Adrian Abhasi v Quodec (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO. LC/H/41/24
CASE NO. LC/H/848/22
29 JANUARY, 2024 AND 7TH
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 29TH  JANUARY, 2024 AND 7TH FEBRUARY , 2024

JUDGMENT NO. LC/H/41/24

CASE NO. LC/H/848/22

ADRIAN ABHASI	APPLICANT

And

QUODEC (PVT) LTD	RESPONDENT

Before the Honourable Kachambwa J, Judge;

For Applicant:	Mr P. Mufunda (Legal Practitioner)

For Respondent:	Mr T. Runganga (Legal Practitioner)

KACHAMBWA, J:

INTRODUCTION

This is an appeal against the whole appeal determination of the Quodec Appeals Officer handed down on the 19th day of August 2022 in terms of S.I. 15 of 2006.

BACKGROUND

The appellant was employed by the respondent as a technician based at Zimplats Ngezi Turf village. In the week ending 24 June 2022, appellant was tasked to complete a vibration data collection for SMC

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concentration section. The task was to be completed by the 24th June 2022 since the analyst Mr Zulfikar was going on leave from 28th June 2022 and at the same time the customer Zimplats was preparing for a shutdown hence the report for the vibrations was needed urgently before shutdown could commence.

It was alleged that the appellant reported for work on Monday and Tuesday 20th and 21st June 2022 respectively, and later travelled to Harare on the Tuesday. It was further alleged that the appellant did not report for work on Wednesday 22nd June and Thursday 23rd June 2022 but instead was at his homestead in Harare. The senior technician visited the SMC plant on Thursday 23rd June 2022 to check on the progress of the vibration data collection but could not find the appellant on the ground. The senior technician called the appellant on his mobile phone and the appellant responded saying that he was at his home in Harare.

The senior technician had neither approved of the leave nor was he notified of the appellant’s travel to Harare. The appellant alleged that he travelled to Harare because he had requested for a fuel top-up from his supervisor and as per company policy they were only allowed to refuel at Trek Service Station and the nearest Trek was at Turnpike which is 130km away from Ngezi. He alleged that upon his arrival at Turnpike he realised that his fuel card had not been topped and he had no choice but to go to Harare which was nearer than going back to Ngezi.

The appellant did not inform anyone that he had gone home and he stayed home silently for two days until his supervisor called him on his mobile. He did not assign anyone to hold the fort for him in his absence. The appellant’s conduct led to late submission of the reports to the client as the task was only completed on the 29th June 2022. After these occurrences the appellant was charged and convicted of the following acts of misconduct under S.I.15 of 2006 of the National Employment Code of Conduct which reads;

“5.1. S4 (a) any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.

(f) gross incompetency or inefficiency in the performance of his or her work.

A penalty of dismissal was imposed thereafter. His appeal to the Appeals Officer was dismissed hence the present appeal.

COMMON CAUSE ISSUES

It is common cause that the appellant deliberately abandoned work and did not communicate with his supervisors knowing fully well that he had to provide technical services to the respondent’s client which work was to be due on the 24th June 2022 and was delayed only to be finalised on the 29th June 2022 because of his misconduct.

It is also common cause and is part of the record of proceedings that the planned shutdown at SMC was deferred because pre-requisites reports were delayed by the appellant’s conduct. The appellant had been advised of the need to act quickly and get reports which were needed by the respondent’s client for preparations of the shutdown. In addition, the respondent could not send its invoices on time to its client due to the appellant’s misconduct. It is not disputed that at the beginning of the week the appellant requested for a fuel top-up of $70 in addition to the $120 he had already received for the week. It is also agreed that the appellant failed to leave someone at work to stand in for him during his absence.

GROUNDS OF APPEAL

The grounds of appeal brought before the Labour Court are as follows;

“8.1.		The Appeals Officer erred at law by upholding that the appellant had contravened any one of the provisions of Statutory Instrument 15 of 2006 Section 4.

The Appeals Officer misdirected himself on both the facts and the law by finding the appellant had committed dischargeable offence in terms of the guidelines provided by the law.

The Appeals Officer grossly erred at both the facts and the law by finding that the customer and the employer had suffered irreparable harm as a result of the appellant’s conduct without providing any evidence.

The Appeals Officer grossly erred at law by finding that the appellant had failed to communicate his need for more resources to his employer”.

RESPONDENT’S RESPONSE

In argument the respondents submitted that grounds 1 and 2 were too generalised and there was no further response save to make a bald denial. Additionally, ground 3 was denied on the basis that the appellant was dismissed because his misconduct went to the root of his employment contract and on that basis the penalty of dismissal was justified. Lastly, ground 4 was also denied on the basis that it was a gross misconduct of the appellant not to communicate to the respondent concerning his request for additional fuel before travelling to Turnpike to fuel up.

APPELLANT’S ARGUMENT

The appellant submitted that the conviction was premeditated and no careful consideration was given to the evidence presented at the hearing on the record. The appellant submitted that his true circumstances were ignored even the whatsapp messages attached on the record. The illustrations that were ignored served as an explanation to the decision that the appellant made under his peculiar circumstances.

The appellant also submitted that there was no evidence presented by the respondent showing how it arrived to the conclusion that the 70 litre fuel top up was necessary, despite a cogent explanation that the appellant gave. He stated that the decisions he took were in the best interest of the

respondent. It was submitted that since he had communicated his need for more resources to his superiors but never got a response, he could not be asked to do the impossible.

The appellant further submitted that his conduct cannot be classified as a S4 offence more so a dismissible one. The respondent never gave the appellant an opportunity to reform neither did the appellant have any previous record of warnings that could justify dismissal at this instance. Dismissal was unfairly meted given the circumstances of the appellant’s case and evidence he gave. He submitted that he was sort on fuel given the fact that when his work schedule demanded that he works from Ngezi to SMC every day the employer did not adjust his fuel allocation.

The appellant also submitted that there was no evidence that the Appeals Officer did not err at fact and law by upholding that the appellant had contravened section 4 (a) and (f) of S.I.15 of 2006. The appellant submitted that no evidence was led to show that the appellant had acted in a manner inconsistent with his employment.

RESPONDENT’S ARGUMENT

It was submitted that the appellant’s misconduct was further aggravated by the fact that the appellant could have sought assistance from his other colleagues to assist him with transport to and from the site whilst waiting for

his fuel request top up. He could have checked with the Finance team responsible for loading Trek cards before traveling to Turnpike. Alternatively, when he arrived in Harare he should have proceeded to the office to get his issue on fuel sorted but he stayed quietly at his home in Waterfalls.

Respondent also pointed out that it is also clear that the appellant violated an implied condition of employment by failing to advise his supervisor that he was absent from work especially given that he was fully aware of the strict timelines within which the work had to be completed.

It was also submitted that the appellant contravened the express and implied conditions of his employment contract in that he had no regard to submit and obey to his employer’s instructions on making sure he reported for duty and that he completed the employer’s instruction within the specified time limit and failing which to at least inform his supervisor of his absence. The appellant’s behaviour was said to be a blatant lack of respect of the basic principles of an employee and employer relationship and that amounted to a labour offence. It was said to be clear that the Appeals Officer did not err in fact and at law in finding that the Appellant was guilty of an offence in terms of section 4 (a).

It was argued that the Appeals Officer did not misdirect himself on both facts and the law by finding that the appellant had committed a dischargeable offence in terms of the guidelines provided by the law. The right to dismiss is a common law principle and such right is entrenched in our legal system. Essentially, once an employee has been found guilty of an offence under section 4, it means that the employer at its discretion may decide to impose a penalty of dismissal or a lesser penalty than dismissal.

THE LAW

Proof of charges is on a balance of probabilities and looking at the common cause issues the charge was indeed proven. Penalty in misconduct cases is the discretion of the employer.

ANALYSIS

From the facts of the case it is clear that the appellant was guilty of failing to fulfill the express or implied conditions of his contract through his actions when he went home without informing anyone and or assigning anyone to do his work on his behalf. The appellant also performed gross incompetence and substantial negligence in the performance of his duties. The email from Zulfikar was clear that there was a shutdown which was to happen upon the completion of the report by the appellant which was

supposed to be submitted by the 24th June 2022. The appellant’s actions caused the respondent to fail to deliver the services they were rendered for by their client.

Appellant was reckless in his conduct. This was a delicate assignment and yet he treated it like child’s play. His convictions cannot be doubted. Coming to the penalty this was clearly a serious transgression and that was the employer’s view. Once the employer is of this view it is the employer’s discretion as to whether the penalty should be dismissal. That discretion cannot be said to have been abused here. The issue of discretion on imposing penalties has been dealt with in a number of cases such as Hama v National Railways of Zimbabwe 1996(1) ZLR 664 (S), 670C-D and In Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S) where the Court stated:

“The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion……..

It is trite that an appeal court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed must show a serious misdirection to justify interference by the appeal court.”

DISPOSAL

In view of the above analysis the employer’s findings and penalty are in order. The appeal does not have merit.

It is accordingly that the appeal be and is hereby dismissed with costs.