Cleopas Fambi v Zimbabwe Power Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/95/2021
HARARE, 26 NOVEMBER, 2020
CASE NO. LC/H/48/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/95/2021

HARARE, 26 NOVEMBER, 2020		               CASE NO. LC/H/48/20

AND 16 JULY, 2021

CLEOPAS FAMBI								Appellant

ZIMBABWE POWER COMPANY (PVT) LTD				Respondent

Before The Honorable G Musariri, Judge:

For Appellant:			Mr B. Magogo, Attorney

For Respondent:			Mr TS, Manjengwah, Attorney

MUSARIRI J:

Respondent’s (employer) Executive Chairman wrote a letter dated 30th March 2020 to Appellant (employee). The contents show that the employee was demoted after disciplinary proceedings. The employee then appealed to this court against both the verdict and penalty. The employer opposed the appeal.

Verdict

The charges against the employee were set out in the letter dated 13th November 2019. A copy is filed of record. The relevant part read as follows;

“i.	During the year 2015, whilst conducting your duties as the Projects Manager at Zimbabwe Power Company, you allow and or participated in drafting a Request for Proposal (RFP) for tender for the Gwanda Solar Project without the organization having undertaken a feasibility study. You were employed by the organization for your expertise in carrying out sustainable, cost effective and beneficial procurement for the organization. You were well aware that for a project of the magnitude of the proposed 100MW Gwanda Solar project, the best practice was that ZPC start by carrying out a feasibility study to determine whether it was worth spending money on the project”

The essence of the charge was that the employee participated in the initiation of the tender process for the Gwanda Solar Project without having done feasibility studies. As Projects Manager the employee was obliged to ensure that best practice was followed to avoid unnecessary expenditure. The same set of facts was alleged to be a violation of the Public Finance Management Act [Chapter 22:19]. In other words the alleged violation of the Act was an alternative charge.

In oral argument before this Court the employee’s attorney laid out the basis of the appeal. He stated that the prevalent practice was that an RFP was prepared first calling upon bidders to submit bids. Then the project would start with a feasibility study. Such study was necessary though its timing was post-preparation of the RFP but prior to implementation of the project. That is the manner in which the contract in question was crafted. Clause 3 of the contract in question gave contractor the duty to do the feasibility study. Clause 5(e) made completion of the study one of the conditions precedent to implementation. The employee then gave examples of projects were a similar modus operandi obtained.

Minutes of the audit of the Gwanda (Audit) Solar Project are filed of record. The relevant portion is sub-titled “Feasibility Study”. The following excerpts are instructive,

“6575 through discussions which we held with Messrs Mharadze, Fambi and Chikuri to obtain an understanding of the procurement procedures followed by ZPC, we gathered that ordinarily, ZPC should have a feasibility study carried out by an independent consultant prior to the floating of a RFP……

6576….Mr Chiwara and Engineer Fambi also stated that the by-passing of the feasibility study and its inclusion in the contract with Intratek Zimbabwe was not normal procedure……..However when we asked Mr Mharadze and Engineer Fambi whether they had raised their objections in writing (paragraph 1 Annexure 1). By failing to do so and proceding with the drafting of the RFP without the feasibility study, Mr Mharadze and Engineer Fambi failed to comply with section 143 of the PFMA”.

(The underlining for my emphasis is mine).

The above excerpt shows that Appellant admitted during the audit that the feasibility study ought to have been done prior to the tender process. The admission/s are per se proof of the misconduct alleged. The defence raised in this Court was that normal procedure did not require a feasibility study prior to tender. I consider it as an after-thought which is contradicted by his own admissions during audit. I therefore conclude that the verdict of a conviction was supported by the evidence.

Penalty

The following excerpt also appears from the audi

“6578 In his interview with us, Engineer Fambi stated that he had resisted drafting the RFP prior to a feasibility study but was pressured by ZPC’s directorate into drafting the RFP. He indicated that when he continued to resist drafting the RFP he was summoned to a meeting in which the general manager, Mr Mareya, Engineer Chikuri, the late Mr Magura and Mr Chiwara sat in and he was informed that he was delaying the process and could face disciplinary action”.

It appears that there was pressure to forgo the feasibility study from the Appellant’s superiors. The pressure does not absolve him from carrying out his duties diligently. However it reduces his blameworthiness. In terms of section 12B (4) of the Labour Act [Chapter 28:01] this court is obliged to consider mitigating circumstances in reviewing a penalty. I am not satisfied enough account of the mitigating circumstances was considered in the punishment meted out. The employee was demoted by 2 (two) grades. A demotion by 1 (one) grade would suffice.

Wherefore it is ordered that;

1.	The appeal be and is hereby partially allowed;

2.	The penalty of demotion of Appellant by two grades is set aside and substituted by a demotion of one grade; and

3.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E