Confidence Mazuruse v ZUPCO

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/564/16
HELD AT HARARE 23 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/564/16

HELD AT HARARE 23 JUNE 2016				CASE NO LC/H/217/16

& 9 SEPTEMBERS 2016

In the matter between:

CONFIDENCE MAZURUSE				Appellant

And

ZUPCO							Respondent

Before The Honourable Maxwell, J

For Appellant			T Deme (Legal Practitioner)

For Respondent		Ms A Mapanzure (Legal Practitioner)

MAXWELL  J:

This is an appeal against a decision by the Appeals Officer of the respondent to upheld the determination and penalty imposed by the Disciplinary Authority. Appellant was employed the respondent as a Divisional Accountant based at the Southern Division at the Bulawayo depot.  On 15 February 2016 appellant was suspended from duty on allegations of committing serious acts of misconduct.  Disciplinary proceedings were held and appellant was found guilty.  He was dismissed from employment on 9 March 2016.  Appellant appealed to the Appeals Officer.  He was successful on one ground.  The rest of the grounds did not succeed and the verdict of guilty and penalty of dismissal was upheld.

Aggrieved, appellant appealed to this court on the following grounds;

The Appeals Officer erred in upholding the appellant’s conviction of the second allegation of gross incompetence on the pretext that he failed to enforce adherence to accounting systems and procedures when no evidence was adduced to that effect.  On the contrary, the evidence appellant showed during the hearing, which was never contradicted, showed that he was supervising his team well.  The appellant explained that corrective action had been taken o (sic) the issue of the cash hand over book and all procedures were being adhered to.

The Appeals Officer erred in upholding the appellant’s conviction of gross incompetence (way bills allegation) notwithstanding the explanation tendered by the appellant in the course of the hearing that a manual system for such was in place and no way bill was missing, which explanation was never controverted in cross examination.

The Appeals Officer grossly erred in upholding the appellant’s conviction of the fourth charge of gross incompetence (failure to do creditors reconciliation) yet, the appellant submitted detailed evidence during the hearing that manual creditors reconciliation was done.

The disciplinary authority erred in convicting the appellant of the fifth charged of gross incompetence (violation of the zero credit Policy) despite his explanation that the transactions which violated the zero credit policy were actually done by the corporate office, at the very highest offices, of which the complainant Mr Shaishai admitted and conceded that it was not the fault of the appellant.  It is therefore surprising that the sins of the supervisors are visited upon the juniors.

The Appeals Officer grossly erred in upholding the appellant’s conviction of the sixth allegation concerning habitual and substantial neglect of his duties (failure to perform CBZ accounts reconciliations) notwithstanding that the reconciliations were done after the SAP training.  No evidence was shown to demonstrate even a single account with outstanding reconciliations.  Rather, the appellant submitted evidence in the form of manual bank reconciliations to show that there was no neglect of duty on his part.  The appellant even demonstrated that these outstanding reconciliations were not his obligation but the corporate office’s accounts, to which the complainant Mr Shaishai acquiesced

THE Appeals Officer grossly erred in upholding the appellant’s conviction on the sixth allegation concerning habitual and substantial neglect of his duties (lack of aggressive debtor follow up) despite the appellant showing that he made follow ups on debtors and even handed over some to the legal department for litigation.  The finding that there is no evidence of follow up on the remaining debts that were still under your responsibility is unfounded on the basis that the respondent failed to demonstrate during the hearing and lead any evidence that there were any outstanding debtors which the appellant was seized with and that he was not aggressively following up such.

The Appeals Officer grossly erred in holding that the violation of the National Code of Conduct in so far as the failure to conduct the hearing within the prescribed 14 days was the fault of the appellant, yet the record of proceedings ought to show that the delay was caused by the employer not the appellant as alleged.

The Appeals Officer further grossly misdirected himself by upholding a punishment which was meted without the appellant being afforded an opportunity to mitigate as provided for in the National Code of Conduct.

Appellant prayed for the quashing of the conviction and sentence and for his

reinstatement without any loss of salary and benefits with effect from the date of suspension.

In response respondent objected to grounds of appeal seven and eight on the basis that they raised issues that should be dealt with on review.  In addition it was stated for respondent that the appeal constitutes a clear abuse of court process as the record of proceedings show that

The appellant was in clear and flagrant violation of his core duties and responsibilities in terms of his contract of employment justifying the charges of gross incompetence or inefficiency in the performance of his work as well as habitual and substantial neglect of duties which the appellant faced and was convicted for;

The appellant had previously been tried and convicted twice for offences of a similar nature;

At the time of his dismissal, the appellant was sitting on a “severe written warning” for a similar offence; and

Under the circumstances the Appeals Authority was correct in upholding the Disciplinary Authority’s decision to dismiss the appellant as it did.

Respondent prayed for the dismissal of the appeal with costs.  I do not agree with

respondent that ground of appeal number seven (7) is raising procedural issues.  It is actually challenging a factual finding that it was appellant who caused the hearing to be conducted outside the prescribed 14 days.  Respondent is however correct that the eight ground of appeal is on a procedural issue.  Procedural issues are dealt with on review.  It is improper to raise them on appeal.  The eighth ground of appeal is therefore improperly before the court and will not be considered.  The remaining grounds of appeal will be dealt with in their order.

Ground of appeal one

Appellant alleges that there was no evidence to prove that he failed to enforce adherence to accounting systems and procedures on the basis that the book used by cashiers did not have a column where the cashier receiving cash would sign as acknowledgement of receipt.  In appellant’s heads of argument it is stated that the cash handover book was never tendered as evidence to prove this.  The record of proceedings on page 54 of the record clearly shows that this was an admitted fact.  The following excerpt appears.

“Disciplinary Authority

How do you answer to the charges?

Defendant

Cash handover book used by cashiers does not have a column where the cashier receiving cash signs as acknowledgment of receipt of cash.  This has been as a result of cashiers by passing the controls and this has been since rectified.

........”

It is trite that what is admitted need not be proved.  The first ground of appeal is therefore without basis.  In any event conviction was based on two factors, the cash handover book and also the fact that cash was being banked first and later receipted.  The heads of argument did not address the second aspect at all.  The first ground of appeal cannot succeed.

Ground of appeal two

Appellant is challenging the finding that waybill continuity is not performed at all times to account for all waybills dispatched.  Appellant alleges that a manual system was in place and that fact was put to Mr Rwasoka, the witness, who did not deny the existence thereof.  The record of proceedings shows a different position.  On page 56 the following excerpt appears;

“How do you answer to charges?

Defendant

I further submit that the waybill continuity is not performed at all times for all waybills dispatched.

This has been as result of the manual system which was in operation which some staff has been by passing…”

The Appeals Officer stated that as the supervisor appellant was supposed to reign his subordinates in as well as coming up with a manual system which should have ensured that the waybill continuity was being performed.  The appellant’s manual system in place dealt with the problem yet appellant admitted that there were subordinates who were by passing it.  There is therefore no basis for criticising the appeals’ officer’s confirmation of the conviction on this allegation.

Ground of appeal three

Appellant challenges the conviction for failure to do creditors’ reconciliation.  He alleges that he submitted detailed evidence during the hearing that manual creditors reconciliation was done.  Appellant in heads of argument states that an exhibit to prove that point was tendered during the hearing.  The alleged exhibit was attached to the heads of argument.  The record of proceedings seems to point a different picture.  The record of proceedings shows that Mr Rwasoka was called to present his findings on that aspect.  He stated that reconciliations should be done per month but there were some variances with figures that were coming from suppliers and the ones produced by the appellant.  He further indicated that the reconciliation of a supplier by the name Shashe was not done at the time he did his audit.  He further stated “when I left there was nothing on the file showing the supply and payment reconciliation” (page 59 of record).

The document attached to the heads of argument therefore does not help the appellant.  The appeals’ officer stated that the number of transactions handled by appellant per day or week is so small that a manual system could easily have been set up and used whilst SAP project was being implemented.  The Appeals Officer’s confirmation of the appellant’s conviction on this allegation cannot be faulted.

Ground of appeal four

Appellant challenges his conviction on violation of the Zero Credit Policy on the basis that the transactions which violated the policy were actually done by the corporate office.   The record of proceedings show that the Appeals Officer accepted that appellant was not solely to blame in this case.  He however stated that there was no record of appellant’s objections where he objected to the corporate office whenever they attempted to divert funds prejudicial to the Zero Credit Policy.  The Appeals Officer stated that in the absence of written objection the verdict of guilty is upheld.  The Appeals’ Officer’s reasoning cannot be impugned.

Appellant cannot seek to hide behind the fact that the violation was done at the highest level when it was his responsibility to ensure that there was no violation.  As stated by the Appeals Officer, a written objection would have shown his adherence to the policy.  I find no merit in this ground of appeal.

Ground of appeal five

Appellant challenges his conviction for failing to perform CBZ accounts reconciliations.  He states that the reconciliations were done after the SAP training and no evidence was led to demonstrate outstanding reconciliations.  Again appellant attached a document to heads of argument as proof that manual bank reconciliation was done.  He alleges that the document was tendered at the hearing.  The position stated in heads of argument is contrary to what is on record.  On pages 62 – 63 of the record the following appears.

“Witness

When I went to Southern Division I asked for bank reconciliations and they were not available…  For the period I checked from June 2015 there are no bank reconciliation of which the defendant did not deny that position but said SAP was not working

Defendant

May be witness can clarify on the FBC

Witness

I am commenting on the accounts you were in charge of

. . . . . . . .

Disciplinary Authority

Were you not supposed to do it manually if the system was not producing?

Defendant

That was going to create a backlog”

(Underlining for emphasis)

Again on page 64 appellant repeated that doing manual was going to carry a backlog.  He did not state that he was doing it manually.  The submission that he tendered the document attached to the heads of argument therefore cannot be true.  I find no merit in this ground of appeal as well.

Ground of appeal six

Appellant challenges the allegation that he did not carry out an aggressive debtor follow up.  He alleges that he made follow ups on debtors and even handed over some to the legal department for litigation.  Again appellant attached a document to heads of argument which he alleges was tendered during the hearing.  The record of proceedings does not indicate that such document was ever tendered during the proceedings.  Appellant was asked on page 65 if he wrote a letter of demand at any point.  His response was that he wrote to confirm balances, and that he followed up verbally.  Confirming balances and writing letters of demand are not the same thing.  The Appeals Officer stated that mere forwarding of a debt to the legal division is not by itself an aggressive debt collection device.  He further stated that appellant did not prove to the Disciplinary Authority that he had debtor’s statements and final letters of demand he had issued even to a single debtor.  The Appeals’ Officer’s conclusion that that shows lack of aggression cannot be faulted.  I find no merit in this ground of appeal.

Ground of appeal seven

Appellant criticises the Appeals Officer for holding that the failure to conduct the hearing within the prescribed 14 days was the fault of the appellant.  He states that the record of proceedings ought to show that the delay was caused by the employer.  Appellant’s heads of argument are silent on this ground of appeal.  I will therefore consider it abandoned.  In any event the record of proceedings shows that appellant’s legal practitioners requested the shifting of the hearing time for the hearing that had been scheduled for Tuesday 23 February 2016 at 10.30 a.m.  It is clear that counsel’s unavailability at the scheduled time resulted in the hearing not proceeding that day.  Respondent submitted that some of the members of the disciplinary committee were not available at the time counsel said he would be available.  The hearing was re-scheduled for 26 February 2016 but counsel was still not available.  The Appeals Officer’s findings can therefore not be faulted.

In the final analysis I find no merit in the appeal and it cannot succeed.  Consequently the following order is appropriate.

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

Chibune & Associates,  appellant’s legal practitioners

Chinawa Law Chambers, respondent’s legal practitioners