Allen Pasirayi & Helper Ncube v City of Masvingo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/04/2017
MASVINGO, 11 NOVEMBER 2016 &
27 JANUARY 2017
CASE NO LC/MS/24/2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/MS/04/2017

MASVINGO, 11 NOVEMBER 2016 &			     CASE NO LC/MS/24/2016

27 JANUARY 2017

In the matter between

ALLEN PASIRAYI						1ST APPELLANT

And

HELPER NCUBE						2ND APPELLANT

Versus

CITY OF MASVINGO					RESPONDENT

Before the Honourable Maxwell J

For the Appellant	H Tavengahama  (Trade Unionist)

For the Respondent    J Mupoperi (Legal Practitioner)

MAXWELL J:

This is an appeal against the decision of the respondent’s appeals committee to dismiss the appellants. The first appellant was employed by the respondent as a buyer whilst the second appellant was employed as a stores controller. On 18 March 2016 the appellants faced allegations of breaching the respondent’s code of conduct. They were accused of:

Delaying the processing of users’ requests on various occasions;

Issuing verbal instructions to Errand Management (Pvt) Ltd;

Issuing verbal instructions to Praymost (Pvt) Ltd;

Processing WARAPP (Pvt) Ltd’s order without approval and

Loosing important documents like ZESA statements.

After the appellants had responded to the allegations three charges remained. A disciplinary hearing was held and the appellants were convicted. The appellants appealed to the Manpower Appeals Committee. The committee altered the penalty of dismissal to a written warning after finding the appellants not guilty of habitual/substantial unsatisfactory work performance but guilty of failing to follow laid down procedures. The head of department appealed against the decision of the Manpower Appeals Committee to the Special Council Appeals Committee. The Special Council Appeals Committee reversed the decision of the Manpower Appeals Committee. A dismissal penalty was imposed after  a finding that the appellants contravened section 5.5.2 of the code, habitual/substantial unsatisfactory work performance.

The appellants were aggrieved and appealed to this court on the following grounds:

The appeals committee erred by contending that the appellants were guilty of a misconduct of habitual/substantial unsatisfactory work performance in terms of section 5.5.2 of the City of Masvingo Code of Conduct 2012. The first appellant’s alleged issuance of a verbal instruction to Praymost (Pvt) Ltd to provide service against procedure did not constitute habitual/substantial unsatisfactory work performance and also the alleged failure to action/process for about three months the purchase of various materials for the construction of Francis Aphiri School Administration Block did not happen at all, first appellant never delayed processing the orders as alleged.

The second appellant did not fail to supervise the first appellant on the above alleged offences.

The appellants state that they did not commit the said misconducts as alleged by the head of department. All that they did was above board.

The appellants raised critical points in limine before the appeals committee which the committee because of its biasness (sic) and predetermination in the matter chose to ignore them (sic) and proceeded with the hearing.

That the appeals committee could not proceed to hear the matter because the time allowed for it to dispose of the matter had lapsed.

That the Head of Department in its (sic) alleged appeal did not raise any grounds of appeal as provided in the code of conduct. The Head of Department only did so when she filed her submissions, therefore there was no appeal before the appeals committee, instead the head of department ought to have noted an application for condonation of late noting of appeal.

The appellants pray that the decision of the employer be quashed and be replaced by an outright reinstatement order.

In response the respondent disputed that the appeals committee erred in finding the appellants guilty of habitual/substantial unsatisfactory work performance. It asserted that neglecting to issue an official order to Praymost (Pvt) Ltd for over a month constituted substantial unsatisfactory work performance as it was against procurement procedures.  This was coupled with the failure to action/process the purchase of various materials for the construction of the Francis Aphiri School Administration for over three months. A strategy called “Project Management by Stage” was allegedly used without authority thereby potentially exposing the respondent to possible price increases. The respondent also averred that the second appellant failed to ensure that the first appellant availed a proper official order to Praymost (Pvt) Ltd for over a month. It further averred that allowing first applicant to delay purchasing building materials for over three months amounted to failure to supervise. The respondent pointed out that the points in limine raised by the appellants lacked merit and were therefore rightfully dismissed. The respondent prayed for the dismissal of the appeal.

The fourth ground of appeal is complaining about procedure and alleged bias. It is trite in terms of section 92 EE of the Labour Act [Chapter 28:01] as amended, bias and procedural irregularities are grounds of review. The rules of this court separate the procedures to be followed in noting an appeal from those in applying for review. Rule 15 of S I 59/06 governs appeals whilst Rule 16 governs reviews. Rule 15 (3) provides that if a litigant wants to note an appeal and seek review at the same time, that must be done using different forms. The appellants have not done so. I therefore find that ground of appeal number four was improperly included and will therefore disregard it.

Grounds of appeal one, two and three deal with two issues which I will consider below:

Whether or not the issuance of verbal instructions constituted habitual/substantial unsatisfactory work performance

Section 5.5.2 of the respondent’s code of conduct as revised in 2012 deals with habitual/substantial unsatisfactory work performance. It states:

“It is an act of misconduct if an employee neglects his/her duty, if he/she does not perform his/her duties at all, wilfully or half performs it, or abandons it or does not care whether his/her job is done or not and engages him/ herself in other unauthorised activities during working hours.”.

Paragraph 3.4 of the respondent’s procurement procedures deals with the evaluation of quotations and issuance of an official order. It states in 3.4.5

“The buyer who is the secretary of the committee shall issue an official order upon approval by management and communicate with all suppliers who submitted quotations” (underlining for emphasis)

Mr Tavengahama argued that there is no indication that the appellants frequently and regularly repeated the said misconducts to qualify to be called habitual. He also argued that their conduct was neither proved to be of considerable quantity or significantly great to qualify to be called substantial. He made reference to the Merriam-Webster’s Dictionary. The appellants are not disputing the issuing of verbal instructions by the first appellant. They however argue that such a practice was common. Paragraph 22 of the appellant’s heads of argument states that the first appellant forgot to issue a written order due to pressure of work. It is common cause that the written order was only given after a month. The second appellant did not do anything for the whole period in which the first appellant had not complied with the procurement procedures.

Page 18 of the record shows why the respondent challenged the decision of the manpower appeals committee and maintained that the appropriate charge against the first appellant is habitual/substantial unsatisfactory work performance. Three reasons are given. Firstly that a period of more than one month before an official order was issued was substantial and unsatisfactory work performance. Secondly that even though the excuse given was that the buyer was conducting an end of year stock take, the stock take was conducted from 28 December 2015 to 30 December 2015 yet the verbal order was issued on 15 December 2015. Thirdly that the city treasurer was not advised of the issuing of the verbal instructions and that the presence of the Praymost (Pvt) Ltd truck in Gweru which was given as the reason for the urgency was not corroborated by anybody else.

The respondent had also argued that the charge was appropriate for the second appellant as firstly there was substantial unsatisfactory work performance in not seeing anything wrong on the first appellant neglecting to issue an official order for more than one month. Secondly the issuing of the verbal instruction was not communicated to the City Treasurer or the Deputy City Treasurer and the presence of the Praymost Truck in Gweru was not corroborated by anybody else.

In its findings, the special council appeals committee stated that the giving of verbal instructions is a function which could only be exercised by the Head of Department in consultation with the Town Clerk. It further found that the processing of  a purchase order would not require a lot of time The committee concluded that both the appellants deliberately abandoned their work. These were factual findings by the special council appeals committee. It is trite that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to he evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion. See Hama v NRZ 1996 (1) ZLR 664.

The appellants also argue that there are a plethora of other transactions that were processed verbally by other employees who were never charged for them. The appellants claim that the parity principle ought to have been applied. Page 23 of the record shows that this argument was raised before the special council appeals committee. The City Treasurer disputed the giving of verbal instructions without the concurrence of the Town Clerk who is the Accounting Officer. As stated above the special council appeals committee made a finding that verbal instructions could only be given by the Head of Department in consultation with the Town Clerk. I therefore find that no basis has been given for this court to interfere with the finding of the special council appeals committee.

Whether or not there was a delay in purchasing building material for the construction of the administration block and whether or not such delay constituted habitual/substantial unsatisfactory work performance

The appellants dispute that there was a delay in purchasing any building materials for the Francis Aphiri School Administration Block. They argue that they agreed with the user department to apply the management by stage approach. The respondent argued that the appellants delayed by over three months in processing orders for the construction of the block. Further that the appellants were aware that the orders had to be processed promptly so as not to potentially expose it to price increases. The special council appeals committee made a finding that:

When the first appellant proceeded on study leave, he handed over the work to a fellow workmate with an instruction to process the purchase orders as a matter of urgency, which was a clear indication that he failed to perform his duty in time.

The second appellant allowed the first appellant to proceed on study leave and agreed that outstanding work be handed over to a workmate with an instruction to process the purchase orders as a matter of urgency, which was a clear indication that the second appellant failed to supervise the first appellant to complete his duties in time.

As in the first issue dealt with, the committee made a factual finding which cannot be interfered with unless found to be irrational. See Zinwa v Mwoyounotsva SC 28/15. I find no basis for interfering with the finding of the committee in this case.

In heads of argument, the appellants raise the issue that the appropriate charge should have been charged for disobeying/disregarding rules, procedures/practices or failure to follow established procedures, a violation of section 5.3.4 of the respondent’s code of conduct. In my view, where the conduct of an employee falls within more than one section of the code of conduct, the discretion lies with the employer as to which section to use. An employee cannot choose the charge to be preferred against him.

In the final analysis, I find no merit in the appeal and it cannot succeed. Counsel for the respondent prayed for the dismissal of the appeal with costs on a higher scale. I am not persuaded that such costs are warranted in this case, especially considering that the appellants are represented by a trade union. The following order is therefore appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Saratoga Makausi Law Chambers, respondent’s legal practitioners