Charles Bere v Astra Industries Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/204/24
HARARE, 5 MARCH 2024 & 3 MAY 2024
CASE NO LC/H/1025/23
In the matter between:-
CHARLES BERE
APPLICANT
ASTRA INDUSTRIES LIMITED
RESPONDENT
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CHARLES BERE

APPLICANT

ASTRA INDUSTRIES LIMITED

RESPONDENT

Before the Honourable Kudya J

For the Applicant

Yeukai Chigodora (Legal Practitioner)

For the Respondent

M.A. Kalira (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent employer’s General Manager where he upheld the guilty verdict and dismissal penalty meted out on appellant employee following allegations of disobedience to a lawful order, fraud and conduct inconsistent with his employment in breach of the respondents’ code of conduct.

Brief fact giving rise to the charges are that appellant was asked to write a report explaining why the respondent company was buying Bermacol at an expensive cost yet it could have obtained it cheap from other suppliers but he did not do so. He was also said to have concealed information to the effect that Sylvester and Kitchen another supplier he was in contact with could sell the product cheaply resulting in expensive purchases being made on the false understanding that there were no other cheaper suppliers. It was also alleged that he acted contrary to his duty by not furthering his employer’s business interests when purchases of the expensive product were made as opposed to settling for the cheaper options. His appeal grounds are summarised as below:-


1) The General Manager grossly erred to conclude that appellant had disobeyed a lawful order yet appellant gave an explanation about the expensive purchases which could be viewed inadequate but inadequacy of the response could not translate to disobedience of a lawful order.

2) The General Manager erred by not realising that appellant did not question the authority of the accountant or the lawfulness of the instruction to the extent that there was no need to cite such an issue in the appeal to the General Manager.

3) The General Manager erred at law by not considering appellants ground of appeal to the effect that there were admissions at the hearing that the server could be tampered with so the emails used before the hearing did not reflect the full communication between the parties as it was tampered with.

4) The General Manager erred by upholding the conviction on fraud yet there was evidence that appellant was given direct instructions to purchase from Al Davies by his supervisor.

5) General Manager erred at law to uphold conviction on fraud yet there was evidence that appellant did not receive proforma invoices from S.K in June 2023 when he made the purchases.

6) The General Manager erred by not realising that the dismissal penalty was gross in its defiance of logic since it was meted where no mitigation had been elicited from appellant.

   a. In the result the appellant prayed that the appeal succeeds, that the guilty verdict and dismissal penalty be set aside and substituted by an order reinstating appellant to his job without loss of salary and benefits or that he be paid damages in an agreed sum by parties or set by the court if reinstatement is no longer tenable.

In response to the appeal the respondent maintained that

1. Appellant defied a lawful instruction if regard is had to the fact that he got a clear and specific instruction on the issue of purchasing Bermacol from expensive suppliers but he did not give that report so such defiance amounted to disobedience of a lawful order.

2. General Manager reasoned properly at law that appellant had defied lawful instructions. Such an instruction was lawful having been given properly by a person in authority. If appellant queried the powers of the one giving the instruction he should have raised that as an appeal ground.

3. Evidence was led on a balance of probabilities sufficient enough to find appellant guilty of the infraction complained about of proved failure to follow lawful order. There was no admission of tampering with the server. Evidence was led that live system could not be tampered with. In the ultimate the appeal ground was insufficient for consideration.

4. and 5

The General Manager was clear that appellant was in contact with the suppliers with cheaper quotations. Appellant made false statements and representations which prejudiced respondent. Appellant was not instructed to purchase from expensive suppliers. The General Manager considered evidence of email communication, mail server log file and submissions made at the disciplinary hearing in upholding the guilty verdict. It is misplaced to state that fraud was not proved.

6. Penalty is at employer’s discretion. Offence went to root or contact so dismissal was the only possible penalty, he disobeyed a lawful order and that alone is dismissable at law.

It is settled that appeal courts are slow to interfere with decisions of trier of fact unless gross unreasonableness is demonstrated. See Hama v NRZ 1996 1(ZLR) 664(SC). In the matter at hand the critical issue to be determined is whether based on all the facts of the matter it can be concluded and that the trier of fact that had lost leave of its senses after it decided to find appellant guilty as charged and penalised him with dismissal. Each of the appeal grounds is discussed below:-

**Ground 1**

A reading of the record before the disciplinary committee and the General Manager shows that Appellant was invited verbally and later in writing to explain why the respondent was buying Bermacol from an expensive supplier and below was his email response:-

“....There was a lot of issues that were being, debated, considered and agreed by the team during the time of purchase and you were also part of the team copied in the mailing list when the decisions were being made……….”

A plain reading of the above text shows clearly that appellant was refusing to write a report as he was being asked to. In fact the tone of the text exudes clear arrogance short of saying to the person asking “Do not ask me anything. I have no duty to explain anything to you”. In the court’s view there is no other characterisation of the text other than that it was just a a show of arrogance and a clear demonstration of disobedience to a lawful order. The court is not persuaded at all that there was an error on the point of the trier of fact in its conclusions that appellant did commit the offence of disobedience to a lawful order. The ground is without merit and should consequently fail.

**Ground 2**

The court is in agreement with the respondent that if appellant had issues with the lawfulness of the instruction or the authority of the instructor that such should have been raised as an appeal issue. Since he did not arise it is therefore of no moment in the case. This ground also being without substance should fail.

**Ground 3**

A reading of the record speaks to the fact that the IT person explained at length that there could not be any tampering with the live system. In any event if such was possible there is no explanation from appellant why anyone would tamper with the emails to cause him to lose his job. In the absence of such a nexus the ground remains baseless and should equally fail.

**Grounds 4 and 5**

These 2 grounds are discussed in the same paragraphs as they speak essentially to the same issue that the fraud charge was not founded on evidence. To the contrary it is clear that the Appellant was let to purchase the expensive Bermacol it was because he had not brought to the attention of his superiors that he was in contact with cheaper suppliers hence if the superiors acted on his representation that Bermacol could only be bought from the expensive supplier then he cannot turn around to argue that he had clean hands on the issue. The court has no cogent basis to upset the findings of the trier of fact in this regard. See also **Nyahondo v Hokonya abd Others 1997 (2)SC 459**

**Ground 6**

On the penalty plane it is settled that penalty is at the discretion of the employer See **Circle Cement v Nyawasha SC60/03.** As the respondent submits where the employer is of the view that the conduct complained about goes to the root of the contract dismissal cannot be faulted. See **Innscor v Chimoto SC8/15.** The Court is alive to the fact that it is imperative e that mitigation be elicited from an employee if found guilty See Sec 12(4) Labour Act.
 In the case at hand even though there is no clear record that appellant was invited to submit mitigation features the record shows that what was in his favour was also considered so the penalty discretion exercise was thus carried out without prejudice to appellant See Nyahama v Barclays Bank on the test for prejudice SC 65-05. In the ultimate the court is satisfied that the appeal ground vis penalty is without merit so it should fail. In the final analysis it is clear that all the appeal grounds are without merit. They should accordingly fail and the appeal should be dismissed in its entirety.

**IT IS ORDERED THAT**

Appeal being without merit in its entirety it be and is hereby dismissed with each party bearing own costs.

M.D. Hungwe Attorneys. Applicant’s Legal Practitioners

Musengi and Sigauke, Respondent’s Legal Practitioners
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