Everjoy Maniwa v Zimbabwe Revenue Authority

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/247/2020
HARARE, 02 JUNE 2020
CASE NO. LC/H/102/19
CASE NO LC/H/13/20
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THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/247/2020

HARARE, 02 JUNE 2020		                 CASE NO.   LC/H/102/19

AND 06 NOVEMBER 2020

EVERJOY MANIWA 							  Appellant

ZIMBABWE REVENUE AUTHORITY 					  Respondent

Before Honourables G. Musariri, & E. Makamure, Judges

For Appellant		-	Mr T. Mupangwa, Attorney

For Respondent		-	Mr. G Sithole, Attorney

MUSARIRI, J:

Appellant appealed to this Court against her dismissal from employment by Respondent.   She was charged with seven (7) counts of misconduct.  These were violations of Group D – Most serious offences – category 25. She was acquitted of four of the counts but found guilty on 3 of the counts.   Her ground of appeals were three- fold as follows,

“1. The Grievances and Disciplinary Committee erred and misdirected itself in finding Appellant guilty of Count 1 of the charges, as the duties she is charged with do not fall into duties assigned either expressly or tacitly.

2. The Grievances and Disciplinary Committee erred and misdirected itself by finding Appellant guilty of Count 4 of the charges.  There was clear evidence that the Appellant carried out her duties by doing the requisite user acceptance tests in her department account and that any further tests and requisite documentation would be in the possession of the project manager a position which Appellant did not posses.

3. The Disciplinary and Grievance Committee erred and misdirected itself by finding guilty of count 6 of the charges by failing to take into account the fact that to complete her duties, Appellant relied on the input of another department.  She could not solely perform the duties of both departments in the execution of her duties”.

Respondent opposed the appeal. I will deal with the grounds of appeal ad seriatim

Ground No 1

At the material the Appellant worked for Respondent as Acting Director, Finance, Corporate Planning & Administration.  After an attempted fraud involving a substantial amount of foreign currency, Respondent resolved to upgrade its payment system Paynet.  After another attempted fraud Appellant was charged with misconduct.  According to her she was found guilty of “failing to put measures in place to deal with risks during implementation of the upgraded Paynet system…….”   She argued that she was never expressly or tacitly assigned the Paynet project.

Respondent answered this claim in her opposition thus,

“9.2.1 The Appellant accepted that she was the one who had appointed Maneya to represent the Finance Division in the Paynet upgrade implementation team and to oversee the day to today implementation of the project on behalf of the Department to the successful implementation of the project is evidenced by the need to second someone to implement the project on behalf of the Department.  The delegation of that role could not have stopped there, the Head of department retained the oversight role.  Delegation cannot be without responsibility.  The Appellant accepted in her own evidence that no terms of reference were given to Maneya.

9.2.3 The Appellant sought to absolve herself of any responsibility in respect of Mr Maneya’s appointment and stated that it was done on the direction of the then Finance Director.  However, the Appellant then took over that position over a few months later.  She ought to have known the key role of the Finance Director in the implementation process and the responsibility of oversight that attached that position”

Appellant was the head of Finance.  The buck stopped with her in that department.  The employer suffered serious fraud attempts amounting to millions of USD Dollars.  It was prudently resolved to upgrade their payment system.  That was done by their IT Department.  However Finance was intricately involved as they were the main users of the upgraded system.  It was imperative that Finance fully participated in the implementation and testing of the upgrade.  Finance delegated Maneya to the project.  However as Respondent rightly stated that the Head of Finance retained the oversight responsibility over Maneya.  Appellant as head was ultimately answerable for the failure in putting in risk assessment measures. She cannot cope out by shifting blame to Maneya a subordinate of hers.  The remarks of the Supreme Court on a similar issue are apposite TM vs Mangwiro SC57/03.

“I find, again, that respondent’s conduct is suggestive of an inability to appreciate the importance of his responsibilities.  It also indicates a readiness to delegate, which was not matched with an appropriate degree of supervision.  That such conduct fell short of what is expected of a manager was underlined by the resultant financial loss to the appellant…”

Ground No 2

This concerned the user acceptance test.  The Disciplinary Committee’s findings thereon read thus

“7.5 The Committee found that user acceptance testing was only limited to testing automatic upload of payment batches from SAP to Paynet and also

testing whether the new functionality would prevent users from amending payment batches in Paynet.

7.6 There was no evidence that other aspects of the new upgraded Paynet system such as deletion of batches, management of administrator profiles, system checks and controls among other, were tested.

The Defendant was therefore guilty of Count 4”

Appellant maintained that she did the “requisite user acceptance tests”.  She further stated that the documentation would be in the possession of the project manager.  The essence of the charge was failure to do user tests and keep documentation thereof.  My reading of the finding against her was that she did part of the user tests but not the full tests.  Further she did not prepare and keep documentation of the tests.  Her response was to shift blame to the Project Manager.  As l have already indicated, Appellant was finally accountable for finance’s part in the Paynet project.  She could not pass the buck to Maneya.

Ground 3

This ground related to the charge in respect of the outstanding reconciliation items.  Appellant stated at the hearing

“Yes, l had agreed that there were long outstanding it.  But l gave reasons”.

Respondent dealt with the reasons thus,

“36.7 Her defence was that she was not getting co-operation from the Domestic Taxes Department.  This defence is very weak:

Firstly, the duty to reconcile VAT items timeously is that of the Finance Department and accordingly she was supposed to ensure that Domestic taxes department send the documents required on time;

Secondly, there was no evidence, oral or otherwise, to effect that Respondent undertook any initiatives to secure the co-operation of Domestic taxes.  She neither engaged the Commissioner Domestic taxes nor attempted to enforce the internal Service Level Agreements.

Thirdly she did not escalate the matter to the Commissioner General or draft a report or memo thereto advising of the challenges she was facing”

That there were outstanding reconciliations was common cause.  Appellant’s Department was responsible.  What did she do about it?  The answer is nothing.  Or at least nothing effective in dealing the outstanding items.  She claimed lack of necessary co-operation form other departments.  As pointed out she could have escalated the matter to the Commissioner General to break the log-jam but she did not do so.  In the circumstances the Disciplinary Committee correctly found her guilty of misconduct.

Disposition

I consider that Appellant failed to substantiate any of her grounds of appeal.  Accordingly the appeal  cannot succeed.  It ought to be dismissed.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

Each party shall bear its own costs

G MUSARIRI

J-U-D-G-E

I agree      			  E MAKAMURE

J-U-D-G-E