Fungai Chimbetete v The University of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 MAY, 2023
JUDGMENT NO. LC/H/241/23
CASE NO. LC/H/722/21
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 MAY, 2023

AND 24 AUGUST, 2023

In the matter between:-

JUDGMENT NO. LC/H/241/23 CASE NO. LC/H/722/21

Fungai Chimbetete	Appellant

Versus

The University of Zimbabwe	Respondent

Before the Honourable L. Hove, Judge:

For Appellant		: T. Mutambo For Respondent	: C.J Mahara

HOVE J:

This is an appeal against the decision of the appeal committee which upheld the decision of the staff disciplinary committees’ decision to find appellant guilty of an act of misconduct and to dismiss him from university employment.

Background

The appellant was charged with contravening section 16, Schedule D, subsection 16.2 of the University of Zimbabwe employment code of conduct.

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

The specific allegations were that sometime in 2019, Mr. Chimbetete and Engineer Chipendo borrowed two welding machines and a helmet from the faculty of Veterinary Science to use at the Innovation Hub. Engineer Chipendo left the machines in the appellant’s custody as he was directly supervising contract welders on the site. After the completion of the task, the appellant was asked to return the borrowed machines to the faculty of Veterinary Science but he did not return the machines.

The initial hearing committee found, from the facts before it, that the appellant was negligent, that he was entrusted with the machines and was not careful in ensuring their safety. Neither was he careful to ensure that the properly was accounted for and secured.

The disciplinary committee dismissed the evidence of the appellant’s witness as they were not credible. The committee also found that the appellant was casual in the way he managed the security of the machines. It was further found that the appellant was working with the contract workers and ought to have been more vigilant as his duty of care was much higher in the circumstances. The appellant was inconsistent in his evidence.

On the issue of the signature, it was found that Engineer Chipendo signed on behalf of the welders and left the machines in the appellant’s custody. It was also noted from the evidence that there were no systems in place at the Innovation Hub and the appellant failed to put any in place to secure the machines.

The committee considered the evidence and concluded on a balance of probabilities that the appellant was guilty of the charge he was facing. He had failed to perform his duties as a supervisor and his attitude was bad for a supervisor. He ought to have been responsible and accountable for the property which had been entrusted to him.

The appellant was not satisfied with the committee’s findings and appealed to the appeal Committee. The Appeal Committee dismissed the appeal and the appellant noted the current appeal to the Labour Court. His grounds of appeal are five, these are they;

The Appeal Committee erred and misdirected itself at law in upholding the conviction of the appellant on the offence of any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract, whereas the facts showed that it was not established whether it was the conduct of the appellant that led to the missing of the welding machines.

The Appeal Committee further erred at law in upholding the decision of the Disciplinary Committee in convicting the appellant when it was of ascertained whether the safe keeping of the welding machines was a condition of his contract as a carpenter.

The appeal committee erred at law in not considering the testimony by engineer Tumbare who indicated that on the day in question there was chaos and no established system at the university and anything could have happened.

The Appeal committee further misdirected itself when it failed to appreciate that the appellant placed the welding machine as per the directive by Chipendo and what happened next was not his fault as he had no keys to the store room.

Alternatively, should the conviction be upheld;

The Appeal Committee erred in upholding the penalty of dismissal against the appellant, which penalty is excessive and induces a sense of shock given the circumstances of the matter. It merely paid lip service to the mitigatory factors. Also given the fact that the appellant has been rehabilitated since 2019 at the time the welding machines went missing.

These grounds of appeal will be considered ad seriatim.

Ground of Appeal No 1

Did the Appeals Committee err in upholding the conviction when the facts showed that it was not established whether the loss was due to appellant’s conduct.

The Appeals Committee upheld the conviction on the basis that the appellant’s conduct of being irresponsible and failing to account for the welding machines entrusted in his care as the supervisor was in breach of the express or implied terms of his contract of employment.

The appellant’s lawyer accepted that engineer Tumbare’s evidence was that there were no clear systems. This, in my opinion, ought to have made a conscious supervisor more alert to the need to establish secure systems rather than just leave the machines in a chaotic environment with no thought to their safety. The Appeals Committee properly found that the appellant was negligent and irresponsible. I find no merit in this ground of appeal.

Ground of appeal No 2

Whether it was a condition of the appellant’s contract to safekeep the welding machines.

The appellant had the welding machines entrusted to him as the head of the carpentry and welding sections at the Innovation Hub. The employer-employee relationship imposes a duty on the

employee to act in the employer’s best interest. This duty arises even though there is no express term to that effect in the contract of employment. This duty arises on the basis of the nature of the employer-employee relationship, as was stated in the Namibian case of Helao Nafidi Town Council v Shivolo [2016] NAHCMD [2016] that;

“The drift of Roman-Dutch and English authority is to the effect that the employer-employee relationship imposes a duty on the employee to act in the employer’s best interest. The Court cited with approval, the case of Lesotho Highlands Development Authority v Sole the liability for breach of a fiduciary duty is not necessarily delectual or contractual, but sui generis and will depend on the particular circumstances of each case”.

In the case of Council Scientific & Industrial Research v Fijen (1996) 17 IJL 18 (A) the court stated that;

“It is well established that the relationship between employer and employee is, in essence one of trust and confidence in that at common law, conduct clearly inconsistent therewith entitled the innocent party to conceal the employment agreement... It does seem to me that in our law it is not necessary to work with the concept of an implied term. The duties referred to simply flow from naturalia contractus”.

It is therefore clear that every contract of employment is hinged on a relationship of trust between the employer and the employee. This trust relationship is an implied provision in contracts of employment, even if it is not expressly stated, as was submitted by the respondent’s lawyer that;

“trust and confidence are built in the employment contract and they are a natural consequence of the employment contract”

From these authorities, it is clear that the circumstances of this case show that the appellant who a fiduciary duty, breached his duty by failing to act bona fide in the interest of the employer. He received two welding machines, left them in a chaotic environment with no regard to their security. Evidence showed that the appellant was at that time the supervisor of both the carpentry and building sections of the employer’s business at the Innovation Hub. The appellant ought to have ensured that the machines were kept secure and properly accounted for. This was his responsibility, as an employee he had the duty to act in the respondent’s best interest. See also the case of Madzima v Marange Resources (PVT) Ltd SC 51/16.

The respondent was able to prove from the evidence that the appellant occupied a supervisory role in the carpentry and welding sections. The extent and scope of his duties are linked to his supervisory role and he failed dismally to execute his duties. In Phillips v Fieldstone Africa (pvt) Ltd & another (2004) 25 ILJ 1005 (SCA) it was held that;

“The scope and extent of the employer’s duty was linked to the employee’s position. The more the senior the employee, the greater fiduciary duty on the employee.”

There is therefore no merit in the second ground of appeal.

Ground of Appeal No 3

Did the appeal Committee err in failing to consider the testimony of the Engineer Tumbare

The appeal committee did not fail to consider the witnesses’ evidence. It upheld the decision by the initial disciplinary authority. The initial disciplinary authority considered the witnesses’ evidence and commented as follows.

“The committee noted that engineer Tumbare submitted that there were no systems in place during the construction of the Innovation hub. The respondent managed to set up a system for the carpentry section. He (the appellant) could have organized the same system for the welding section.”

It is therefore clear that engineer Tumbare’s evidence was considered and the more chaotic the situation, the greater the need for the supervisor to act in the employer’s best interests by creating and organizing the setting up of a system that would secure and protect the employer’s property. A system similar to the one he had created for the carpentry section. The appellant was occupying a supervisory role and more was required and expected of him. He ought to have exhibited high levels of diligence in the protection of his employer’s property. The evidence from the appellant himself that the one who signed for the machines was the one who was responsible for overseeing the safety of the machines and also to account for them when the machines had been entrusted to him as the supervisor of the end users, shows that the appellant’s attitude to his duty and responsibilities was lackadaisical. He simply did not take seriously his fiduciary duty to his employer. His attitude was that since he was not the person who signed, then he had no responsibility to act in his employer’s best interest. Engineer Tumbare’s evidence did not in any way exonerate him. Again, the ground of appeal lacks merit.

Ground of appeal No 4.

The appeal Committee further misdirected itself when it failed to appreciate that the appellant placed the welding machines as per the directive by Chipendo and what happened next was not his fault as he had no keys to this store room.

This ground of appeal shows clearly the appellant’s attitude was poor and his lack of appreciation of the fact that he had a duty to act in the best interest of the employer. The appellant was clearly at fault in failing to secure the machines and failing to pay regard of the chaotic environment where anything could have happened according to his own words. The instructions from Chipendo did not take away his fiduciary duty to the employer. There is absolutely no merit in this ground of appeal.

Ground of appeal No 5.

Was the penalty excessive? Did it induce a sense of shock? Did the disciplinary authorities merely pay lip service to mitigation?

Penalty is an issue that is in the employer’s discretion and unless it can be shown that there was some improper exercise of discretion. This court cannot interfere.

The appellant in casu argues that he has a right in terms of section 12 B of the Act not to be unfairly dismissed. He does not in any way demonstrate that the committee improperly exercised its discretion in coming up with the penalty. No basis is therefore created for this court to interfere with the penalty. He argues instead that the disciplinary authorities arrived at wrong conclusion of facts and improperly convicted him.

It is an accepted principle of law that an appellate court will not interfere, on appeal, with factual findings unless the findings were grossly unreasonable. In Zinwa v Mwoyounotsva SC 28/15 the court stated that;

“an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable Tribunal applying its mind to the same facts would arrive at the same conclusion.”

In casu no gross unreasonableness in the factual conclusions has been alleged nor demonstrated.

As regards allegations of paying lip service to mitigation, I can do no better than quote Supreme Court decisions. In the case of Carnaud Metal Box v Ruzvezve SC 56/15 the court stated that the provisions of Section 12B (4) of the Act do not give unbounded license to the courts to alter punishment of dismissal imposed by an employer in a proper exercise of discretion.

In Mashonaland Turf Club v George Mutangadura SC 5/2012 the court stated that;

“in the exercise of their powers in terms of S 12B (4) of the Labour Act, the Labour Court and arbitrators must be reminded that the 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. See also ZB Financial v Maureen Manyarara SC 2/12 where the court stated that even where mitigation factors are taken into account, this would not necessarily assist an employee where the employer considers (as in casu), that the misconduct is so serious as to go to the root of the contract of employment”

The appellant was found guilty of failing to take proper care in the safe guarding of the employer’s two welding machines. He failed to realize his responsibilities in view of the fiduciary duty imposed by him by the very existence of a contract of employment between him and his employer. In my view, this is a serious breach that goes to the very root of a contact of employment, the employer formed the same view. I therefore find no serious misdirection on the part of the disciplinary authority at appeal level. The result is that there is no merit in this alternative ground of appeal.

In the result, the following order is made:

Order:

The appeal, being entirely without merit it be and is hereby dismissed with no order as to costs.

J U D G E