Davies Granite (Pvt) Ltd v Michael Mandimika

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MT/50/2014
HARARE, 20 JANUARY 2014
CASE NO.
JUDGMENT NO. LC/H/50/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MT/50/2014

HARARE, 20 JANUARY 2014    		     	   CASE NO. LC/MT/107/12

& 25TH APRIL 2014

In the matter between:-

DAVIES GRANITE (PVT) LTD					Appellant

And

MICHAEL MANDIMIKA						Respondent

Before Honourable Manyangadze J

For Appellant 		-	Advocate H.M. Moyo (Legal Practitioner)

For Respondent		-	Mr. W. Ndlovu (Trade Unionist)

MANYANGADZE J:

This is an appeal against an arbitral award which overturned the Appellant’s Disciplinary Committee’s decision which had found Respondent guilty of misconduct and dismissed him from employment.

The Respondent was employed by the Appellant as a Sales Head of Department.  The Appellant is a company that is in the business of crushing and selling quarry stones.  It is alleged that the Respondent, in the course of his duties, sold some quarry dust without following sale procedures, and converted the proceeds to his own use.  The illicit sale was conducted with two buyers, who, unbeknown to the Respondent, were private investigators set up by the Appellant.

When details of the unlawful sale were reported to the Appellant, Respondent was suspended from duty on 21 November 2011.  The letter of suspension contained the misconduct charges against the Respondent.  He was charged with contravening section 4 paragraphs (a) and (d) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006.  Section 4 (a) reads:

“any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions  of his or her contract.”

and Section 4 (d|) reads;

“theft or fraud”

For paragraph (a), the suspension letter particularises the misconduct as;

“… in that on several occasions you met with prospective customers intending to enter into illicit deals which resulted in financial prejudice to the company”

The particulars for paragraph (d) were

“… in that you solicited or intended to receive or received money in exchange for sale of company goods with the intention of benefiting at the expense of the company.”

The Disciplinary Committee found Respondent guilty and imposed a penalty of dismissal, in December 2011.

The Respondent’s Appeals Committee dismissed Respondent’s appeal and upheld the dismissal, in January 2012.

The matter went to a Labour Officer, following the procedure in S.I. 15 of 2006 in terms of which Respondent was charged, and ended up at compulsory arbitration.

The arbitrator overturned the decision of the Disciplinary Committee, prompting this appeal.

In its grounds of appeal, Appellant avers that the arbitrator misdirected himself on the law by applying a higher standard of proof than was required in the labour dispute.  It is averred that he only paid lip service to the principle of proof on a balance of probabilities.

It is further averred that the arbitrator ignored critical evidence that linked the Respondent to the acts of misconduct alleged.  This evidence is clearly seen in the minutes of the disciplinary proceedings, asserted the Appellant.

On the other hand, Respondent’s contention is that there was insufficient evidence to convict him.  The evidence from Appellant’s witnesses was marred by contradictions. He was falsely incriminated.  The arbitrator did not misdirect himself in overturning the Disciplinary Committee’s decision.

A look at the reasons for the Arbitrator’s award, and the submissions by the Respondent, indicates that their focus was on theft as the misconduct charge.  For the arbitrator   it seems the question was whether or not theft was proved.

The Appellant, in the submissions made on its behalf, pointed this out as a fundamental misconception.  It was pointed out that the misconduct charges were not   theft, but a contravention of section 4 of S.I. 15 of 2006.  The charges have already been quoted above.  Of particular significance is section 4 paragraph (a), which proscribes conduct inconsistent with the fulfillment of the express or implied conditions of the contract of employment.

One needs to look at the record of the disciplinary proceedings to find out what it is Respondent is alleged to have done.  Once that is ascertained, it is then determined whether or not the conduct displayed is an infraction of the cited provisions.  One of the investigators, Michael Gapare, told Respondent he wanted some “cheap sand”.  The Respondent told him to keep in touch.  Eventually, on 11 October 2011, he bought sand, from the Respondent.  He paid $ 60,00 for the sand and $ 150,00 for transport.  No receipts were issued.

The other investigator, who  simply appears as John in the minutes, confirmed the discussion on purchasing sand, in the course of which money was paid for which no receipt was issued.

Respondent made an issue out of the witness’s  stating that a D40 truck went out.  Later on, it was said that it was a D04 truck that went out.

The witness, at some point, said nothing went out.  This however, is to be taken in the context that there was more than one incident in which discussions took place.  The expression “nothing went out” could have been with reference to one of the incidents, and cannot necessarily be taken to mean nothing at all went out, on any occasion.

The security guard, Gideon Bosha, said he knew Respondent as someone who worked at the office.  Gideon told the Committee that Gapare asked for cheap sand and he referred him to the Respondent.  He indicated that he gave Gapare Respondent’s phone number, but told Gapare not disclose where he got the number from.  Gideon also talked about an arrangement for Gapare to meet Respondent at his house.  It also emerged from Gideon’s evidence, that Gapare went to Gideon’s house, in pursuance of discussions to see the Respondent for the procurement of cheap sand.

The Disciplinary Committee found it suspicious conduct on the part of the guard, that he would entertain customers in town or at his house and then refer them to the Respondent.  It expressed the view that “Michael (Respondent)’s activities are not conducive to company business and he is putting the company at risk.  He is conducting his own business.  Investigators cannot go from Bulawayo to Harare and pinpoint Mandimika (Respondent) … doing business after hours is extreme”.

It can be seen that the Disciplinary Committee assessed Respondent’s conduct in the light of the three witnesses’ evidence.  The security guard, it appears, was facilitating clandestine deals on behalf of the Respondent.  To that extent he was an accomplice.  However, the two investigators were not accomplices.  They were on an evidence gathering mission.  Their evidence therefore, is not as tainted as that of the security guard.  However, if all the evidence is taken cumulatively, the highlighted contradictions notwithstanding, it establishes Respondent’s  engagement in transactions not sanctioned by the employer.  These were in connection with the procurement of sand or quarry stones without following required procurement procedures.

In my view, the evidence placed before the Disciplinary Committee made out a case in terms of the statutory provisions cited.  The arbitrator misdirected himself by disregarding this evidence and absolving Respondent from liability.  The facts, in my view, satisfactorily establish the commission of the misconduct charged, as particularized by the Appellant.  There was no basis for upsetting the findinds of the Disciplinary Committee.

As for the penalty of dismissal, it is clear the Appellant viewed the Respondent’s acts of dishonesty seriously.  The Appellant’s Disciplinary Committee considered Respondent’s activities as

“not conducive to company business and he is putting the company at risk, he is conducting his own business.  He is not credible and trustworthy.”

The misconduct went to the root of the employment relationship.  In Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (SC)  McNally JA stated:

“I consider that the seriousness of the misconduct is to be measured by whether it is “inconsistent with the fulfillment of the express or implied conditions of his contract”.  If it is, then it is serious enough prima facie to warrant summary dismissal …   Then it is up to the employee to show that his misconduct though technically inconsistent with the fulfillment of the conditions of his contract, was so trivial,  so inadvertent, so aberrant or otherwise excusable that the remedy of summary dismissal was not warranted. “

More recently, Ziyambi JA stated in Mashonaland Turf Club v George Mutangadura S.C. 5/12, at page 3 of the cyclostyled judgment:

“In the exercise of their powers in terms of Section 12 B(4) of the Labour Act, the Labour Court and arbitrators must be reminded that that section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it.  In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root  of the contract of employment.”

In casu, the misconduct perpetrated by Respondent can by no means be viewed as trivial or inadvertent.  The Appellant did not misdirect itself by imposing a penalty of dismissal.  The appeal cannot succeed in the circumstances.

It is accordingly ordered that;

The appeal be and is hereby allowed with costs.

The decision of the arbitrator dated 17 September 2012 be and is hereby set aside.

The decision of Appellant’s Disciplinary Committee dismissing the Respondent be and is hereby upheld.

…………………………………………..

Manyangadze J