Conquip Zimbabwe (Pvt) Ltd v Sekai Manyau

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/67/2016
HARARE, 06 JULY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/67/2016

HARARE, 06 JULY 2015			     	    CASE NO. LC/H/635/13

AND 19 FEBRUARY 2016

In the matter between:-

CONQUIP ZIMBABWE (PVT) LTD		Appellant

And

SEKAI MANYAU						Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr G. Maseko (Legal Practitioner)

For Respondent	Mr C. Kwaramba (Legal Practitioner)

HOVE, J:

The appellant in this matter was employed by the respondent as an accounts clerk in its accounts department.

Misconduct allegations were raised against the respondent.  The charge was

“Lack of skill”

The specific allegations were;

Wrongly compiling and submission of VAT returns.

Petty cash – incorrect balances and absence of reconciliations for 2011.

Reconciliation of debtors and creditors not done.

Missing files, missing documents and incorrect filing system.

The respondent was found guilty and she was dismissed from employment.

The respondent appealed against the decision to dismiss her to the General engineering committee for the National Employment Council for the Engineering, Iron and Steel Industry.

Her grounds of appeal were generally that;

The Works Council had erred in finding her guilty of wrongly compiling and submitting VAT returns when there was no such evidence.

There was no policy at the respondent company in respect of petty cash.

The complainant was not qualified to understand whether or not accounts were being properly done.

No evidence was led by Brian Murphy and Eras accountancy as to whether the accounts had been properly done.

It was not respondent’s job to do reconciliations.

Respondent could not complete her work as files had been taken from her office and the files could not be located because the complainant had moved her files in her absence.

She ought to have been trained before she could be dismissed for incompetency

Several other procedural matters were raised.

The appellant argued in response that the proceedings had been fairly conducted and the respondent suffered no prejudice from the alleged procedural irregularities.

Further it was argued that the respondent had failed to do reconciliations and the company was being prejudiced by her inability to do her work.

The appellant further submitted as follows;

“The respondent was often rude when asked about her performance, she did not do reconciliations, cater for balancing of the petty cash badly submitting incorrect figures to Zimra.”

The appellate body ordered the reinstatement of respondent.

They gave eight reasons for reversing the works council decision to dismiss the respondent for lack of skill.  These were;

The disciplinary committee was improperly constituted.

It was not the responsibility of the respondent to sign VAT return forms but rather her supervisor.

The delays for late payment of VAT and PAYE for 2011 were as a result of delayed payment by Marange Resources Pvt Ltd.

The presence of Mr M. Foroma exacted an undue influence.

The charge of lack of skill was improper given that the respondent had served the organization for 8 years.

Mrs Christine Moorcroft’s role was improper.

The appeal committee was improperly constituted.

The respondent had no previous disciplinary record.

The appellant was dissatisfied and eventually the matter was appealed to the Labour Court. The grounds of appeal were 8 and they were briefly that;

The national Employment Council (NEC) had failed to consider that respondent had suffered no prejudice by the procedural irregularities it had noted.

That the NEC considered a point that was not in contention that it was the Finance Manager’s duty to sign VAT return forms.

Again the NEC took into account irrelevant issues that the delays in payments of VAT and PAYE for 2011 were as a result of the delayed payment by Marange.  When the real issue was whether or not the respondent had correctly compiled the VAT Returns.  The allegations was that the calculations were wrong.  The appellant herself had admitted 6 times that she did not do her job correctly.

No prejudice was suffered by the presence of Mr Foroma in the hearing.

The NEC erred in finding that the charge was improper.

The NEC wrongly found that Christine Moorcroft was both a witness and a complainant.

It was wrong to base a decision on procedural irregularities.

The NEC did not take into account that the respondent was advised about the office change and that she took away confidential company documents and refused to give them back.

When the matter came before the Labour Court, the court had to decide whether or not the NEC’s decision was supportable in terms of the evidence placed before it.  Was the respondent inefficient or did she indeed lack the requisite skill in the manner she had conducted her duties? This was the main issue before the court.

At the hearing of the appeal, there was a preliminary point raised challenging the appellant’s reliance on a letter dated 15 January 2013 by Brian Murphy (page 26 of the record).  The letter from Murphy was placed on record after the hearings had been concluded.

The court decided to put Murphy’s evidence to the test by having him called to testify.  It was because he is the one who had “audited” the appellant’s accounting department’s performance and gave the finding that the two persons manning the accounts department were highly inept.  To enable the court to clarify the issues in regards to his evidence, the court decided to have him come and testify before it.  No prejudice would be suffered by either side as the respondent would then cross examine the witness. This, the court can, in terms of its rules do.  Rule 12 (1) provides that;

“12 (1) subject to these rules the court shall conduct any hearing on such a manner as it considers most suitable to the clarification of the issues, the fair resolution of the matters, and generally the just handling of the proceedings before it.”

The Labour Act [Chapter 28:01] (the Act) also allows the calling of oral evidence before the Labour Court in section 90A which provides as follows;

“90A

(1)	The Labour Court shall not be bound by the strict rules of evidence, and the court May ascertain any relevant fact by any means which the Presiding Officer thinks fit and which is not unfair or unjust to either party.

(2)	evidence may be adduced orally or in writing in any proceedings in the       Labour Court at the discretion of the presiding Judge.

(3)	The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross examine each other or any witness.”

The first witness called was Brian Murphy.

His evidence was that he is a tax advisor with 25 years’ experience in accounting.  He is also the holder of a law degree and has working experience as a Magistrate.

He was called by the appellant in January 2012 to ascertain the problems they were having in the accounts department.  This was because the appellant had been issued with penalties by the Zimbabwe Revenue Authority (Zimra) and had been denied a VAT clearance certificate and was thus unable to trade.

He testified that he found two people in the department Eunice Madondo and Sekai Manyau.  Madondo was the Finance Manager.  She was a close relative of Manyau who was the accounts clerk.  He formed the opinion that these two were highly inept.  He worked in the Department for 3 months and established that the two were jointly responsible for Zimra returns, including VAT returns PAYE returns QPD calculating, and the processing of all invoices, statements, bank reconciliations, debtors and creditor’s reconciliations and payments. He noted that Zimra had refused to give the appellant, (Conquip) a VAT tax clearance certificate because the Zimra ledger showed Conquip owed Zimra $253 907,56 and this was due to submissions made by the respondent.  He noted that respondent poorly processed debtor’s invoices and statement, no records were kept of correspondences with Zimra or meetings and visits to the company office.  There was also poor/inadequate and sometimes no filing of documents.  Further;

Respondent gave no explanation for failing to do reconciliations.

No manual system of accounting.

Discrepancies in the department went as far back as February 2009 when there was introduction of the multi-currency regime.

The respondent’s trial balance showed that the company (appellant) had stock worth of machines amounting to $3 million but these were not reflected as assets.

Zimra VAT was vastly overstated and it took a year just to reconcile the books with the assistance of Norleen McDevitt.

Also from his evidence and the cross examination it was made clear that he held no accounting qualifications but had practical knowledge from working as a tax advisor over a period of 25 years.

I found that Brian Murphy’s evidence was acceptable and corroborated by admissions made by the respondent herself which were on record for example the respondent had admitted that no reconciliations were done, that petty cash did not balance that incorrect VAT schedules had been submitted.  That there were documents missing from files and invoices were wrongly filed.  Further there was no numbering of documents in files.

These admissions from the record of proceedings before the works council show that Brian Murphy was correct in his assessment of the appellant’s accounts department.  Murphy submitted that the VAT returns as submitted by the respondent resulted in the appellant being denied a tax clearance certificate as it was shown that Zimra was owed $253 907,56.  This was reversed when new submissions were done and it was shown that the appellant was actually owed money by Zimra.

The respondent sought to discredit the witness evidence by stating that he had no accounting qualifications.  But he had experience as a tax advisor.  He was able to assist the appellant and they got their tax clearance certificate.

The respondent had sought to deny that she was responsible for bank reconciliations.  But Murphy stated in his evidence that she failed to do bank reconciliations though this was part of her responsibilities.  This was corroborated by page 24 of the record which is the job description of the respondent.  Reconciliations were part of her responsibilities.

The second witness, Noleen McDevitt worked with the first witness and had 15 years’ experience in the accounting field.  She checked the bank statements, reconciliations, conscientised the respondent of her job description which included processing salaries and wages and implementing a filing system.  While working with the respondent, she noticed that instipe of the respondent stating that she was familiar with the Pastel Accounting system, she failed to print a statement for a customer.  She further noted that the Zimra returns were incorrect, that reconciliations were not being done, that documents were missing from files and filing was not being done.  Debtors and Creditors accounts were not being sorted out and the respondent was not diligent in her work.  Further she exhibited a negative attitude.

McDevitt evidence was credible she did not have an accounting degree but her evidence like that of Murphy was well corroborated with the record of the works council hearing and also the admissions by the respondent herself.  Her evidence was also corroborated by that of Murphy.

The evidence of Christine Moorcroft who was the General Manager of the appellant was that she was the General Manager and supervisor. She supervised the respondent after Eunice Madondo who was respondent’s boss had resigned.  She submitted that as a result of the respondent’s failure to manage the accounts department the appellant was said to owe Zimra $253 907,56.  The appellant was denied a tax clearance certificate and there was no file for Zimra returns or reconciliations. The respondent was often rude when asked to explain the discrepancies in the account department.  She noted that the respondent was grossly inefficient.  She gave similar evidence to that of the first two witnesses. She remained consistant under cross examination and did not depart from her evidence.  She stated that the respondent’s lack of skill became more apparent and was exposed when her aunt, Eunice Madondo who was her boss as the financial manager left the company.

I find no reason to discredit the witnesses’ evidence which was consistant even under cross examination.

After theses witnesses, the respondent testified.  She denied all the allegations against her and stated that there was no problem with the accounts department and her work.  She stated that she worked well and professionally.  She was up to date with her work.  She however sought to deny that she was responsible for some of her duties but this cannot be accepted in view of page 24 of the record which is her job description.  The witness stated that her filing system was accurate and that her files were labeled and in order.

Three witnesses, i.e. Murphy, Moorcroft and Noleen McDevitt however stated that there was no proper filing, the documents were not labeled and there was general disorder with the actual accounting duties of processing the cashbook entries and reconciliations, not being done. The record shows that the General Manager went into the respondent’s office and went through the files with the intention of forming some semblance of order.  In the process, files for each year were put into groups – 2009, 2010, 2011 etc and placed in the cupboards in the office or in stationary lock up cupboards.  Files dating back to 2007/2008 were also found in amongst the files and these were placed in the lock up stationary cupboards.  Old time sheets dating back to 2006/7 were all packed into boxes and put in storage.

The appellant alleges that the respondent was not correctly filling documents.  There was hence the need to go into her office and organize the files creating some semblance of order.

Further appellant alleged that wrong figures were submitted to Zimra and many documents were missing which had to be reprinted.  The respondents work was not up to date and in most cases it was inaccurate.  Her figures were not balancing. The Zimra returns were being incorrectly calculated.  There is no reason why these three witnesses could have connived against her to lie against her.  She was not known to Murphy and to McDevitt and no suggestion has been given that perhaps these had a reason to lie against her.

The fact that she submitted returns to Zimra and as a result the appellant was said to owe Zimra in excess of $200 000 dollars shows that she indeed was incompetent especially when new correctly calculated returns were submitted after her dismissal and it was found that the appellant was actually owed money by Zimra.

She also was not a good witness.  She failed to explain why she denied that she was in charge of invoicing and reconciliations when her job description showed that she was her evidence did not tally with what she had given in earlier proceedings.  She made inaccurate submissions in her evidence showing that she was not a credible witness.  She stated that files and documents were missing because Christine Moorcroft entered her office in her absence.  No reason was given as to why Moorcroft would want to sabotage her and her work.

I did not find the respondent to be a credible witness.  She departed from her evidence given in the earlier proceedings and lied about her duties.

Eunice Madondo also came to give evidence in support of the respondent.

From her evidence it was established that she was employed by the appellant as a Finance Manager and was an aunt to the respondent who was her brother’s daughter.  Apart from the respondent, she had also employed in the appellant company another relative who had disciplinary issues and was eventually dismissed for stealing from the Managing Director.

She denied that there was chaos in the accounts department.  She denied that the Respondent was incompetent.  She stated that she decided to leave when it became apparent that she was meant to be subjected to similar disciplinary proceedings as the respondent.  She said that she however did her duties correctly and accurately.  The intended allegations against her were just malicious.  She submitted that duties such as meeting with Zimra, keeping Zimra records, QPO calculations, PAYE returns were her responsibilities and that other two employees,  Hannah and Janet did petty cash.

However page 24 contradicted her evidence it shows that the respondent also did petty cash returns and processed petty cash receipts and payments.  It also shows that the respondent was responsible for filing all proper work relating to bank accounts.

According to her evidence, there was nothing wrong with the accounting department during her time and respondent’s time.  All things were properly done and documents were properly filed.  This evidence contradicts that of the first three witnesses.  Her evidence cannot reflect the truth of the matter in view of the evidence Brian Murphy and the other two witnesses.  The evidence of Brian Murphy was preferred over that of Mrs Madondo because the evidence of Murphy was corroborated by the Zimra VAT returns which showed that Zimra was owed in excess of $200 000 according to Madondo’s and respondent’s returns with the result that Zimra denied the appellant a tax clearance certificate, when Brian Murphy and Noleen McDevitt resubmitted their returns, the tax clearance certificate was issued and also it was found that Zimra actually owed the appellant.

The three witnesses for the appellant had nothing to protect.  They had no motive to lie while on the other hand, Mrs Madondo had a motive to lie.  Her own professionalism was at stake and the respondent was her brother’s daughter.

The respondent’s representative argued that there  had to be shown to the court the copies of the corrected returns before the court could believe the evidence in relation to the inaccurate Zimra returns.

The standard of proof in Labour disputes like in all civil proceedings is much lower than that required in criminal trials.  The standard of proof is that of a balance of probabilities,.  The probabilities in casu was that Madondo was merely trying to protect her relative and deny that which was clearly apparent and that is that the VAT returns had been inaccurate.

In the case of Ebrahim v Pittman NO 1995 (1) ZLR 184

The court stated that;

“It is trite law that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing, it does not exclude every reasonable doubt.”

See also Govan v Skidmore 1952 (1) SA 732.

Unlike in Criminal cases where every fact material to establish the guilt of the accused must (unless it is admitted) be established by proof beyond reasonable doubt and inferences from facts must, in order to be permissible, be such as to leave no reasonable doubt of their propriety and correctness, in civil matters one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones even though that conclusion be not the only reasonable one.

Even the decision of the NEC which is being appealed against was not based on the fact that the respondent had been competent but on technical issues that the Disciplinary Committee was improperly constituted, that Mr Foroma’s presence exacted an undue influence to the proceedings, that the financial director was both a witness and a complainant, that the employee was a first offender and finally that the appeals committee was improperly constituted.  All these are technical issues which cannot vitiate the proceeding as no prejudice was shown to have been suffered by the respondent.  This is the position in our law.  It is not all procedural irregularities which vitiate proceedings in the case of Rajah v Ventersdorp 1961 (4) SA 402 the court stated that;

“Now I think it is clear that the court will not interfere on review with the decision of a quasi judicial tribunal where there has been an irregularity if satisfied that the complaining party has suffered no prejudice.”

This position has been followed by our courts.  See in this regard the cases of

Dalyn Mine v Musa Banda SC 39/99

Barclays Bank v Nyahuma SC 86/04

Five out of the eight reasons for Judgment by the NEC were based on technical considerations which were not shown to have caused any prejudice.  This was a misdirection on the part of NEC.

The other three reasons were based on irrelevant considerations like finding that it was not the responsibility of the respondent to sign VAT return forms.  This was never in dispute the allegations were not that she signed the VAT return forms but that she inaccurately compiled the returns.  Further respondent herself had in the initial hearing not denied that there were wrong calculations and that she did not do her job correctly.  The issue was not delays in payment but inaccurate information.  Finally one cannot be said to have worked skillfully and competently on the mere basis that she had worked for 8 years. The respondent herself had admitted to wrong doing and there was a serious probability that her boss who was her aunt was covering up her inefficiencies.

I am thus satisfied on a balance of probabilities that the respondent lacked the requisite skill to do her job with the level of skill and accuracy expected in an accounts clerk.

In the result the appeal succeeds with costs.

The decision appealed against is set aside.

The appellant’s decision to dismiss the appellant is upheld.

Sawyer & Mkushi, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners