Consider Govere v Proton Bakery (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO: LC/H/30/23
HARARE, 16 SEPTEMBER 2022
CASE NO. LC/H/365/22
AND …………………..
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO: LC/H/30/23

HARARE, 16 SEPTEMBER 2022                      	   CASE NO. LC/H/365/22

AND …………………..

In the matter between:-

CONSIDER GOVERE                                                          APPELLANT

And

PROTON BAKERY (PRIVATE) LIMITED                      RESPONDENT

Before Honourable Chivizhe, J:

For Appellant:        Mr E. Maponga (Trade Unionist)

For Respondent:     Mr E. Ncube (Chief Human Resources Officer)

CHIVIZHE, J:

This is an appeal against a determination made by the Respondent Disciplinary Authority on 30th of March, 2022. The appeal is opposed.

The material background facts to the matter are as follows;

The Appellant was employed by the Respondent as a Driver/Salesman. He was engaged on a fixed term contract running from 1st of January, 2021 and expiring on 31st of March 2021. On the 23rd of March 2021 the Appellant was suspended from employment without pay or benefits. He was notified to attend a hearing on the 29th of March 2022. The allegations levelled were that he had violated the Bread and Bun ration policy after he had been found with 44 additional buns over and above his normal ratio. The charge levelled was that of breach of Section 4 (a) of Statutory Instrument 15 of 2006, i.e. any act of conduct inconsistent with the fulfilment of the express or implied conditions of his or her contract.

The disciplinary hearing was convened on 30th of March 2022. The Appellant pleaded not guilty to the charge. Evidence was led in the hearing form the security guard who submitted that upon searching the truck which was being driven by Appellant with a van assistant, the truck being en-route to Dombotombo, he had found 68 units of buns inside the truck. It was his further evidence that upon enquiry of Appellant, the Appellant had denied knowledge of the buns. Upon his enquiry of the assistant, Mr Ernest Makwindi, same had admitted to being the culprit behind the excess buns placed in the driver’s bag.

The Appellant’s defence was that he had no knowledge of the existence of the buns which had been placed in the driver’s bag. The Respondent found the Appellant guilty of the charge principally because it was his responsibility as the driver to look after Respondent property i.e. the truck, the driver’s bag and that he had failed supervision of his subordinate. A penalty of dismissal with effect from the date of suspension, being 23rd March, 2022 was consequently imposed upon him. It is this determination the Appellant is appealing against in the present appeal.

GROUNDS OF APPEAL

The Appellant has noted his appeal on the basis of the following;

“GROUNDS OF APPEAL

The disciplinary authority erred at law in finding the Appellant guilty of an offence that was admitted to by a witness who confessed that he committed the offense without the knowledge of the Applicant.

The determination given on the 30th of March 2022 was predetermined as evidence by the fact that the Appellant was served with typed and printed dismissal papers shortly after the hearing was adjourned.

Wherefore appellant prays for:

The determination of the 30th of March 2022 be and hereby overturned.

The Respondent be and hereby ordered to reinstate the Appellant without loss of pay or benefits.

If reinstatement is no longer possible that the Respondent be ordered to pay damages to compensate reinstatement. The quantum to be agreed by the parties and either party to approach the court for quantification upon failure to agree on the quantum.

The Respondent is opposed to the appeal. Through the Notice of Response filed on 20th of May 2022 the Respondent contends that the Appellant breached its Bread and Buns ration policy and was properly found guilty of the charge. The Respondent further submits that the grounds of appeal as submitted are meritless in view of Appellant position as the Driver who was overally in charge of its bag, the truck and the trip. The Respondent further contends that the evidence of the witness, Mr Ernest Makwindi, cannot be trusted as he is essentially an accomplice and a co-accused of the same offense. The evidence he gave is therefore unreliable to that extent. The Respondent also disputes that the determination made by the Disciplinary Committee was pre-determined. Respondent submits that the Appellant was subjected to a fair and impartial hearing and the sentence imposed was properly arrived at. In view of the seriousness of the charges levelled being charges pointing to dishonesty in an employee as there was a material breach of trust between the Appellant and the penalty of dismissal was therefore appropriate. On this basis the Respondent prayer is for dismissal of the appeal with costs.

PARTIES SUBMISSIONS

Mr Maponga, the Appellant’s representative in oral submissions emphasised that the employer had also breached Section 12 subsection 5 of the Labour Act [Cap 28:01] by failing to give Appellant notice of the termination of the fixed term contract. It was his contention on Appellant’s behalf that in view of the disciplinary proceedings terminating on the 30th of March 2022, the Respondent having thereafter granted Appellant leave to appeal, there had been tacit relocation of the contract of employment. Mr Maponga, on this issue undertook to furnish the Court with the supporting authority after the proceedings. He did place before the Court the Supreme Court decision in Tobacco Processors Zimbabwe (Private) Limited vs. Tongoona Mutasa & Ors SC 12/21.

Mr Ncube, on behalf of Respondent, in counter, submitted that the factual circumstances in this case did not point to any legitimate expectation of renewal having been created by the employer. The facts showed that Appellant had been employed for only three months; he could not therefore claim legitimate expectation. There was also no tacit relocation of the contract of employment. Instead the Appellant had faced disciplinary proceedings which proceedings terminated coincidently just before the termination of his fixed term contract. There was nothing amiss in these circumstances. The Respondent placed reliance on the Supreme Court decision in Muchechetere vs. ZBC SC 143/21 where the Court had emphasised that it is possible for an employee to commit a serious offence almost at the end of his employment contract, it however remains within the province of the employer to still discipline him as such. The Respondent also denied the allegation that it had deliberately dragged Appellant to disciplinary action just before termination of his fixed term contract. Mr Ncube referred to the filed authorities in support of Respondent position. Most importantly the Respondent was disputing that the Tobacco Processors Zimbabwe case was relevant to the present matter. It was Respondent position the principle that had been laid in that case was that tacit relocation applies where a fixed term contract expires without renewal and the employee continues to render his or her services to the employer with the employer paying the previously agreed remuneration. The Respondent submission was that the factual circumstances in this case were at variance and different from what transpired in Tobacco Processors Zimbabwe case. For that reason the Appellant claim of tacit relocation was clearly misplaced.

The Respondent also contended that on the basis of authorities as submitted the Appellant claim of legitimate expectation also had to fail. Reference was made to authorities including Magubane & Ors vs. Amalmagated Beverages [1997] 18 LIJ 1112 (CCMA); Magodora vs. Care International SC 24/14; UZ – UCSF Collaborative Research in Women’s Health vs. Shamuyarira 2010 (1) ZLR 127 (S); Grogan J in Workplace Law (the Edition, Juta  Co. (Private) Limited 2014.

EVALUATION

There are three issues for determination before the Court. The first is whether or not the Appellant was properly convicted on the charge. Second, whether the Respondent had predetermined the verdict and penalty in this case. Lastly, whether or not the Appellant contract was tacitly relocated in the circumstances. I shall address the issues seriatim.

WHETHER OR NOT APPELLANT WAS PROPERLY CONVICTED

The issue that is before the Court is to determine whether on the basis of the evidence and the factual circumstances of this case the Appellant was properly convicted of the charge levelled by Respondent.

The charge levelled was of breach of Section 4 (a) of Statutory Instrument 15 of 2006. The allegations were that Appellant had failed in his duty as a Driver to supervise his assistant to check on the bus, essentially that he failed to perform his duties as the Driver in charge resulting in his assistant smuggling onto the bus buns in excess of the Respondent bread and bun policy. It was not disputed by Appellant before Disciplinary Authority that his general duties included supervision of assistant.

During the hearing his main contention was that he could not have known his Assistant had carried in the Driver’s bag 44 Buns. It is clear from the record the Appellant did not dispute the lack of supervision on this trip. The Assistant in his evidence submitted that he had loaded the extra buns in the truck and hid them in Appellant’s personally allocated bag without Appellant’s knowledge. The witness evidence however would not have exonerated the Appellant in view of Appellant’s clear responsibilities towards the bag, the truck itself and the trip. He was in charge of the trip, driver bag, invoice books and the supervision of the Assistant.

The Court is sitting as an appeal court. It is trite that in sitting as an appeal Court it can only interfere with the determination of Disciplinary Authority in the event of gross unreasonableness of the finding. (See Servcor (Private) Limited vs. Tarisayi Muchenjeri SC 74/17)  It is clear that Appellant actions were clearly inconsistent with the fulfilment of the express and implied conditions of his employment. The determination of the Disciplinary Authority on conviction was properly arrived at in the circumstances.

I turn to address the second issue which is the claim that the determination by Disciplinary Authority handed down on 30th of March was pre-determined. This is clearly a baseless claim. A reading of the minutes of the disciplinary hearing clearly show that the disciplinary authority acted with fairness and impartiality in the disciplinary process. The Appellant was accorded his right to present his defence to the charge, to cross-examine witnesses and to make submissions in mitigation. The Disciplinary Authority basically followed all the tenets of natural justice. The Appellant has raised as his basis for claiming pre-determination that he was presented with the verdict/penalty in typed form on the same day that the disciplinary proceedings ended. The Appellant has however not pointed to any law which militates against a disciplinary authority handing down its judgement/verdict/penalty on the same date of hearing. That finding of pre-determination would apply in circumstances were the record shows that the employee was not accorded a fair hearing. This however is not the case in casu. In conclusion it is clear that the Respondent having followed a lawful, fair, impartial hearing the Appellant was properly convicted on the charge. The charge also being one that is serious and which resulted in a material breach of trust between the employee and employer the penalty of dismissal was clearly appropriate. See Alpha Madzima vs. Marange Resources (Private) Limited SC 12/18.

The last issue is whether there was tacit relocation of the contract of employment. The Appellant has also raised as a separate point under this same head that he was not terminated on notice. The facts clearly show that the Appellant was employed on a fixed term contract which was due to expire on 31st of March 2022. The Appellant was however terminated on the basis of a breach of the Disciplinary Code of Conduct under reference Statutory Instrument 15 of 2006.

Given this scenario there would have been no need for the employer to give the Appellant notice. The facts show Appellant had been found guilty of disciplinary charges on 30th of March, 2022 and a penalty of dismissal was imposed on the same date. It is the position at law that a dismissal following disciplinary process is another form of termination at law. There is no reason why the employer would have in such circumstances reverted to termination i.e. termination on notice. See the Supreme Court decision Don Nyamande vs. Zuva SC 43/2015.

On the issue of tacit relocation the Appellant submission is that his contract was tacitly relocated when the Disciplinary Authority advised him of his right of appeal after convicting him and imposing a penalty of dismissal on 30th of March, 2022. He has placed reliance on the Tobacco Processors Zimbabwe matter referred to supra. Tacit relocation occurs when, as it applies to contracts of employment, an employee’s fixed term contract expires without renewal and the employee continues to render service to the employer with the employer paying the previously agreed remuneration. The employee is deemed in such circumstances to be employed on the same terms and conditions as per the previous contract. This is as per Tobacco Processors judgement which the Court was aptly referred by the Appellant. On the basis of this same decision in order for one to succeed with a claim of tacit relocations four factors have to be established. These are as follows;

The employee has to have been engaged on a fixed term contract.

The fixed term contract ought to have expired.

The employee however continued to render services to the employer in return for the remuneration. In other words retention of the same terms and conditions of the employment contract.

Both parties must have intended to continue with employment relationship and the intention is judged from their conduct.

The determination of the issue as to whether a contract was automatically renewed in accordance with the principle of tacit relocation is a question of fact which has to be answered after analysis of particular facts and circumstances of each case. This is as per MAKONI JA in the same Tobacco Processors Zimbabwe judgement. She referred to Sun International (South Africa) Limited vs. Crocodile (2014) (ZANWHC 52) for this proposition. In this case the parties relationship was governed by a fixed term contract which was supposed to run from 1st of January, 2021 to 31st March 2021. On the basis of the Tobacco Processors Zimbabwe judgement referred to above there was no tacit relocation of the contract. The facts reveal that the Appellant was hauled before a disciplinary committee before the expiry of the employment contract. He did not continue to render any services to the Respondent after that date. Neither did he continue to receive any remuneration on from the Respondent. The Disciplinary Committee having imposed a dismissal penalty on 30th March, 2022 he was automatically terminated. There would have been no basis for the Respondent to pay him remuneration therefore. The contract of employment having been terminated through a dismissal penalty imposed following a disciplinary process the terms/conditions of the fixed term contract were automatically cancelled.  There was no intention on Respondent part to carry on with the contract. The court was not powered to any such intention. It is very clear that the factual circumstances in this case are at variance with the Tobacco Processors Zimbabwe case. The claim of tacit relocation is clearly misplaced in this case

In the result the Court hands down the following order;

The appeal is dismissed with no order as to costs.