debtor owing millions of Zimbabwe dollars to the respondent, he deliberately ignored the instruction.  His defence witness, Mrs Chinanga, also confirmed that she was only advised of the legacy policy by the appellant after she had paid for the delegates who were expected to check in on that very day.  She unwittingly confirmed that the appellant committed the act of misconduct that he was charged with.  He was also guilty as charged.

[24]	The DHO further found that the appellant deliberately attached printouts of his draft emails in order to mislead the respondent that he had, even before the ministry paid for the booking, despatched an email alerting the ministry that they would not be allowed to check in after payment.  The DHO found such conduct unbefitting of an employee in the position of the appellant.

[25]	The DHO therefore found the appellant guilty of all the charges that were levelled against him.

[26]	In considering the appropriate penalty, the DHO weighed both the mitigatory features against the aggravatory ones.  He found that the aggravating features far outweighed the mitigatory ones.  He considered that the actions of the appellant in regards to the Feedmix saga were a costly administrative blunder.  The conduct offended the sensibilities of a regular customer and had the effect of blunting the respondent’s competitive edge.

[27]	On the Ministry debacle, he held that the reputation of the respondent was tarnished.  An ugly scene developed when the delegates who had paid were denied accommodation. The exigencies of the situation forced the respondent’s finance director to suspend the policy for these delegates.  The ugly scene would have been avoided had the appellant complied with the policy.

[28]	He was satisfied that the two infractions went to the root of the contractual relationship between the appellant and his employer.  The employer took a dim view of the conduct. The appellant failed to show that his conduct was trivial, inadvertent or unintentional.

[29]   The DHO thus imposed the penalty of dismissal.

[30]	The two appeals to the head of department and head of the group were premised on similarly worded grounds.  All the grounds of appeal impugned factual findings.  The appeals were both dismissed in turn by these appeal officers.

THE APPEAL BEFORE THE COURT A QUO

[31]	Irked by his dismissal from employment, the appellant appealed to the court a quo on seven grounds.  These, in paraphrase, were that the second appeal officer grossly misdirected himself in the following respects:

1.1	He upheld the findings of the two earlier hearing officers that the inconsistency to the appellant’s contract of employment arose from the appellant’s failure to handover an incomplete booking, when it ought to have arisen from his failure to complete the booking and send it to the virtual partner.

1.2	Alternatively, even if the charge was proved by the failure to handover the booking, Feedmix personnel were not stranded or failed to check in because of such a failure but because they did not provide proof of payment.

1.3	He upheld the charge on the further basis that the appellant provided an expired tax certificate, yet the appellant was not charged with an expired tax certificate.

1.4	He upheld the finding that the legacy debtors’ policy was in existence and was communicated to the appellant, contrary to the countervailing evidence of Isheunesu Makambira, Fadzai Makuvise and Tawanda Kwidini.

1.5	The alleged fictitious emails were actually draft emails which the appellant submitted to his head of department by mistake and without any intention to deceive.

2.	The penalty was harsh and did not warrant a dismissal for a first offence.

3.	Alternatively, the dismissal was harsh in that the appeal officers and the two lower tier officers failed to seriously consider that the employees who allowed the Ministry delegates to check in had not been charged and punished for doing so.

[32]	The appellant sought the success of the appeal with costs, the vacation of the appeal officer’s decision, its substitution with verdicts of not guilty and reinstatement without any loss of pay or benefits from the date of dismissal.  In lieu of reinstatement he prayed for damages as agreed or failing agreement, as computed by the Labour Court.  In the alternative, he sought partial success of the appeal only in respect of the penalty, substitution of the penalty by a final written warning valid for 6 months and reinstatement without any loss of pay and benefits from the date of dismissal.

THE FINDINGS OF THE COURT A QUO

[33]   The court a quo was not impressed by the appeal and gave short shrift to the appellant’s submissions.  By reference to each of the adverse findings of the DHO against the appellant, the court a quo held that the proved acts, conduct or omissions were “in direct contradiction to what is expected of a person of your calibre and position in the business.”  With particular reference to the first ground of appeal it found that the evidence led at the hearing established the appellant failed to complete the booking and hand it over to the virtual partner-Short Road Lodge.  He failed to do so because he did not handover the booking when he went off duty.  Instead, he continued to handle the booking and inconvenienced the client by sending her an expired tax clearance certificate which she could not use to make payment.  It therefore found “the quibble about details” raised by the first two grounds to be baseless.

[34]	Regarding the attacks on the findings relating to the policy on the legacy debt by the Ministry, the court a quo contrasted the evidence of Isheunesu Makambira and that of the appellant.  Isheunesu Makambira stated that, in a meeting they both attended, Tinashe Kuvheya, who was their head of department, relayed the instruction from the respondent’s management.  It was that all business enquiries from large group traditional clients were hence forth to be directed to Key Account Managers who would advise how such business was to be handled. In his testimony the appellant conceded that such a meeting was called.  He referred to the instruction from his head of department as “a discussion to say if you receive big groups check to see who is the accounts manager to handover any booking to.”  The court a quo held that the finding that the appellant conducted himself contrary to what was expected of him by his contract of employment was established on a preponderance of probabilities.  It could therefore not be assailed on appeal.

[35]	The court a quo did not interfere with the penalty.  It was satisfied that the correct principle enunciated in the cases of Standard Chartered Bank Zimbabwe Ltd v Chapuka SC 125/04 at p 8 and Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S) at 218H-219A, were properly applied.

THE GROUNDS OF APPEAL

[36]   Aggrieved by the dismissal, the appellant appeals to this court on the following grounds.

“1.	The court a quo grossly erred and misdirected itself in failing to determine the issues raised in grounds of appeal 1.2 and 1.5 relating to the actual reason for the non-completion of the Feedmix booking and whether or not appellant had sent fictitious e-mails to a client.

2.	The court a quo erred in not interfering with the appellant’s conviction in respect of the Feedmix matter in spite of its acceptance that the allegation as framed in the charge letter and the findings of the respondent were misaligned.

3.	Having accepted that the appellant had sent a corrected tax clearance certificate to Feedmix on the same day, the court a quo grossly erred in failing to set aside the finding that appellant was culpable for the non-completion of the booking in circumstances where client had not made a payment.

4.	The court a quo grossly misdirected itself in failing to exonerate the appellant, in respect of the legacy debt charge, even where respondent had failed to lead any evidence on any written policy on handling legacy debt clients, its communication to appellant and the modalities of its implementation.

5.	Having found that the legacy debt allegations were predicated upon a failure to follow standing instructions or procedures, the court a quo grossly misdirected itself in failing to reduce appellant’s dismissal penalty to final written warning in accordance with clause 1.2.22 as read with 1.3 (b) of the respondent’s code of conduct.”

THE RELIEF SOUGHT

[37]	The appellant seeks the following main and alternative relief.

WHEREFORE appellant prays that the appeal succeeds with costs and that the judgment of the court a quo be set aside and substituted with the following:

“i.    The appeal be and is hereby allowed.

ii.	All the decisions of the appellant’s internal disciplinary and appellate authorities be and are hereby set aside.

iii.	Appellant is hereby acquitted from all charges and is therefore reinstated to his position without loss of salary and benefits with effect from the date of his dismissal.

iv.	If reinstatement is no longer possible, respondent shall pay appellant damages in lieu of reinstatement to be agreed between the parties failing which either party may approach this court for quantification.”

ALTERNATIVELY, the appeal succeeds with costs and that the following order is made:

“a. The judgment of the court a quo be and is hereby set aside.

The matter be and is hereby remitted back to the Labour Court for a hearing de novo before a different judge.”

THE SUBMISSIONS BEFORE THIS COURT

The appellant’s submissions

[38]	Mr Magogo for the appellant submitted that the court a quo erred at law in failing to determine two critical issues placed before it.  The first was the failure to decide whether or not the appellant forwarded fictitious emails to the ministry.  The second was whether or not the appellant was properly found guilty of conduct which is inconsistent with the fulfilment of the express or implied terms of his contract of employment.

[39]	Counsel contended that in ground 1.5 in the court a quo, the appellant impugned the appeals officer’s confirmation of the finding that the appellant had forwarded fictitious emails to the ministry.  Mr Magogo contended that the court a quo did not relate to that ground of appeal in its judgment.  He therefore prayed that the judgment be vacated on that basis.

[40]	Counsel further argued that the confirmation by the court a quo of the conviction on the Feedmix charge was flawed.  He contended that the facts upon which the charge of inconsistent conduct was premised related to the appellant’s failure to complete a booking and forward such booking to the Short Road Lodge.  However, instead of convicting him on these allegations, the DHO did so on the basis that the appellant failed to conduct a handover to his superior officer or any of his associates.  Counsel contended by reference to the case of Nyarumbu v Sandvik Mining & Construction (Zimbabwe (Pvt) Ltd 2013 (2) ZLR 10 (S) at 14G-15B that it was unfair for the court a quo to uphold a conviction based on facts that did not form the basis of the charge. Counsel further argued that the finding by the court a quo that the appellant was quibbling about details constituted an acceptance that the details sought to be proved were indeed different from those upon which the conviction was based.  Mr Magogo therefore submitted that, the court a quo ought, for that reason, to have set aside the conviction on the Feedmix charge.

[41]	On the Ministry charge, counsel made the following contentions.  The witnesses called by the respondent did not establish the procedure to be followed by a recipient of a booking enquiry from a large group traditional client.  These witnesses did not specify how the appellant was supposed to relay the enquiry to the Key Account Manager.  The witness Fadzai Makuvise confirmed that appellant was not on the list of the employees who received notification of the legacy debt policy by email on 17 March 2023.  Further, the defence witness Mrs Nyasha Chinanga also confirmed that appellant sent her the email on 29 March 2023, in which the appellant stated that her delegates would not be allowed to check in unless the outstanding legacy debt of ZWL44 312 563 was settled before hand.  Counsel therefore argued that as the appellant was demonstrably unaware of the policy, he was improperly convicted of the second count.

[42] 	Mr Magogo further argued that, the conviction based on the submission of unsent emails to the appellant’s head office during the investigation of the legacy debt charge, should be set aside on the basis that the court a quo did not relate to it.

[43]	On the penalty, he argued that the court a quo misdirected itself by failing to reduce the penalty.  The contention was premised on the fact that before the 10 May 2023, the respondent intended to charge the appellant with a lesser charge of failing to follow standing instructions or established procedures under clause 1.2.22 of the code of conduct.  This lower charge attracts a penalty of a final written warning for a first infraction. Despite the elevation of the charge to conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment, so argued counsel, the appellant should rightly have been sentenced to the lower penalty.

[44] 	In engagement with the Court, he submitted that, where the facts pertaining to the breach could found both a lesser and a higher charge, the very presence of a lesser charge in the code of conduct disentitled the employer from preferring the higher charge.  Counsel, however, conceded that, being the dominus litis, the employer had the discretion to prefer the charge it deemed fit.  It became clear in answers to further questions from the Court that counsel was in reality not attacking the propriety of the conviction but the penalty.  This was on the basis that the appellant’s conduct did not go to the root of his employment contract.

The respondent’s submissions

[45]	Mr Banda for the respondent submitted that the appeal ought to be dismissed for lack of merit.  Counsel contended that the appellant was charged with conduct inconsistent with his duties, which bound him as the accommodation channel manager, to facilitate the booking, firstly, of the client, Feedmix.  Secondly, of the large group traditional client with a legacy debt, the Ministry in compliance with the standing instructions that related to legacy debtors.  Counsel contended that the DHO enumerated the facts, which had not only been alleged in respondent’s summary of facts but had also been proven in evidence that satisfied the charges.   The established facts in relation to Feedmix were that the appellant, firstly left his station without completing the booking. Secondly, he forwarded a wrong tax certificate which incapacitated the client from making the required payment.  Thirdly, he left without conducting a hand over of the incomplete booking, which handover would have ensured the completion of the booking.

[46]	Counsel further contended that the appellant could not, without contradiction, argue that he failed to complete the booking because the client did not pay when the non-payment resulted from his admitted provision of an expired and invalid tax certificate to the client.  He therefore submitted that, the further finding by the court a quo that the failure to complete a booking was a direct result of the submission of the invalid tax clearance certificate was unassailable.

[47] 	On the legacy debtor, Mr Banda made the following contentions.  The appellant conceded the existence of the legacy debtor policy.  He further conceded receiving the instruction.  His contention before this Court was now that the identities of specific legacy debtors were not availed to him.   Counsel argued that the instruction indeed did not identify specific legacy debtors but it directed all frontline officers to communicate with key account managers once they received business enquiries from large group traditional clients. The appellant conceded that he had previously dealt with the Ministry of Agriculture before the instruction was issued.  He also admitted that the Ministry was a large traditional client. Counsel further argued that, in these circumstances he ought to have referred the business inquiry to the key account manager before facilitating the booking. He did not need to do so after he had facilitated the booking. His admitted conduct constituted a breach of the standing policy and met the full requirements of the charge.

[48]	Mr Banda, also contended that the charges based on the Feedmix and Ministry of Agriculture factual conspectus were established.  He therefore submitted that the appellant could not successfully impugn his convictions.

[49]	On penalty, by reference to the cases of Toyota Zimbabwe (Pvt) Ltd v Posi 2008 (1) ZLR 173 (S) and Malimanji v CABS 2007 (2) ZLR 77 (S) at 80C, counsel submitted that the court a quo could not interfere with the sentencing discretion of the internal hearing officers in the absence of gross misdirection.  He also argued that the appellant failed to persuade the court a quo that his infractions were excusable, trivial or inadvertent and thus liable to a lesser penalty. On the authority of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A, counsel submitted that the requisite threshold for interference with the sentencing discretion of the court a quo and the lower tribunals was not met.

[50]   Mr Banda therefore prayed for the dismissal of the appeal.

THE ISSUES

[51]    The issues that arise from the grounds of appeal and submissions before this Court are the following:

1.	Whether or not the court a quo dealt with all the issues before it.

2.	Whether or not the appellant was guilty of conduct inconsistent with his contract of employment.

3.	Whether the court a quo was correct in upholding the penalty of dismissal.

ANALYSIS

Whether or not the court a quo dealt with all the issues before it.

[52]	The first ground of appeal impugns the alleged failure by the court a quo to relate to grounds 1.2 and 1.5 in the notice of appeal before it.  The first concerns the failure to advert to the reason advanced by the appellant for the non-completion of the Feedmix booking.  The second relates to the emails attached to the appellant’s initial response on 28 April 2023, to the investigations of the legacy debt.  The court a quo found that the charge in respect of the failure to complete the Feedmix booking was on the evidence proved and that the appellant’s objections about the details of the charge were baseless.

[53]	In dealing with the contention on the purported factual misalignment covered in ground 1.2, the court a quo juxtaposed Feedmix’s complaint in respect of the expired tax clearance certificate against the appellant’s admission and made the following finding.

“The details which emerged from the hearing spoke to the same charge involving the same customer Feedmix. Appellant’s conduct in serving the customer was found inconsistent with the terms of his employment contract. Appellant acknowledged the disservice in the hearing [of sending an expired tax clearance certificate to the client].

This Court is satisfied that the charge was failure to complete a booking which was proved on the evidence provided. The quibble about details of the charge is baseless.”

[54]	The position is that the charge concerned the appellant’s failure to abide by the conditions of his employment.  The facts which informed the Feedmix charge were the common cause facts that, firstly, the appellant did not complete the booking process initiated by Feedmix.  Secondly, he did not submit any proof of payment to the virtual partner, which would have obliged the virtual partner to reserve accommodation for Feedmix personnel.  Thirdly, he could not complete the booking because he submitted the wrong tax clearance certificate to Feedmix.  Fourthly, the provision of the wrong tax certificate disabled Feedmix from making payment.  Fifthly, the appellant did not hand over the Feedmix booking to his immediate head or any of his associates, as he was required to do by the terms of his contract, before he took emergency medical leave. Lastly, had he handed over and not clung to the booking, the tax clearance fiasco would have been averted by a fresh mind and the booking would have been completed.

[55]	These intertwined facts were all proved.  They all constituted the Feedmix charge.  It was therefore remiss of the appellant to attempt to delink the incomplete booking from the failure to handover the booking.  The court a quo thus related to ground 1.2.  In doing so it essentially made the correct observation that the appellant was missing the forest for the trees by quibbling over small details.  Put differently, the court a quo correctly found that the charge of failing to complete the Feedmix booking had been proved by the evidence led before the DHO.

[56]	It is correct that the court a quo did not deal with ground 1.5 in its judgment.  It is also correct that it is a misdirection for a court to fail to advert to all issues before it unless the issues so determined are dispositive of the case.  See Gwaradzimba NO v CJ Petrow & Co (Pty) Ltd 2016 (1) ZLR 28 (S) at para [23]-[24], PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors 2016 (2) ZLR 14 (S) at 18H and Nzara & Ors v Kashumba & Ors 2018 (1) ZLR 194 (S.)  The failure by the court a quo, to deal with ground 1.5 is not prejudicial to the appellant. See Chidembo v Bindura Nickel Corporation Ltd 2015 (2) ZLR 25 (S) at 27C.  Firstly, the ground was not dispositive of the appeal a quo. Secondly, it is also not dispositive of the appeal before this Court.  Thirdly, the position that this Court has come to in regard to this appeal would make it unnecessary to remit the case to the court a quo to deal with that issue.  Lastly, though this Court is not a court of first instance, a proper consideration of the evidence adduced before the DHO establishes the correctness of his conviction on that charge.

[57]	The effect of the above findings is that the first ground of appeal is devoid of merit and ought to be dismissed.

Whether or not the appellant was guilty of conduct inconsistent with his contract of employment.

[58]   The second issue for determination arises from grounds, 2, 3 and 4.  They challenge the propriety of the Feedmix and Ministry of Agriculture convictions.

[59] 	The court has already dealt with the propriety of the Feedmix conviction in paras [54] and [55] of this judgment.  The court a quo dealt with the issue of misalignment between the facts constituting the charge and the facts upon which the Feedmix verdict was founded.  This Court finds no misdirection in the reasoning process of the court a quo and the internal hearing officers.  The complaint of Feedmix is fully captured in para [6] of this judgment.  It formed the basis of the first charge.  The facts that form the essence of the complaint were established on a balance of probabilities.  In cross examining Isheunesu Makarimba, appellant’s counsel at the hearing, Mr Chambati, basically conceded the propriety of the charges and presaged the correctness of the convictions.  I reproduce the relevant question and answer at p 132 of the appeal record:

“Q. 	We are saying he committed a very minor offence, but you have now chosen to charge him with a very serious offence, is that fair according to you?

This is a catalogue of offences which all of them sum up to go to the inconsistency conduct offence. If you actually get into the merits of the case, you can actually see that there was omission that was done and inconsistent conduct if you look at charge 1.2 that shows you the inconsistency; it is the same with charge 1.4”

[60]	In this regard, the pronouncement of this Court in the Sandvik matter, supra, is apposite.  The Court stated at 14G-15A that:

“It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged. The reason for this is obvious, viz., the person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of s 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice. See Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S) 314 at 316E-317G.”

In casu, the DHO did not find the appellant guilty of a different offence. The appellant was not ambushed at all. The question of his failure to handover the booking was fully ventilated in his statement of defence and during the proceedings before the DHO. He could therefore not claim for the first time on appeal before the court a quo that the conviction based on the failure to handover the booking was unfair to him. After all, the failure to handover the booking demonstrated his failure to complete the booking and his inevitable failure to advise the virtual partner. He, in this Court’s view, could only expect to be acquitted by the Labour Court because he was innocent. See Air Zimbabwe (Pvt) Ltd v Mnensa & Anor SC 89/04 at p 6.

The Court is satisfied the attack on the propriety of the conviction arising from the Feedmix convictions is unmeritorious.

[61]	The court is also satisfied that the appellant was correctly convicted over the Ministry booking charge.  It was clear from the testimony of Isheunesu Makarimba and Fadzai Makuvise that in terms of the legacy debts policy the appellant was required to refer the Ministry of Agriculture to the Key Account Manager.  The Key Account Manager would either handle the client himself or allow the appellant to do so after advising him of its legacy status.  The appellant conceded under cross examination that his head of department had instructed him on the essentials of the legacy policy before he facilitated the Ministry’s booking.  A proper consideration of all his responses during the investigation, his statement of defence, his evidence in chief, his responses under cross examination, the affidavit and testimony of his defence witness show that he was implicitly pleading guilty to the charge.  He admitted to facilitating the booking.  That was the charge.  He denied checking in the Ministry delegates.  That was not the charge.

[62]	The court a quo, therefore correctly upheld the conviction on the charge arising from the Ministry booking.  The fourth ground of appeal is thus devoid of merit and ought to be dismissed.

PENALTY

[63] 	The law on the appropriate penalty for the charge of conduct inconsistent with the fulfilment of one’s express or implied terms of contract is settled.  Once the initial hearing officer is satisfied that the employer takes a dim view of the offence and finds that it goes to the root of the contract of employment and exercises his or her discretion to dismiss, his penalty is generally unassailable.  The employee in the position of the appellant can only successfully breach this impregnable finding on appeal if he is able to convince the appellate court that his conduct was trivial, inadvertent or excusable.  See Innscor Africa (Pvt) Ltd v Chimoto SC 6/12, Toyota Zimbabwe v Posi, supra, Standard Chartered Bank Zimbabwe v Chapuka, supra.

[64]	The Court is satisfied that the appellant failed to establish this lower threshold which would have entitled the internal appeal officers, the court a quo and this Court to interfere with the sentence.  He has also failed to show that the court a quo grossly misdirected itself in the exercise of its discretion in declining to interfere with the sentence.  The threshold enunciated, inter alia, in the cases of ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S) at 940F and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-D has not been satisfied.

[65]	The fifth ground of appeal is also unmeritorious.

COSTS

[66] Costs must follow the result.

DISPOSITION

[67]   It is accordingly ordered that:

“The appeal be and is hereby dismissed with costs.”

BHUNU JA		:	I   agree

MUSAKWA JA	:	I   agree

Chambati, Mataka & Makonese Attorneys at Law, appellant’s legal practitioners.

C Kuhuni Attorneys, respondent’s legal practitioners.