Johannes Manyenga v Petrozim Line (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/124/2021
HARARE, 14 JUNE 2021
CASE NO. LC/H/92/20
AND 27 AUGUST 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/124/2021

HARARE, 14 JUNE 2021 					CASE NO. LC/H/92/20

AND 27 AUGUST   2021

In the matter between:

JOHANNES MANYENGA						APPLELLANT

versus

PETROZIM LINE (PVT) LTD					RESPONDENT

Before The Honourable Makamure J

For the Appellant			: 	Ms S. Dlomo (Legal Practitioner)

For the Respondent			: 	Mr A. K. Maguchu (Legal Practitioner)

MAKAMURE J:

1.  This is an appeal against the appellant’s dismissal from the respondent’s employ.

2.   The appellant was employed by the respondent company as its Deputy General Manager. He

was answerable to the General Manager. The pertinent portion of the contract of employment

(P 40) between him and the respondent with respect to his duties provides as follows;

“1.	Duties and Responsibilities.

Reporting to the General Manager you will be responsible for the general supervision and management services, plant operation and maintenance. Substantive responsibilities will encompass the following:

(i) – xvii

xviii Any other duties and responsibilities that may be allocated to you by the General Manager as may be deemed necessary.”

3.  According to the company ‘organization structure’ (p 45), the appellant had no

subordinate. He reported to the General Manager who in turn reported to the Board.

4.  The appellant was charged with two counts of violating section 4 (a) of the Labour (National

Employment Code of Conduct) Regulations, 2006 that is: committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract in that, firstly on dates mentioned in the charge sheet, when he was Acting General Manager, he “failed and/or neglected to advise the Board of the various problems and challenges that the Company was facing in implementing its projects, in particular, the items numbered A (i) to A (ii) below” and secondly:

“During your employment as Deputy General Manager from November 2014 to the date you were placed on mandatory leave, that is, on 22 March 2019, you attended PZL Board Meetings and you failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects in particular the items numbered (Ai) to A (v) below (then the items are listed).”

I have not listed the incidences or the items which the appellant failed to bring to the attention of the Board. These are common cause.

5.  The appellant protested his innocence before the Disciplinary Authority below. He was found

guilty all the same. He continues to protest his innocence. This is highlighted in the following grounds of appeal and I quote:

“1.	The Disciplinary Authority erred at law by making wrong factual considerations and failing to consider factual evidence presented at the hearing which absolved Appellant from the allegations of misconduct.

2.	The Disciplinary Authority erred at law by failing to consider, as he should have done, that the admission by the Respondent that only the General Manager was permitted to report to the board resolved the matter before him in favour of the Appellant.

3.	Having noted the admission by the Respondent that there were no board meetings convened during the period in which the Appellant was accused of misconduct, the Disciplinary Authority erred in proceeding to find that the Appellant was guilty of the misconduct alleged.

4.	The Disciplinary Authority erred at law by failing to consider as he should have done, that Appellant having never been confirmed as an acting General Manager in terms of the Company’s policy, he could not be held liable for duties of an Acting General Manager.

5.	Ultimately and on a consideration of the facts, the Disciplinary Authority erred in failing to consider, as he should have done, that the Respondent had failed to prove on a balance of probabilities that Appellant was guilty of the alleged misconduct.”

6.  During the course of the hearing a preliminary issue was raised regarding the propriety of

grounds of appeal. Resultantly grounds 1 and 5 were struck out. The appeal therefore

addresses grounds 2, 3 and 4.

7. The facts which are common cause show that all the issues which form the basis of the

misconduct arose during the time when the appellant was the Acting General Manager or at

least in the absence of the substantive General Manager.

8. The position of the appellant is that he was never appointed Acting General Manager.

Further it is common cause that only the General Manager was authorized to report to the Board. It was averred on behalf of the Appellant that each time that the General Manager was away, other persons were advised that he (the appellant) would be acting but that the same General Manager never told or advised him. Further in the absence of the General Manager no one reported to the Appellant. It was also averred that at all maternal times there were no Board Meetings convened.

9.  In response and in his address on behalf the respondent, Mr Maguchu argued that the

Appellant had a duty to report to the Board and that he was aware of such duty. It was further argued that the appellant had opportunities to report but that he did not utilise such opportunities. Further even if the Board did not sit or was not sitting, Mr Maguchu argued that appellant spoke to the Board Chair on numerous occasions. As such Mr Maguchu continued, he (the appellant) could have and should have advised that Board Chair of the problems or the prevailing situation. Mr Maguchu further argued that he (Appellant) was the Acting General Manager during the material period. He was therefore responsible for ensuring that the Board or alternatively its Chair was advised of the issues in question.

If Appellant did not want to act, he should have declined from acting and advised the Board Chair accordingly. Mr Maguchu submitted that Appellant was aware of the difficulties within the respondent company. He could therefore not escape liability.

Appellant, Mr Maguchu continued, had the duty to protect his employer’s property. Mr Maguchu submitted that the failure of the Board to sit was not an excuse for Appellant’s failure to report. Mr Maguchu prayed for dismissal of the appeal for lack of merit.

10. In reply Ms Dlomo submitted that the appellant was not aware of the operational challenges

which the respondent was facing and therefore the duty to report did not arise.

11.  In the earlier tribunal, the Disciplinary Authority (DA) found as a fact that the respondent sat

in Board meetings. The Disciplinary Authority found that Appellant acted as General Manager in the absence of the substantive General Manager. As such Appellant, would call the Board Chair and give him (the Board Chair) updates on operational issues (p 4). The Disciplinary Authority also found through the evidence of the Board Chair that it was Appellant’s duty to give expert advice to the General Manager. The Disciplinary Authority also found that the Appellant sat in three subcommittees and not only that, but he would go out to see the operations of the company. Further, whether or not the Board sat, it was incumbent on Appellant to report any anomaly to the Board Chair and it would have been up to the Board Chair to report it to the Board. The Disciplinary Authority also found that the Board resolved that all issues pertaining to the Company had to be reported through the General Manager.

The Disciplinary Authority further found that Appellant would visit Feruka and that he (Appellant) had once been updated about problems with pumps. The Disciplinary Authority also established that the appellant was aware of the respondent company’s operational problems.

12.  In his defence, in the court a quo the appellant stated that he was a ‘lone ranger’ as no-one

reported to him but to the General Manager. In view of this the Appellant’s position was

that he was not apprised of project operations.

13.  The Disciplinary Authority found that Appellant signed a contract which required him to report any anomalies to the Board. The Disciplinary Authority also found that Appellant was in fact at the material times the Acting General Manager. As such Appellant was obliged to report any anomalies to the Board. While the Board may not have sat the Board Chairman was always available. Further the Board Chair was the face of the Board. It was therefore incumbent on Appellant to advise the Board Chair and it would have been up to the Board Chair to advise the Board.

The Disciplinary Authority found that the contract he signed showed that he had no subordinates. In view of the fact that he signed it (‘signor beware’) he was bound by that contract. As correctly cited by the Disciplinary Authority in the case of Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 the Supreme Court stated that:

“The general principle which applies to contracts, and commonly designated as caveat subscriptor, is that a party to the contract is bound by his signature, whether or not he has read or understood the contract, or the contract was signed with blank spaces later to be filled in. Expatiating on this principle in National and Grindlays Bank v Yelverton 1972 (1) RLR 365 (G) at 367; 1972 (4) SA 114 ® at 116 G – H, DAVIES J cited with approval, the following statement by INNES CJ in Burger v Central South Africa Railways 1903 TS 571 and 578 (decided before the promulgation of s 6 of the General Laws Amendment Act):

“It is a sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effects of the words which appear over his signature.”

Appellant was therefore required to protect the interests of his employer as required by the contract, especially since he and the substantive General Manager were jointly responsible for the welfare of the company.

14.  The Disciplinary Authority referred to the case of Lister v Romford Ice and Cold Storage

Co. 1957 AC 555 where it was stated that and I quote:

“It is, in my opinion, clear that it was an implied term of the contract that the appellant would perform his duties with proper care. … When a skilled labourer, he said, an artisian, or artist is employed there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes ‘spondes periotiam artis’ (A personal promise to use the skill of one’s art). Thus, if an apothecary, a watch maker, on an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. An express promise or express representation in the particular case is not necessary.”

The above remarks, to me mean that Appellant as an expert was expected to exercise his skills for the benefit of the respondent. This also means that if anything was amiss, it was his duty to report, particularly during the period that he was the Acting General Manager.

15.  At page 188 of the record is an email which reads as follows and I quote:

“I will be out of office from 10 to 11 July. Mr Manyenga will be acting during my absence.”

The email was authored by Cathrine Katsande (the General Manger) and was sent to Manyenga (the appellant) and others. It is dated 9 July 2018.

The appellant describes the nature of emails he received from the General Manager as simply showing that he was the next most senior person. His interpretation is correct. But then the emails went further to advise that he would be the Acting General Manager during the said General’s Manager’s absence. The Appellant may have probably expected the General Manager to address him in a specific manner each time they were going away. That did not happen and the example of the email I have referred to above is testimony to what was happening. It shows that he was the acting General Manager in the absence of the General Manager. That being the case he had an obligation to advise the board or its chair of any anomalies. He did not do so.

16. I now consider the grounds of appeal. Ground of appeal 2, says only the General Manager was permitted to report to the Board. During the absence of the General Manager, he was the Acting General Manager. He then had the duty to report to the Board or the Board Chair. Ground 3, deals with the board meetings not having been held. Even if there were no board meetings, he had access to the Board Chair. The Board Chair is indeed the face of the Board. He should have advised the Board Chair about any anomalies. This means that the ground has no merit.

Ground 4 – This ground deals with the issue that the appellant was never confirmed as Acting General Manager. This may be so but, there is correspondence showing that each time that the General Manager was away, he was the Acting General Manager. The fact that he was not ‘confirmed’ as Acting General Manager is neither here nor there. He was the Acting General manager in the absence of the General Manager. There is therefore no merit in this ground either.

This means that there is no merit in all grounds of appeal.

It is a settled position in this jurisdiction that an appellate court should not interfere with the findings of a lower tribunal unless it is necessary to do so. Having said the above, the decision of the Disciplinary Authority cannot be faulted.

In Passmore Malimanjami v Central Africa Building Society [CABS] SC 47/07 the Supreme Court stated that:

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower court unless it is shown that the discretion was improperly exercised.”

In the result the appeal fails.

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

Mutumbwa, Mugabe & Partners, Appellant’s Legal Practitioners

Dube Manikati & Hwacha, Respondent’s Legal Practitioners