Idah Chigada v Zimbabwe Revenue Authority (ZIMRA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/138/2016
HARARE, 06 JULY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/138/2016

HARARE, 06 JULY 2015		           		 		CASE NO. LC/H/92/15

AND 4 MARCH 2016

In the matter between:-

IDAH CHIGADA					Appellant

And

ZIMBABWE REVENUE AUTHORITY		Respondent

(ZIMRA)

Before The Honourable E. Makamure, Judge

For Appellant		Mr. L. Ngwarati(Trade Unionist)

For Respondent		Mr. S.	P. Musithu

MAKAMURE, J:

This is an appeal against a decision by the respondent’s Appeals Committee wherein it confirmed the appellant’s dismissal from respondent’s employment.

The appellant was a revenue specialist.  Her duties included ensuring that long distance trucks passing through the Nyamapanda Border Post are proved to have left the country with their goods and are proceeding to a destination outside Zimbabwe.  This meant that once the trucks had passed through the Border Post she would advise the Beitbridge Border Post to that effect. The Beitbridge Border Post acted solely on the basis of that communication.  The reason is that for the period that such trucks are transiting through Zimbabwe, funds will be held as security. When trucks are only transiting through Zimbabwe they do not have to pay certain duty.  However, as a fallback position ZIMRA (respondent) holds some funds against them until it is actually proved them they have left. Should the trucks not exit Zimbabwe as expected, then the funds held will be collected as revenue.

In the present case the appellant informed the Beitbridge Border post that certain seven trucks had exited Zimbabwe through the Nyamapanda Border Post when in fact they had not.  The Beitbridge Border Post released the funds held to that said trucks’ agent.  That resulted in loss of revenue to the Authority in the sum of USD184 987,04.  This sum was not recovered. She was therefore charged with Gross negligence in the execution of duty.  This was a violation of Group D – Most Serious Offences – Category 9 of the applicable Code.  She was found guilty by the Grievance and Disciplinary Committee.  Her appeal to the Appeals Committee was not successful. The appellant was aggrieved by that decision. She appeals to this Court on the following grounds:

“The Appeals Committee (hereinafter referred to as AC) erred and grossly misdirected itself when it concluded that the Appellant was grossly negligent though it did sustain Appellant’s ground of appeal number one.  On this ground the Appellant emphasized the point that it was a requirement to check register before validation. The Disciplinary and Grievance Committee (hereinafter referred to as the DGC) had dismissed Appellant for the sole reason that she had not checked the register.  Having sustained Appellant’s ground of appeal number one, it follows that the Respondent’s case falls away.

The AC erred and grossly misdirected itself when it concluded that all the findings were considered in coming up with the verdict by the DGC though it is clear from the DGC minute that out of the fourteen findings only one finding was considered which finding was also dismissed by the AC.

It is the submission of the Appellant that AC erred in that though it sustained ground of appeal number 3 which clearly stated that it was not mandatory to endorse road report numbers in the system while validating, the AC went on to dismiss the Appellant.  It should be noted that the case of the Respondent was presented hinging also on this allegation.

The Appellant submits that the AC erred and grossly misdirected itself in that it chose to ignore the impact of the Chiinze report to the final verdict and penalty of the DGC.  It also went on dismiss the ground of appeal alleging that it had been mentioned in the DGC facts and findings that Chiinze’s report had inconsistencies.  The Appellant categorically state (sic) that there is nowhere in the DGC facts and findings where it is stated that Chiinze’s report had inconsistencies.  Appellant still insist (sic) that Chiinze’s report though having serious inconsistencies contributed immensely to the DGC’s verdict and ultimately, the penalty.

The Appellant submits that the AC erred and grossly misdirected itself in that it concluded that Appellant was grossly negligent because of alleged failure to verify transit of goods.  This is a baseless conclusion because Appellant verified exit with the schedule which is the document which is used to confirm exit and validate exports.  Moreover the AC did not indicate which form of verification it was referring to considering that it had sustained Appellant’s ground of appeal number one.

The AC erred and grossly misdirected itself when though it sustained ground of appeal number 5 by accepting that magnitude (sic) of the prejudice must not be used to determine penalty in this case, it went on to ignore the fact that DGC committee member number 3 dismissed the Appellant basing argument on magnitude of prejudice (sic).

The Appellant submits that the AC erred and grossly misdirected itself by concurring with the DGC that Appellant did not take action to mitigate the risk.  The Appellant did not violate any procedure in the standing instruction of the Respondent and thus the conclusion of both the DGC and AC are baseless and without merit at law.

The AC erred in that it also could not certainly give a firm position as to whether the money was recovered or not.  The Appellant still insist (sic) that the money was recovered since it is common cause that all transit goods are covered under an insurance bond.

The AC erred and grossly misdirected itself when it did not put weight to the fact that Complainant lied to the DGC when she alleged that Appellant had violated the Respondent’s standing instructions.

The AC erred in that though it found out that Appellant’s mitigating factors were not considered by the DGC when passing its penalty, it went on to dismiss the Appellant.

The AC erred and grossly misdirected itself by allowing committee member number 3 to dismiss Appellant on the basis that she is a young lady.

The AC erred and grossly misdirected itself when it allowed the Complainant to rewrite new standing instructions in the DGC hearing in order to persecute the Appellant for violating non-existent standing instructions and procedures.

The AC erred and grossly misdirected itself when it without any grain of evidence dismissed the Appellant on an alleged basis of taking advantage of the porous system.  This is a baseless allegation and only serves to show that Respondent is using the Appellant as a scape goat to take a fall for his organization’s system challenges.”

The grounds are mainly about the fact that that the Appeals Committee (AC) erred in finding that the appellant had failed to check the register and the question of considering the violation of standing instructions; the question of penalty and whether mitigation was properly considered.  Mr Musithu who appeared on behalf of the respondent summed up the grounds of appeal as follows;

Whether or not gross negligence was established [Grounds 1-5, 7,9,12 and 13].

Whether or not the penalty was appropriate [Grounds 6 and 8].

Whether or not the Appeals Committee considered mitigation [Grounds 10 and 11].

I respectfully agree with that summarization.  I will accordingly deal with the matter in terms of that summary of the grounds of appeal.

Firstly it is not disputed that the appellant, without checking caused the Beitbridge Border Post to release revenue to the said trucks’ agent.  This was on the basis that the trucks in question had left or exited Zimbabwe and the goods were therefore not unloaded in Zimbabwe.  That was not true.  There is no proof that the trucks and therefore the goods which they were carrying left Zimbabwe.  That means revenue in the sum of one hundred and eighty four thousand nine hundred and eighty seven US dollars and four cents (USD184 987,04) was lost.  The appellant says there were no standing instructions requiring her to check before validating that trucks had exited. It is common cause that it is the appellant’s duty to perform the mentioned checks.  That was what she was employed to do.  She was not new on the job.  I therefore found that it was unfair and not in keeping with her duties for her to assert that there were no standing instructions regarding duties she performed on a daily basis.  The appellant is also aware that whatever official communication she made was taken to be true and acted upon.  She knew the consequences of communicating information to the Beitbridge Border Post.

She had been on this post for at least two years.  She was therefore well versed with the need to be accurate when communicating about the trucks in question.  The appellant was called upon to be a person of integrity. She had to physically, personally conduct the check. She was required to be careful and accurate when making official communication. She could not act on guess work. Anything below that conduct could only mean that she was not serious with her work and careless as to the consequences of her conduct.  What is of paramount importance is not the question of standing instructions and validation. What is important to note is that she knew what was required of her and opted not to do it.  In Rosenthal v Marks 1944 TPB 172 @ 180 the court stated that:

“Gross negligence (culpalata crassa) connotes recklessness, an entire failure to give consideration to the consequences of his action, a total disregard of duty.  And in Van Bureau v Ministry of Transport 2000 (1) ZLR 292 @ 3000 the Court stated;

“In the words of Solomon AJ in the Blakewell case supra. Negligence is the failure to take proper care and proper care is care which according to law, would be taken by a prudent and reasonable man.  The question whether in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly is the one to be decided upon the consideration of all circumstances.”

I am of the view that in the circumstances of this case the appellant totally disregarded her duty.  She knew that once she communicated confirmation of exit of the trucks, the funds held would be released.  Had she properly checked she would have seen that the trucks did not exit Zimbabwe and consequently would not have authorized the release of funds.  She could have governed her conduct to ensure that she communicated the correct information.  She did not.  I believe that she was grossly negligent.

On the question of penalty, the Supreme Court has stated that once an employer has decided to dismiss an employee, an appeal court should not interfere with the employer’s discretion unless if there is need to do so.     In Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03 the Supreme Court stated:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration does not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

In the present matter, the offence was of a serious nature and called for a serious view to be taken by the employer which the employer did.  It is not a question of making the appellant a scape goat. It is a question of whether or not the appellant committed the offence.  Evidence on record shows that she did commit the offence. If there were other officers who were negligent in the performance of their duty, these employees’ conduct did not entitle the appellant to do the same.  She had a duty to perform her duties appropriately. On the question of mitigation, it is clear that mitigation was considered.  The appellant was not dismissed because she is young, but because she committed a serious offence.

In view of the foregoing I find that there is no error on the part of the Appeals Committee. Its decision is confirmed. I find that there is no merit in all the grounds of appeal.  The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed.