Godfrey Tirivanhu V Natpharm CO

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 17TH MAY, 2023 AND 5TH, JULY, 2023
JUDGMENT NO.LC/H/193/23
CASE NO. LC/H/166/22/22
GODFREY TIRIVANHU Appellant
And
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 17TH MAY,
2023 AND 5TH, JULY, 2023

GODFREY TIRIVANHU
Appellant

And
NATPHARM CO
Respondent

Before the Honourable Kachambwa, Judge;

For the Appellant: K. T. Mkanganwi (Legal Practitioner)

For the Respondent: P. Dube (Legal Practitioner)

KACHAMBWA, J:

The Appeal

1. This is an appeal against the decision of the Appeal Authority set up by the respondent (though Appellant says Appeal Committee). The Appellant was charged of three and convicted of two acts of misconduct in terms of paragraph (f) of section 4 of Statutory Instrument 15 of 2006 to wit, gross incompetency or inefficiency in performance of work. A penalty of dismissal was imposed. An appeal at the workplace was unsuccessful.

The charges

2. The charges arose from an audit taken of the operations at the Appellant’s workplace. The charges were framed as follows:-


CASENO.
LC/H/166/22

“i) 	Sometime in 2019, the Harare Regional store undertook an accelerated distribution programme to ensure that medicines were quickly moved to health institutions. After the programme had ended, it was noted that some orders done during the programme were processed with serious discrepancies which resulted in variances of stock balances. You were aware of the potential risks associated with this type of distribution but made no effort in implementing mitigating measures as the Branch Manager.

ii) 	In the same year 2019, you were supposed to conduct the mid-year stock take from 8 July 2019 to 12 July 2019. The task took more time than expected because of the need to conduct investigations between the physical and system figures. Your subordinates took long to resolve the variances issue because of an inadequate management support that was to come from you.

iii) 	Following the mid-year stock take, you were advised to respond to the PKF audit findings regarding the variances of stock figures. You were expected to take the lead in resolving the variances but you did not.”

3. The Appellant was convicted of the first two charges/counts and was dismissed from employment.

The Grounds of Appeal

3. The Appellant raised eight grounds of appeal as follows;

“4.1. The Respondent’s Appeals Committee grossly misdirected itself in upholding the Disciplinary Authority decision that the Appellant had been guilty of contravening his employment contract by failing to mitigate losses associated with Accelerated Distribution. It ought not to have ignored Accelerated Distribution had been done as a once off thing not provided in the
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 CASE NO. LC/H/166/22

Respondent’s Standard Operating Procedures and therefore the whole management should have assumed responsibility as a whole in mitigating the losses instead of using the Appellant as a sacrificial lamb.

4.2. The Respondent’s Appeals Committee grossly misdirected itself in upholding a decision of the Disciplinary Authority by ignoring that the problems associated with Accelerated Distribution such errors, omissions, quantity discrepancies, illegibility and amongst other problems had their root in that the exercise was done manually outside the Navison system.

4.3. The Respondent’ Appeals Committee grossly erred in upholding the Disciplinary Authority decision which treated it as irrelevant that the Respondent’s representative had distanced himself from the negative variance figure of USD15 017 389,00 in the charge sheet and settled for a negative variance of the figure of USD4 360 809,77 when it was clear from the Appellant’s performance appraisal the negative variance was USD51 646,42 which was below 1% target of the variance expected in terms of Respondent’s performance appraisal policy.

4.4. The Respondent’s Appeals Committee grossly erred in upholding the Disciplinary Authority decision that the Appellant had contravened his contract of employment by failing to carry out Accelerated Distribution and Mid-Year Stock Take by treating it as irrelevant that this was at variance with Appellant performance appraisal form wherein Appellant had been awarded satisfactory performance for carrying out Accelerated Distribution and Mid-Year Stock Take.

4.5. The Respondent’s Appeals Committee grossly erred and misdirected itself in upholding the Disciplinary Authority decision of ignoring that the Harare Regional Stores time frame for conducting stock take was too little as it had not placed all orders in the Navison system soon after concluding Accelerate Distribution which was an exhaustive exercise.

4.6. The Respondent’s Appeals Committee grossly misdirected itself in upholding the decision of the Disciplinary Authority to ignore the concession from the Respondent’s representative that there were some people within management who wanted to get rid of him by treating such evidence of constructive dismissal as totally irrelevant in determining the decision of whether or not the Appellant had been grossly inefficient and grossly incompetent in conducting his duties.

4.7. The Respondent’s Appeals Committee misdirected itself in ignoring that preliminary Mid-Year Stock Take Report outlined challenges for Harare Regional Stores mid-year stock take which were beyond the control and influence of the Appellant in conducting stock take within five days.

4.8. The Respondent erred in placing more emphasis on the seriousness of the offence in imposing a penalty of dismissal and ignoring that Appellant had a clean disciplinary record for a period of fourteen (14) years in service and other mitigating factors like trajectory performance he exhibited.”

5. The Respondent opposed these grounds. It is unfortunate that the Respondent did not compare these grounds of appeal with the previous grounds. They are difficult to marry. There is no clear and straight forward link. They are lengthy and rather long-winding. The Appellant seems to be bent on denying every finding that he could think of. They verge on being prolix. They do not critically consider the charges where it says that he did not make an effort or that his support was inadequate. Those are the simple issues to address. What did he do?. That is what the parties should have applied their efforts on.

The Arguments

6. On the first ground of appeal the appellant’s complaint is pegged on two points. On one hand he said that the operation was new and without established risk matrixes. On the other hand he said that the blame should have been shared by the whole management and not him alone. The understanding seems to be that although there was loss the appellant is not the only one responsible. The management was said to be using him as a sacrificial lamb.
 7. The respondent’s position was that the appellant had the primary responsibility and in any case he had participated and as the point person, in drafting the risk matrix. Further, a policy on distribution already existed. The evidence of these is to be found from page 91 to 219 of the record. Therefore, appellant being the responsible person had to face the music and not the whole management as he wanted to see happening. The respondent’s argument in short, was that the bark stopped with the appellant in all the areas of blame. The appellant was otherwise the leading light in all this.

8. On the second ground of appeal the appellant basically continued with his theme of the absence of systems. He also blamed that it was done manually. The respondent’s response was that there was nothing irrational about these findings of fact. As a result an appeal court has no reason to upset them.

9. Coming to the third ground of appeal the appellant’s argument was twofold. Firstly he said that the figures were wrong because they treated United States currency and Zimbabwean currency figures as one. This gave a large variance whereas the actual variance was within the accepted limit of 0,1% as compared to the limit of not more than 1%. The Rtgs figures were taken to be United States dollars. Therefore a finding of guilty was said to be improper. The respondent was said to have acted out of malice and hatred for the appellant. It was said that the respondent had not investigated before charging and carry out the hearing. The charges were said to be contrary to the performance appraisals results which had found the appellant’s performance to be satisfactory.

10. The respondent was of the view that the quantum was irrelevant to conviction as it is competent to convict of a lesser quantity than that one was charged of. The performance appraisal which is in conflict with findings on the ground should be ignored.


11. The court observes that indeed it is competent to find guilty of a lesser amount than charged of. However in this case the issue is that of gross incompetence or inefficiency that is that the quantum shows incompetency or inefficiency. But if it falls within the allowed deficiency surely it cannot be used for charging an employee. It may be exempt. The respondent did not deny this lesser amount. It took it as if this was a charge of theft of a given amount of which a lesser amount was proved. Theft was not the charge.

12. On the fourth ground the appellant’s position was that the charge was at variance with the performance appraisal and as such it was a contradiction which is not permissible. To this the respondent kind of rumbled about board policies being guidelines that are not binding in the contract. It thereafter says that an appraisal policy does not excuse an employee from omissions that may be discovered by the disciplinary authority. In other words where new information is found an employer is not precluded from charging and convicting an employee of a charge of misconduct despite a favourable performance appraisal.

13. Grounds five and seven were about time limitations wherein the appellant said that the time was not adequate. That being so he should not be blamed. This was said to be coupled with the issue of systems in that the whole project was not in the Nevison system that the company was using. It was a new and once off exercise for that matter. To this argument the respondent points out that the appellant being the person in charge he had the leeway to organise accordingly. He was asked about the issue of time and he did not raise it as an issue as such. It was for him to demonstrate that he was forced into doing things within impossible time limits. He did not do so at the hearing. So it was argued that the issue was just a scapegoat.

14. The sixth ground talks to constructive dismissal caused by some managers who were biased against the appellant. These wanted to get rid of him. It was argued that the Appeals Committee should have taken cognisance of this and decided in favour of the appellant. After all it was admitted by some of the witnesses that the appellant had been sacrificed for the ills of other managers. To this the respondent simply argued that the decision was rational and that the appellant had not argued and besides that, there was no demonstration of unreasonableness or irrationality. It argued that the law was clear that in order for an appeal court to interfere with a decision of a lower court it must be shown that there was a clear misdirection on the facts. Such demonstration was said to be missing in the appellant’s argument.

15. Coming to the eighth ground, the appellant’s position was that the penalty was ill thought as it was not commensurate with the case. He said that the respondent paid lip service to the clean record of the appellant as well as the performance appraisal. He also argued that the penalty was motivated by the wrong information that the respondent had engaged the services of auditors at its expense. He said that the auditors were engaged by the donors of the pharmaceuticals and not the respondent. To that end there was no financial costs incurred by the respondent. The appellant also argued that the issue of the engagement of auditors was not placed before the disciplinary tribunal and to that end it was improper to consider it in coming up with a penalty.

16. The Relief Sought

The appellant prayed for a setting aside of the decision of the disciplinary authority and for his reinstatement. Failure to be reinstated he prayed for damages in lieu thereof. He did not include the possibility of the appeal against conviction failing and therefore there being need for an appeal against the penalty only/alone. That prayer precludes this court from considering the issue of the penalty. It is not appellant’s request.

The Law

17. Both parties are very clear on the law on appeal on the facts. Relevant authorities were cited to the extent that the arguments almost got lost in the cases cited in that the parties failed to relate the facts to the authorities as such. The case classicus in our jurisdiction is probably
 Hama v NRZ 1996 (1) ZLR 1996 (1) ZLR 305 (S). In that case at page 670 Korsah JA says that;
 "An appeal court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has been applied his mind to the question to be decided could have arrived at such a conclusion".

18. This line of cases has been churned out consistently. In Hwangie Colliery Company Limited v Ndlovu & Anor SC 46/2020, the Court reiterated the point quoting with approval the case of Barros v Chimpondah 1999(1) ZLR 58, wherein at page 62 the court said that;

"It is not enough that the appellate court thinks that it would have taken a different course from that of the trial court. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes facts, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion".

19. It is indeed a very high standard that an appeal court is required to conform to. The court cannot willfully upset the decision of a lower court on the findings of fact and on the penalty.

The Present Appeal

20. The appeal is basically on the findings of facts. It also touched on the discretion on penalty but that was not carried through to the prayer. There was no request.


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 to the court to deal with it separately. It is dealt with in the finding of guilty only in that once not guilty the penalty false away. The possibility of a lesser penalty in the event of the appeal failing on conviction is left out in the prayer.

21. A reading of this appeal shows that the appellant complained that he was made a sacrificial lamb. He said that other members of the management share the blame. They should be with him in the sinking boat. That could well be so but the very important point is that this is an obtuse admission of blame. This case is really about who should be held responsible for the debacle. That the work was standard is not arguable. It is there for everyone to see. The question is on who must bite the bullet. The appellant was the point person. He is the one who accounts for it. His accounting is to blame others and cry that they must join him or else he is being sacrificed. This is where the appeal falls. After all is said and done it cannot be said that the findings of facts are far-fetched. Even if it is accepted that the amounts could be lowered the appellant is still the person liable for the misdemeanours. For that reason he cannot escape the charge. He remains responsible for the failure to start audit in time. It was up to him to seek more manpower or whatever was required to be done. He cannot escape. He cannot blame others for what was purely his responsibility. I do not think that the findings of fact that he is the person liable is outrageous in any way. He may be excused on the small amount but not on the other factors. Therefore there would be no need to upset the decision of the lower court. Even the penalty itself is not affected. There is no misdirection on the discretion that the employer exercises in considering a penalty.


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Disposition

22. In view of the position that there is nothing outrageous in the findings of fact the appeal may not succeed. It is accordingly ordered as follows;

The appeal be and is hereby dismissed with costs.
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