Buhera Rural District Council v Joyce Mandipaza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/246/2023
HARARE 19 JULY 2023
CASE NO LC/H/25/23
31 AUGUST 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 19 JULY 2023

31 AUGUST 2023

JUDGMENT NO LC/H/246/2023 CASE NO LC/H/25/23

BUHERA RURAL DISTRICT COUNCIL	APPELLANT

JOYCE MANDIPAZA	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	- Mr J. Zviuya Attorney

For Respondent	- Mr T. Nyamucherera, Attorney	-

MUSARIRI, J:

On the 13th December 2022 at Harare, the Exemptions Committee (EC) of the NEC Rural District Councils issued a determination. It ordered appellant (employer) to reinstate respondent (employee) or pay her damages in lieu of reinstatement.	The employer then appealed the determination to this Court in terms of section 92 D of the Labour Act Chapter 28:01 hereafter called the “Act”. The employee opposed the appeal.

The octet grounds of appeal raise basically one issue which is dealt with below.

Whether the employee was correctly found guilty of wilful disobedience of a lawful order:

The notification of hearing dated 11th November 2018 is filed of record. It listed 3 counts of misconduct including

“Second Schedule 8(d)vi wilful disobedience to a lawful order whereby you did not perform complete duties of your accounts clerk...”

The employer’s case was that the employee as an Accounts Clerk was required to do a daily hand-over of transactions. The requirement dates back to a memo issued by its Chief Executive Officer (CEO) on 30th November 2015, The employer stated that the employee

“a. On the 24th October 2019, Ms Joyce Mandipaza did not complete her work. She She did not prepare receipt summaries of handover for all transactions performed in the social amenities account. Usually the handover summaries were supported with actual documentation, which would have transpired on that day

She printed some handover summaries for other accounts such as Admin and HR she printed them at 4:13pm and supporting documents for the summaries at 4:17pm.

On the following accounts she did not print the summaries she later printed them on the 29/10/2019 that is Education and Health, Natural Resources 10.47am and Solid Waste

The handover takeover, which was supposed to be done on a daily basis, was not complied to and the organisation was not able to get all transactions that transpired that day at social amenities.

On the 14th May 2019, they held a finance departmental meeting where Ms L Munyeza chairing, Mr Magomana, Mr Mukundidza, Ms Mandipaza, and Ms Zondo Minuting. They discussed many issues one of them which were cause for concern, was bullet 2c (handover summaries to be updated and checked daily).”

The Disciplinary Authority found the employee guilty of wilful disobedience of a lawful order. The rationale for the verdict is captured in her determination thus,

“The fact that the respondent was able to discuss in detail the handover process is evidence that she was aware of what needs to be done on the handover process. This supports the fact that the issue of handover was discussed in the meeting…On a balance of probabilities the employers handover process is common cause and the disciplinary authority dismisses the argument that there was never an instruction for handover summaries to be done. The respondent argues that as part of custom and practice the handover summaries were not done the same day. Doing things outside instructions or standing procedures does not take away from the fact that instructions were not followed.”

The Appeals Committee upheld the decision of the disciplinary authority. The matter then went on appeal to the Exemptions Committee which made the following findings.

“1, The Committee finds that the decision of the Disciplinary Authority was not made by the Disciplinary Authority Mrs Ross Nhamo of Distinctive Consultancy as appointed…

The Committee also finds that the decision of the Appeals Committee was not made by the Appeals Committee….

The Respondent failed to prove the elementary constituency of the charge of disobedience to a lawful order to find Appellant guilty of such misconduct,

The whole disciplinary procedure conducted by the Respondent and the Disciplinary

Authority has serious procedural and substantive irregularities which vitiates the Proceedings at the instance of the Appellant.”

As correctly argued by appellant in this Court, the EC fell into error in sitting as a review court. Its remit was to consider the substantive correctness of the determinations of the lower tribunals. In other words its appeal powers were confined to the “four corners” of the record before it including the impugned determinations. As an appellate body there was no basis for the findings numbered 1, 2 and 4. If any party required a review they should have petitioned the Labour Court in terms of sections 89(1) and 92 EE of the Act.

The 3rd finding was within the Exemptions Committee’s remit. However it made the wrong call. It found that “…it has been sufficiently demonstrated by the Appellant that the evidence sought to be relied on does not constitute lawful instructions or orders given by a person in authority.” The same argument was rehashed by respondent in this Court. It was argued that the relevant memo by the CEO was issued before respondent joined appellant. The CEO’s instruction amounts to a standing instruction which applied to all accounts clerks, present or prospective. The same instruction was refreshed in a meeting attended by respondent. Therefore the argument that no lawful instruction was issued does not bear scrutiny.

In an event, the finding by the Disciplinary Authority that there was a lawful order issued is a finding of fact. Such findings cannot be reversed by an appellate tribunal in the absence of a finding of irrationality.

See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S) at 670C

No irrationality in the decisions of the Disciplinary Authority and Appeals Committee in casu was shown to justify the EC’s ruling. On the contrary it is the EC’s decision which appears as irrational. In all the circumstances, the appeal being well-founded ought to be allowed.

Wherefore it is ordered that

The appeal be and is hereby allowed;

The decision of the Exemptions Committee of the NEC Rural District Council is set aside and substituted thus

“The employee’s appeal is hereby dismissed”, and

Each party shall bear its own costs.

J-U-D-G-E