Grace Katurura v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/399/2014
HARARE, 28 MAY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/399/2014

HARARE, 28 MAY 2014    		                       CASE NO. LC/H/1060/13

AND 04 JULY 2014

In the matter between:-

GRACE KATURURA						Appellant

And

ZIMBABWE REVENUE AUTHORITY				Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Ngwarati L (Trade Union)

For Respondent		-	Nyamutawa V (Legal Officer ZIMRA)

MUZOFA J:

The Appellant was employed by the Respondent as a revenue specialist based at Harare Port.  Following a discovery that she had received gifts from Respondent’s clients she was charged in terms of Respondent’s Code of Conduct.  Appellant was charged with a charge D17 alternatively D25 of the said Code of Conduct.  The disciplinary committee found the Appellant not liable for the charge under D17 but found her liable under D25 of the Code.  Appellant appealed to the Appeals Committee.  The appeal was unsuccessful. She then noted an appeal against the appeals committee’s decision to this Court.  The appeal has six grounds of appeal which in my view raise the following issues:-

Whether or not the Appellant entered a plea to the charge under D25 and the effect thereof.

Whether Appellant solicited for a gift.

Whether there was prejudice suffered by the Respondent.

The accuracy of the Disciplinary and Grievance Committee (DGC) minutes.

I will deal with the grounds of appeal in seriatim.

Whether a plea was entered.

What the Appellant raise is a procedural irregularity during the proceedings.  Where a procedural irregularity is alleged, it must be shown that it resulted in some prejudice on the party alleging such Tichawana Nyahuma v Barclays Bank SC 67/05.

The record of proceedings filed of record with the minutes of the DGC outline what transpired.  At the beginning of the hearing the following conversation ensued.

“Chair		-	According to the charge sheet you are being charged with

Charge D17 alternatively D25, how do you plead.

Defendant	-	We need clarification of the charge

Respondent	-	Is it D17 or D25 because it seems as if complainant is saying if I

Don’t get you on D17 I will get you on D25.  We are not clear

Of which charge the complainant is using.

Chair		-	We hear you and as we make deliberations that will be

Addressed.

Defendant	-	D17 defendant is pleading

Respondent	-	Not guilty.”

Thereafter the Chairperson invited the complainant to layout the charge briefly.  The complainant then set out briefly the facts upon which the charges stemmed from.  The chair enquired for the second time the plea.  The response was “We still stand by our first plea”.

It is upon the above engagement that Appellant argued that there was no plea entered on the alternative charge therefore the conviction on the alternative charge was improper.  Respondent argued that the Appellant was given an opportunity to respond to the charges.  In my view what transpired before the DGC is clear.  The Appellant was invited at the first instance to plead.  It seems the Appellant’s representative did not appreciate the manner of charging in the alternative.  This is a very well acceptable position at law.  An accused can be charged in the alternative.  What that means is that where the main charge is proved the others fall.  Where the main charge is not proved and there is evidence to substantiate the alternative charge it can stand it is therefore competent to charge in the alternative.  The Appellant thereafter chose to enter a plea of not guilty to the charge under D17 and did not enter a plea under D25.  Thereafter brief facts were outlined that included evidence which substantiated the charge under D25.  The Appellant still pleaded not guilty.

The Appellant cannot succeed in alleging that she did not defend herself on the charge under D25.  I say this because the Appellant was served with the charge bearing the two charges in the alternative.  This initial process is one of the key tenets towards achieving natural justice.  It was meant to give the Appellant an opportunity to get to know what she was facing and prepare her defense.  The case of Rwodzi v Municipality of Chegutu HH 86/03 outlines what the tenets of natural justice entail.  I believe in casu these were satisfied.

In any event the charge under D25 which is conduct inconsistent with the fulfillment of one’s contract of employment was partly admitted by the Appellant.  The minutes of the DGC show that the Appellant did admit that she received a comforter from one Laxi Boddapati which is conduct in contravention of clause 4.9 of the Code of Conduct which outlines the ethical conduct of employees.  Even if the Appellant did not plead to the alternative charge it was not shown what prejudice was caused.  It is an established principle that an irregularity which does not cause prejudice should not by itself vitiate proceedings.  This ground of appeal has no merit and is accordingly dismissed.

Whether Appellant solicited for a gift

The appellant was charged under D17 a charge she was found not liable.  Appellant was found liable for conduct inconsistent with the express or implied conditions of the contract of employment.  It was complainant’s case that she accepted a gift from a client in contravention of the respondent’s Code of Conduct particularly clause 4.9 thereof.  Clause 4.9 of the Code of Conduct provides:

“4. Employee Code of Ethics.

Not accepting gifts from clients, general public or suppliers which compromise the execution of duties and/or the authority’s core values.”

Under this charge the conduct that the Respondent intended to sanction was acceptance of gifts. The complainant in outlining the facts clearly stated that appellant accepted a present from one Laxi Boddapati a Finance Director of Blankets for Africa.  In my view the appellant is mistaken in addressing the ground of appeal that she did not solicit for a gift.  The charge she was found liable for is accepting a gift, appellant should have exercised her mind on this aspect.  In any event the appellant admitted that she accepted a gift from Boddapati.  From the facts Blankets for Africa was a client of the Respondent.  This ground of appeal has no merit and therefore it is dismissed.

Prejudice

It was appellant’s submission that the receiving of the comforter took place outside working hours and no prejudice was suffered by the Respondent as a result of the conduct.  It is not in dispute that the appellant received the said gift outside working hours.  The Respondent’s Code of conduct outlines its Code of Ethics which also regulates the conduct of its employees with its clients.  One of the ethical values being that employees do not receive gifts from clients “which compromise the execution of duties and/or the Authority’s core values”.  In this case there was evidence that the appellant got to know Laxi Boddapati as a result of her work.  Boddapati was the Finance Director of Blankets for Africa.  The background being that on the 23rd of July 2013 appellant in her official capacity was supposed to conduct an inspection on a bonded warehouse where Waverly Blankets and Blankets for Africa had its wares kept.  It was submitted that the two companies have the same management.  Appellant could not conduct the inspection since the goods were not in order.  She was in company of one Chinyongo who was more under mentorship and this was his first inspection.  The two left an instruction for the goods to be placed in order.  They were to return for the inspection on the 1st of August 2013.

In terms of appellant’s duty it was a requirement that after an inspection an entry was to be made in the inspections register.  Appellant duly entered what transpired on the 23rd day of July 2013 in the Register.  She had fined Blankets for Africa $400 for the disorderly goods.  She noted that a re-inspection was to be conducted.  It seems by the 1st of August the bonded warehouse was still not in order.  No inspection was conducted.  There was no indication what entry was made in the inspections Register.  However appellant had not submitted a report to her immediate supervisor on the visits.  It was therefore assumed that the appellant was still engaging the clients.  The minutes show that there was suspicion that there was a considerable figure in duty at stake.  This is because the appellant had indicated that Blankets for Africa had consumed in retrospect.  However no conclusive figures had been calculated by the appellant.

The Background to this case show that Blankets for Africa was respondent’s client.  There was still some outstanding business between respondent and Blankets for Africa.  There was a likelihood that appellant was still the officer in charge of dealing with Blankets for Africa on behalf of respondent.  This is so because until the 29th of August 2013 the day appellant received a comforter from Boddapati there is no evidence that the issue between Blankets for Africa and respondent had been finalized.  In my view if one of the core values of the respondent is that employees should not receive gifts.  The issue of prejudice falls by the way side.  What should be shown is that there is a possibility that the gift can compromise the execution of duties.  The Respondent had outstanding business with Blankets for Africa.  The appellant was most likely to continue to engage the client on behalf of the Respondent.  She had kept the report in her drawer she had not submitted her report on Blankets for Africa.  A reasonable inference can be made that this was work in progress.  In that event the question is after receiving the gift of a comforter was that not going to compromise her duties in future visits?  Clearly the chances were high that she would be compromised.

The charge does not necessarily require that it be shown that there was prejudice.  The conduct inconsistent with her duties was the acceptance of a gift from a client.  In order to satisfy the charge the requirements are simple.  The first requirement is that a gift is received.  It was not disputed that the appellant received the gift of a comforter from Blankets for Africa through Boddapati.  The second requirement is that the gift must come from a client.  It is also not in dispute that Blankets for Africa was respondent’s client.  The third requirement is the compromise of execution of duties.  The appellant still had to inspect the warehouse and there was evidence that Blankets for Africa had consumed goods in retrospect so there was some duty at stake.  The inspection had not been concluded.  In my mind the conduct that the code envisaged to punish was satisfied by appellant’s conduct.  This ground of appeal also does not have merit and is therefore dismissed.

Accuracy of minutes

The issue raised by appellant was that the appellant was not given the DGC minutes to proof read and sign to confirm the accuracy of the minutes.  It is clear from the said minutes that both the appellant and her representative did not affix their signatures on the minutes.  That on its own is not proof that this was not an accurate record of the proceedings.  Appellant raised the issue that the minutes left out some information.  Nothing turns on this ground of appeal.  The charge with which appellant was convicted of she partially admitted that she received a gift.  The circumstances giving rise to the receiving of the gift are not in dispute.  This ground of appeal is meritless and is dismissed.

In her heads of argument, appellant raised issue that she was not given an opportunity to mitigate.  In essence the DGC did not comply with section 12 B (4) of the Labour Act [Chapter 28:01] and also relied on the case of Nel Zimbabwe v Lynette Makuzva SC 24/06.  Respondent submitted that appellant in her closing submissions addressed the court in mitigation.  However the record of proceedings show that the appellant was not invited to address the DGC in mitigation.  Even in its deliberation after the conviction there is no indication that the DGC took into account the mitigating factors.  When the legislature put in place section 12 B(4) of the Act it intended administrative tribunals and the courts to exercise its mind on the factors that could possibly mitigate the sentence to be imposed.  The statute requires that this should be done, where compliance is required by statute non compliance is a fatal irregularity.  In view of that the penalty cannot be sustained.

In view of the foregoing the following order is made:-

The finding of guilty of conduct inconsistent with one’ s contract of employment is to stand.

The penalty imposed by the Disciplinary and Grievance Committee be and is hereby set aside.

The matter is remitted to the Disciplinary and Grievance Committee to comply with Section 12 B(4) of the Labour Act.  The appellant remains dismissed.

No order as to costs.