Abisai Manyonga v BAK Logistics (Private) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 25TH
JUDGMENT NOLC/H/285/23
CASE NO LC/H/ 378/22
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IN THE LABOUR CCOURT OF ZIMBABWE HELD AT HARARE 25TH JULY 2023 & 29 SEPTEMBER 2023

In the matter between

ABISAI MANYONGA

And

JUDGMENT NOLC/H/285/23 CASE NO LC/H/ 378/22

APPELLANT

BAK LOGISTICS (PRIVATE) LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPELLANT	: IN PERSON

FOR THE RESPONDENT :MRS R MATSIKA

MAKAMURE J.

This is an appeal against the appellant’s dismissal from the respondent’s employ. He appealed internally but the appeal failed. He was aggrieved by that outcome and appeals to this Court on the following grounds:

‘1.The Appeals Officer erred and fell into error by upholding a finding of guilty on all the counts when the Complainant failed to lead evidence which met the essential elements of the misconduct charges.

The Appeals Officer erred and misdirected himself on point of( sic) law by failing to consider that the decision to discharge Appellant on count 1 was irrational and illogical in the circumstances.’

The appellant was employed by the respondent as a Procurement Officer. He was charged with three (3) counts of violating section 4(a ) of the National Employment Code of Conduct

Statutory Instrument 15 of 2006 (S.I.15/06). I will extensively quote from the letter written to appellant by respondent inviting him to a disciplinary hearing as it summarizes the allegations which were levelled against the appellant.

‘4(a) any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; … 3counts

It is alleged that sometime in November 2021 you did not declare that you knew Blessing Mupari. Blessing is one of the directors of Dindad Investments, a supplier you engaged when you facilitated the purchase of the Mazda CX5 worth USD22,780.You went ahead to facilitate the purchase without this disclosure with the material potential conflict and impact on the decision to purchase the vehicle from a supplier where he is one of the directors. You only declared that you knew him from church in February 2022 during investigations surrounding the purchase of the vehicle.

It is alleged that you did not conduct due diligence when you facilitated the purchase of the Mazda CX5. This resulted in the purchase of a vehicle with material mechanical defects. You did not establish the potential cost of the repairs at the time of purchase as such the decision to purchase from Dindad was based on the price without inclusion of the potential costs. The vehicle which then had an engine failure approximately three months after its purchase.

It is alleged that sometime in November 2021 you breached the Procurement Policy and procedures by adding a new supplier Dindad Investments without following due process and authorization.’

Disciplinary proceedings were conducted . He was convicted of all the three counts and penalized with dismissal with respect to the first and third counts. He was penalized with a final written warning with respect to the second count. As already noted, he appealed internally. The Appeals Officer confirmed the convictions and penalties with respect to the first two counts but varied the penalty on the third count from dismissal to a final written warning valid for twelve months. That means he remained dismissed on the first count even though he had achieved a measure of success when the penalty on the third count was varied to a final written warning.

When parties appeared in Court the appellant was adamant that the respondent failed to substantiate the charges against him. On the first count appellant argued that Mupari was not

his personal associate and that this was not proved. He argued that knowing a person does not mean ‘interest’. He continued to argue that conflict of interest was not proved. He further argued that there was nothing warranting disclosure. On the second count he argued that the respondent failed to give evidence. He stated that the vehicle was a recent import from Japan and that one Abygale made a statement (p184)but was not called to testify. He also argued that the respondent had a premeditated position against him. With respect to third count the appellant’s position was that in order to get a clear position on what happens when a supplier is added , his boss ought to have been called to testify. He stated that the vehicle in question could not be supplied by the respondent’s usual suppliers. The appellant submitted that the case against him was not established and warranted interference by the Court.

The respondent on the contrary, argued that the appellant failed to disclose his association with Mupari. It was argued that he had a duty to avoid conflict of interest , no matter how remote. Further ,the appellant signed the form on conflict of interest on 11th March 2021.The case of Zimbabwe Mining & Smelting Company v Zakeyo 2007(1)31 was cited in support of the respondent’s argument. With respect to failure to conduct due diligence on the motor vehicle before it was purchased , it was argued that it was not the user who insisted that the vehicle be purchased but that the user acted on the recommendations of the appellant. It was argued that the appellant was aware of the defects which were on the motor vehicle but he did not take measures to correct the defects. Instead he proceeded to have the vehicle purchased. When an assessment was done the cost of repairs which needed to be done to the vehicle before it was purchased were not included. It was submitted that second hand motor vehicles had to be thoroughly examined before and not after purchase. On the third count it was argued that the process when adding a supplier was not followed. It was also argued that during the disciplinary proceedings the appellant admitted to failing to follow the procedure . For this reason, it was submitted that there was nothing to be proved. On the question of the appropriate penalty it was argued that the dismissal penalty was appropriate .It was submitted on behalf of the respondent that the appeal had no merit and the Court was asked to dismiss the appeal in its entirety. The following are some of the authorities cited in support of the respondent’s case.DD Transport (Pvt) Ltd v Abbot 1988(2) ZLR 92 (SC);Rex v Mosea 1947(3) SA 282 (O); ZINWA v Moyounotsva SC28/15;Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39/2017;Toyota Zimbabwe v Posi SC 55/07; Zimbabwe Platinum Mines (Private) Limited v Godide SC 2/2016.

The respondent has in place a ‘PERSONAL INTEREST DECLARATION’ (declaration form / form) , ( page 215 of the record) . This form was signed by the appellant. Paragraph 4 of the declaration form provides that :

‘4.I acknowledge that any conflict of interest situations , no matter how remote, must be declared and that subsequent undisclosed conflict of interest may result in serious criminal or disciplinary charges together with termination of employment. With the Group.

In that event , I acknowledge further that TSL reserves the right to seek any recourse it may be entitled to at law including the right to claim damages, restitution or refund of any profit or other gain I may have made as a result of such undisclosed interest:’(Emphasis added).

The respondent has also got a procedure to be followed when a new supplier is added to the existing list (pp203-214 of the record). As such any entity had to be approved through that laid down procedure before they could supply the respondent with items like motor vehicles.

From the record ,the following appears not to be disputed. The appellant was known to one Blessing Mupari (Mupari).The appellant and Mupari went to the same church. Mupari was one of the directors of a company known as Dindad Investments (Private) Limited (Dindad). The respondent has a list of approved suppliers . As indicated above there is a process or procedure to be followed before an entity is approved as a supplier for the respondent.

Dindad was not on the list of approved suppliers. The appellant, during the course of his duties, and without declaring that he was known to Mupari, facilitated the purchase of a motor vehicle, a Mazda CX5,from Dindad .The purchase was made on behalf of the respondent. The vehicle was for use by its (respondent’s) Human Resources Manager , a Mr. Chinyowa (Chinyowa). The appellant added Dindad onto the list of the respondent’s suppliers without following the laid down procedure. It is also not disputed that the motor vehicle in question was purchased because Chinyowa had shown interest in it after comparing with other vehicles. However, the duty to ensure that the motor vehicle was mechanically fit for use before it was purchased lay with the appellant as the procurement officer .He had access to the mechanics who would make the relevant assessments before it was purchased. The vehicle was only fully examined after it had been purchased (page 111) . Ideally the thorough examination should have been done before purchase as the vehicle was second hand and would have no warranty. The thorough examination would have exposed

defects, if any , and the possible cost of repairs that would be required. This would then have been properly considered and would have likely affected the purchase price. The appellant’s position seems to have been that he had done this before without encountering any problems. He therefore did not see anything wrong with how the Mazda CX5 was purchased, even though this was a wrong procedure.

As is common cause, a wrong procedure was adopted during the purchase of the motor vehicle with the result that the vehicle had an engine failure three months after purchase. The cost of the repairs far exceeded what had been estimated at the beginning.

With the above facts being common cause, I find it difficult to imagine what the appellant is trying to achieve by averring that essential elements of the misconduct charges were not met with respect to all the counts.

Firstly, the appellant knew Blessing Mupari. He knew him because they went to the same church. It is therefore clear that before the need to purchase a motor vehicle for the respondent arose, the appellant knew Blessing Mupari. Then came the need to purchase a motor vehicle, and the appellant recommended that the vehicle be purchased from a company associated with Blessing Mupari. He did not declare that he knew Mupari. He did

not recuse himself from concluding a business transaction with Dindad. The fact that he knew Mupari only came out during the course of investigations. The declaration form obliged the appellant to declare his conflict “no matter how remote” but he did not do so. In Zimbabwe Mining and Smelting Company v Timothy Zakeyo SC70/06 the Supreme Court at page 11 of the cyclostyled judgment, held that :

‘The duty to disclose does not depend upon proof of the existence of actual existence of conflict of duty and self-interest only. It is sufficient… that there be a potential conflict of duty and self-interest arising from the engagement entered into or about to be entered into by the employee .’

In the present case the appellant knew Mupari as they went to the same church. Mupari was a director of Dindad, a company respondent was about to do business with. The declaration form which appellant signed , became part and parcel of his contract of employment .This obliged the appellant to disclose interest, no matter how remote. As things turned out, the motor vehicle which the appellant was involved in procuring had some defects. This necessitated respondent to institute investigations into the procurement in question . The appellant’s association with Mupari, which he(appellant) may have thought to be innocuous

was exposed. This worked against his favour. The appellant could have avoided this by simply declaring that he was known to Mupari but he did not. No matter how he defines ‘interest’, the declaration form was clear enough. It required the appellant to declare his interest, no matter how remote the association may have been.

Secondly, the appellant only caused a thorough examination of the motor vehicle after it had already been purchased. The initial examination showed some defects but was not extensive enough to enable the respondent to assess the huge costs which were needed in order to repair the vehicle after acquiring it. The appellant gives the impression that the user insisted that this particular vehicle be purchased. This was confirmed by Abygale Marufu(Marufu) in a statement which appears at page 184 of the record. Marufu was not called to testify.

Appellant took issue with the failure by the respondent to call Marufu to testify. However, it is a settled principle in this jurisdiction that there is no need to call a witness where they have submitted a statement . See Smith Chataira v Zimbabwe Electricity Supply Authority SC83/01. It was the duty of the appellant to call any witness or witnesses in support of his case if he was so inclined. He should therefore not blame the respondent for not calling Marufu. At page 106 of the record, the user ,told the Disciplinary Hearing that out of four vehicles which were test driven he settled on the Mazda CX5 .This was on the recommendation that the other vehicles were ‘pricy’. The decision to purchase the vehicle ultimately lay with the appellant after satisfying himself that, not only the user accepted the vehicle in question, but that the cost of the vehicle considering its defects, was acceptable.

The fact that the vehicle was sent for a thorough examination after it had been bought resulted in the finding that excessive costs were required to have it repaired. The purchase was therefore not cost effective. This means that the appellant did not conduct due diligence as he was required to do when procuring the Mazda CX5.

Thirdly, the appellant did not follow the laid down procedure when he added Dindad to the list of suppliers for the respondent. At page 104 of the record the appellant , in response to a question that he had breached the procurement policy reluctantly agreed stating that: ‘ On that one I might say agree since it is in black and white…’ In DD Transport (Pvt) Ltd v Abbot 1988(2) ZLR 92 (SC) the Supreme Court held that where a party has made an admission, it is not necessary for the other party to lead evidence to prove an admitted fact and it is incompetent for the party who made the admission to lead evidence to contradict it. In the present case, it was not suggested that the admission was made in error. There is therefore no reason for any evidence to be led on this count. The admission was sufficient.

From the above, each of the counts was sufficiently proved on a balance of probabilities. There was overwhelming evidence against the appellant on each of the three the counts. It appears as if the appellant was just on a fishing expedition by averring that essential elements of the charges were not met when in truth the evidence was common cause.

Now going on to the question of the appropriate penalty which makes the basis of the second ground of appeal, this is the province of the employer. An appellate court does not lightly interfere with an employer’s discretion to impose a penalty unless such discretion has been exercised improperly. The Supreme Court has held that once an employer has taken a serious view of a misconduct committed by an employee which misconduct goes to the root of the employment relationship such that the employer considered it to be a repudiation of contract and imposed the penalty of dismissal, the question of a lesser penalty does not arise. See Circle Cement (Private)Limited v Chipo Nyawasha SC60/03. In the present case the employer took a serious view of the misconduct and in their discretion imposed the dismissal penalty. The appellant alleges that the decision was irrational and illogical. However, this has not been demonstrated. Further, there is no proof that the employer exercised their discretion improperly. There is therefore no reason to interfere with the penalty.

In view of the foregoing I agree with Mrs Matsika who appeared for the respondent that the appellant was properly convicted and penalized. I find that there is no merit in the grounds of appeal. The appeal must be dismissed for lack of merit.

It is accordingly ordered that the appeal be and is hereby dismissed.

WINTERTONS, RESPONDENT’S LEGAL PRACTITIONERS.