Ivy Musora v Mediterranean Shipping Company S.A. (Zimbabwe) (Pvt) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5TH
JUDGMENT NO.LC/22/25
CASE NO. LC/H/312/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5TH JUNE 2024

AND

In the matter between

JUDGMENT NO.LC/22/25 CASE NO. LC/H/312/24

IVY MUSORA	APPELLANT

And

MEDITERRENEAN SHIPPING COMPANY	RESPONDENT

S.A. (ZIMBABWE) (PVT) LIMITED

BEFORE THE HONOURABLE E. MAKAMURE, JUDGE.

FOR THE APPELLANT : T.W. NYAMAKURA FOR THE RESPONDENT:H. MUROMBA

MAKAMURE J:

This is an appeal against the decision by an arbitrator.

The appellant appealed on the grounds that: the arbitrator grossly erred at law and in fact as the dispute had prescribed and therefore lacked jurisdiction ; the arbitrator relied on the evidence of an audit report that was not placed before them; the appellant in her capacity as Office Manager /Administrator of the respondent was reposed with wider and more robust responsibilities which allowed her to conclude agreements as she did; the respondent failed to prove that the appellant had no lawful authority to sign the vehicle disposal documents as

she did; insufficient weight was placed on the issue of there being bad blood between the Managing Director and the Appellant and also that employees in similar circumstances ought to be given similar treatment; the arbitrator erred in not finding that the appellant was a director at the material time; the arbitrator erred in finding that fraudulent papers, in the form of returns ,were submitted to the Registrar of Companies when in fact what was submitted were the correct returns.

The facts of this matter are as follows. The appellant was employed by the respondent as an Office Manager and Director . On 30th November 2020 she resigned from the post of Director and other new directors were appointed. So, with effect from that same date (30th November 2020 ) appellant assumed the role of Office Manager only. What this means is that whatever duties she used to perform as Director were no longer part of her new job description. After she had resigned from the post of Director the appellant facilitated the disposal of a motor vehicle which the former managing director was allocated so that the said former managing director purchased the motor vehicle at book value. The position of the respondent was that the appellant no longer had authority to facilitate the transaction since she was no longer its director. The respondent took the position that by facilitating that transaction the appellant committed an act of misconduct.

As a result of the above facts the appellant was charged with two offences namely i) Any act , conduct or omission inconsistent with the fulfilment of the express or implied conditions of her contract; and ii) Fraud. These were violations of provisions of the Labour(National Employment Code of Conduct)Regulations 2006, Statutory Instrument 15 of 2006. Disciplinary proceedings were conducted . The Disciplinary Authority convicted her and she was penalized with dismissal. The matter was referred to arbitration. The terms of

reference for the Arbitrator were i) To determine whether or not the claimant’s dismissal was fair and ii) To determine the appropriate remedy thereof. After considering the evidence

placed before him the Arbitrator dismissed the appellant’s claim for unfair dismissal. This resulted in the appeal now under consideration.

An audit was conducted at the workplace in April 2023. That is when details of the disposal of the motor vehicle were unearthed. Thus, the authorities only came to know about the offence more than two years after it had been committed.

The question that falls for determination by this Court is whether or not the arbitrator fell into error when he made a finding that when the appellant signed the agreement of sale of the vehicle mentioned above, she was no longer a director of the respondent. If she was no longer a director, she had no authority to facilitate the change of ownership of the vehicle in question to the former Managing Director.

The record shows that the process the to dispose of the motor vehicle commenced on the 16th of November 2020. By then the appellant was still a Director of the respondent. The respondent together with one Giorgio Spampinato resigned from the positions of directors on 30th November 2020. On that same date Michelle Bordiga, Marie Chevalier and Vinod Kunnummal were appointed as new directors of the respondent. Meanwhile, the agreement of sale of the motor vehicle was signed by the appellant on 30th December 2020. The appellant had by then ceased to be a director of the respondent. The record also shows the

appellant’s main duties as contained in her job description. That job description does not empower or authorize her to dispose of company assets . It however allows her : ‘18. To

ensure all company assets are accounted for and the assets register is up to date.’ The record does not contain any information on the appellant’s extended role beyond what is in her job description.

It is clear from the above undisputed facts that the appellant acted outside her job description. Further the offence came to light in May 2023. That is when the respondent

could only initiate disciplinary proceedings. This is in terms of s94 of the Labour Act , Chapter 28:01(the Act ) which provides as follows:

‘94 Prescription of disputes

Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

it is referred to him; or

has otherwise come to his attention;

within two years from the date when the dispute or unfair labour practice first arose.

Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed to have first arisen on the date when—

the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

the party wishing to refer the dispute or unfair labour practice to the labour officer first

became aware of the acts or omissions referred to in paragraph (a), if such party cannot

reasonably be expected to have known of such acts or omissions at the date when they first

occurred.’(My underlining for emphasis).

The appellant blames the Arbitrator for relying on an audit report which allegedly was not placed before the said Arbitrator. The question of there having been an audit conducted at the workplace is not disputed. This is how the irregularities were uncovered. Thus, that issue is neither here nor there. The appellant was an Office Manager . That was the finding of the

lower tribunal. The wider and more robust responsibilities which she refers to do not form part of the record. The Court cannot question when she says she signed certain documents on behalf of the respondent . However, the circumstances surrounding the signing of those documents do not form part of the present matter.

The record shows that there were angry emails exchanged between the appellant and the respondent’s Managing Director. That should have caused the appellant to raise a grievance. The present matter is concerned with factual issues related to whether or not she was still a director of the respondent when she signed the agreement of sale in question. It is also clear that the papers which were presented to the Registrar of Companies contained the names of the previous directors who included her. If that was the only document available, the appellant ought to have consulted the Managing Director to ensure that the correct procedures were followed.

Authorities are clear on when an appellate court can interfere with the factual findings of a lower court. In Nyahondo v Hokonya & Ors 1997(2) ZLR 457 it was held that as a general rule an appellate court will not interfere with the factual findings of a lower court unless it is satisfied that having regard to the evidence that was placed before that court, ‘ the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’ In the present matter it is not disputed that when the appellant authorized the sale of the motor vehicle in question, she was no longer a director of the respondent.

The irregularity was discovered two years after it had occurred. That is when the respondent first got to know about it. This means that it could only be dealt with then as it appears that before the audit report the respondent could not have been expected to know

about it. The question of prescription therefore falls away. It is common cause that the irregularity was uncovered following an audit report. The appellant is well aware of this. As such whether or not it was placed before the Arbitrator does not change facts of the matter. The appellant had a job description which forms part of the record. That job description does not include concluding agreements as she did. Even if she had done so on other occasions, the Court would not know under what circumstances that was done. In the same vein there may be other employees of the respondent who were involved in processing the sale of the vehicle but only the appellant was charged. The Court cannot question why the respondent preferred charges against one employee and not the other. That is because it is the discretion of the employer to prefer charges against an employee even if other employees may have been involved in the alleged act or acts of misconduct. In Zimbabwe Banking Corporation Limited v Saidi Mbalaka SC 55/15 the Supreme Court highlighted the need to appreciate the discretion reposed in an employer to discipline an employee. See also Lancashire Steel (Private) Limited v Elijah Zvidzai Mandevana and Others SC 29/95 ;Vimbainashe Theophilus Dube v Standard Chartered Bank SC105/04 .It is however emphasized that

the Court is guided by the appellant’s job description after she had resigned from the post of Director. That way the Court can be in a position to say whether or not the appellant acted contrary to the terms and conditions of her contract of employment. It is after she had resigned from the post of Director that she signed the agreement of sale in question even though the process was commenced while she was still a Director. The appellant’s job description does not show that she was a de jure Director.

There is correspondence on record showing that the relationship between the appellant and Respondent’s Managing Director was less than cordial. However, the facts relating to the appellant authorizing a sale which she was not authorized to do were proven. Thus, it cannot be said that the charges were trumped up. With respect to documents submitted to the

Registrar of Companies, as indicated elsewhere in this judgment , if they were the only documents available then there was need for the appellant to inform the Managing Director that she was submitting forms which indicated that she was still one of the directors and yet circumstances had changed. That would have shown transparency in processing the sale. The submission of those papers without an explanation, after she had resigned ,amounted to a misrepresentation since she was no longer a director. In an email dated 24 March 2021

written by the appellant and appears at page 226 of the record the appellant wrote: ‘4. These were contractual benefits or in the absence of a local contract of employment had become contractual benefits by virtue of Dr. Spampinato enjoying them over time. Past audits were carried out and similar benefits which had been awarded to previous exits to allow a smooth transition were not questioned. Authorization again was from the former MD.’ This seems to suggest that the Managing Director (MD) is the one who authorized the exit packages (of which the motor vehicle whose sale was authorized by the appellant is part of). This seems to suggest that even if she had still been a Director but not the Managing Director, she might not have had the authority to do what she did. In the case at hand it was not the MD who authorized but the appellant. This is contrary to her own explanation referred to above.

In view of the foregoing I find that there is no merit in all the grounds of appeal. I find as a result, that there is no error on the part of the Arbitrator. In Mwatukuya Mubaiwa( nee Chikumba) v Mubaiwa SC 19/22 the Supreme Court held that issues of credibility were the preserve of the trial court and ‘an appellate court is generally reluctant to interfere with such findings unless they cannot be supported.’ See also Hama v National Railways of Zimbabwe 1996 (1) ZLR 664; Mthimukulu v Nkiwane & Anor SC136/01. In the present case the findings of the Arbitrator are supported by the evidence on record. There is no reason to interfere with his findings. In the result the appeal fails.

Accordingly, it is ordered that:

1.The appeal be and is hereby dismissed with costs.

D. MATETE & CO. COMMERCIAL LAW CHAMBERS, APPELLANT’S LEGAL PRACTITIONERS.

KANTOR &IMMERMAN , RESPONDENT’S LEGAL PRACTITIONERS.