Letwin Nyamugafata v NMB Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/141/2020
HARARE, 13 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/141/2020

HARARE, 13 JULY 2016				           CASE NO. LC/H/895/1914

AND 19 JUNE 2020

In the matter between:-

LETWIN NYAMUGAFATA			Appellant

And

NMB BANK						Respondent

Before Honourable B.T. Chivizhe, Judge

For Appellant		Mr P.G. Mutasa (ZIBAWU)

For Respondent		Mr D. Mundia (Legal Practitioner)

CHIVIZHE, J:

On the 13th July 2020 this court handed down an order dismissing the appeal filed in this matter. The appeal was against an arbitral award handed down on 26th of August, 2014in which Hon H.T. Pasipanodya found that the Appellant’s claim for unlawful dismissal was not justified and therefore the dismissal penalty had been properly imposed. The appeal was opposed. I apologise sincerely to the parties for the delay in writing the judgement. I fell ill in 2017 and delayed in the delivery of many judgements this one included. The following constitute my reasons for the judgement in the matter.

Background Facts

The Appellant was employed by the Respondent as the Administration Manager. She was suspended without benefits on the 2nd of May 2013 following allegations of misconduct following her award of a tender to Optional Air at the expense of Carrier Air conditioning which had initially been awarded the tender. The second allegation was that Appellant had allegedly cancelled a tender offer awarded to Drastic Construction of Bulawayo for repair works at the Respondent Bulawayo Branch. Appellant had instead offered the tender to Trinidad Constructors. The third allegation was that Appellant had mismanaged the Avondale branch project funds in that the final expenditure had overshot the initial budget. The Appellant was also alleged to have benefited personally from the contractor’s Shape Makers who were alleged to have carried out construction work at her personal residential property in Marlborough, Harare.

Following investigations Appellant was charged with two acts of misconduct under the Model Code i.e. Statutory Instrument 15 of 2006

Any act of conduct or omission inconsistent with the fulfilment of your express or implied conditions of year contract in terms of section 4(a).

Wilful disobedience to a lawful order in terms of section 4 (b) of the same statute.

The Appellant was arraigned for a disciplinary hearing on the 28th of May, 2013 where the same charges were levelled against her. Following the disciplinary hearing where the Respondent led evidence from several witnesses and the Appellant herself led direct testimony, the Appellant was found guilty on all four charges. The Disciplinary Committee imposed as a consequence a Dismissal Penalty effective on the 9th of July, 2013.

Due to the absence of an appeal structure at the workplace the Appellant referred the dispute in terms of Section 93 of the Labour Act [Cap 28:01] for resolution. Her claim was for an unfair dismissal. The Labour Officer having failed to conciliate the matter, the matter was referred to an Arbitrator. The terms of reference for the Arbitrator were two;

To determine whether or not the dismissal was unfair.

The appropriate remedy, if any,

The parties filed written submissions. The Arbitrator also held a hearing in the matter on 1st of July 2014 following. Upon his consideration of the evidence led before him and the applicable law the Arbitrator came to the conclusion that Appellant was improperly found guilty on the first two counts i.e. the counts relating to the air-conditioner and Avondale branch. The Arbitrator however found Appellant guilty of the last two counts relating to the Bulawayo Branch repairs and DSTV installation. The Arbitrator found that Appellant having been wilfully disobedience to an instruction by her superior she was lawfully dismissed by Respondent.

The Appeal

The Appellant was dissatisfied and noted an appeal. The appeal was noted largely based on the last 2 two counts for which Appellant was found guilty by the Arbitrator. The Respondent not having noted a cross-appeal against the findings of the Arbitrator on the first two counts it followed that her conviction by the Hearing Officer on the first two charges was quashed.

The appeal had been noted on the basis of the following grounds of appeal;

On Count 3:

The Arbitrator grossly misdirected himself in light of the evidence on record and on t he facts, in concluding that it was at the instance of the Appellant that the supplier failed to do a physical inspection.  This was grossly unreasonable especially because the Appellant’s supervisor had actually initiated the repair and inspection process and got quotations from another supplier for the same disputed area before handing over the mandate to the Appellant.

The Arbitrator also failed to take due note of the evidence presented which clearly showed that during  the time when  “the additional works” email request was sent for 109m2 and quoted for $6123.75, the Appellant was on leave and was not involved in the approval of such requests.  Resultantly she cannot be blamed for the uninformed decisions made in her absence.

The Arbitrator grossly erred when he held that the evidence submitted on “page 156 of the record clearly shows that it related to the first increase as appears on page 158 of the record,” and was not applicable. There was only one increase which increase was duly authorized by the Appellant’s supervisor.  Such gross misdirection of facts influenced the erred determination by the Arbitrator.

The Arbitrator grossly misdirected himself by finding that the Appellant interfered with the adjudicated processes to introduce her favoured suppliers when in fact she acted in terms of her job description and mandate.

On Count 4:

The Arbitrator grossly erred at law in finding that the Appellant wilfully disobeyed a lawful order, this is premised on a misinterpretation and or misreading of the evidence produced.  The Appellant’s supervisor was away on leave at the time and the job was duly approved by the CFO, who was aware of the supervisory?  challenges.

On the Penalty

The Arbitrator erred at law in determining that dismissal is the prerogative of the employer when the Constitution guarantees the right to fair labour practices.  This right warrants the interference of the Arbitrator to use his discretion in such matter and resultantly negates the sole discretion of the employer.

The appeal was opposed by the Respondent. The Respondent had also taken a point in limine to the effect that the appeal did not raise any questions of law. At the hearing, Mr Mundia, for the Respondent persisted with the point that to the extent that the appeal was seeking to attack findings of fact made by the Arbitrator no questions of law were arising. Mr Mutasa, for the Appellant, on the other hand submitted that Respondent had not specifically pointed to which grounds of appeal the point was taken and therefore the point in limine was invalid. In any event the record clearly showed that each of the grounds of appeal was raising points of law. The grounds were alleging misdirection on the facts as to amount to an error of law. The misdirection arose from the Arbitrator arriving at findings contrary to the evidence presented before him. The Appellant was relying on Supreme Court decisions as referred in her heads of argument.

An appeal to the Labour Court from an Arbitrator’s award lies on the point of law, section 98 (10) of the Labour Act [Cap: 28:01] refers. What constitutes a point of law has been outlined in several judgements in our jurisdiction including Muzuva vs United Bottlers (Pvt) Ltd 1994(1) ZLR 217(5): Sable Chemical Industries Limited vs David Easterbrook SC 18/10. The definition of ’question of law’ has been expanded over the years. See for instance Chioza vs Siziba SC 4/15 where the Supreme Court stated that a misdirection on the facts can amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court. The Appellant in this case relied on Reserve Bank of Zimbabwe vs Granger SC 34/2001 and National Foods Limited vs Stewart Mugadza SC 105/15. Although Appellant’s grounds appeared to be long and in precise it was apparent the Appellant was seeking in the appeal to challenge the findings of the Arbitrator on the basis of a misdirection of the facts as to amount to a misdirection in law. The Appellant was alleging that the Arbitrator reached conclusions that were contrary to the evidence presented before him. This was the case with grounds 1, 2, 3, 4 and 5. In ground no 6. Appellant was alleging a misdirection at law in that the Arbitrator applied the wrong principle in the process of reconsidering sentence. The Arbitrator had disregarded the constitutional provisions especially Section 65 (1)  guaranteeing the right to fair labour practices. This raised question as to what test is applicable in the process of reconsidering the aspect of penalty by a court/tribunal. On this basis the court was satisfied that the grounds of appeal though not precise did to some extent raise questions of law.

There were in my view two issues that arose for determination; firstly, whether the Arbitrator misdirected himself on the facts in arriving at the conclusion that the Appellant was not unfairly dismissed contrary to the evidence placed before him. The second issue was whether the Arbitrator applied the correct principles in the process of reconsidering the aspect of penalty.

WHETHER THE ARBITRATOR MISDIRECTED HIMSELF ON THE FACTS

The Appellant alleged in her appeal grounds that the Arbitrator had misdirected himself on the facts by arriving at the conclusion that she had not been unfairly dismissed contrary to the evidence actually presented before him. The Appellant specifically raised five instances where the Arbitrator was said to have misdirected himself;

When the Arbitrator concluded that it was at her instance that the supplier failed to do a physical inspection.

When the Arbitrator failed to find based on the evidence that she had been mandated to give the job to the cheaper supplier as quotations had already been done whilst she was on leave.

When the Arbitrator accepted Respondent argument that the Respondent had suffered loss as a result of Appellant failure to do physical inspection.

When he failed to consider evidence presented before him in the form of emails from supplier which was responded to by Lazarus Chidoori and gave the supplier the go ahead to repair as per revised quotation.

When he failed to find in the circumstances that Appellant was not the one who authorised the additional works as she was on leave at the material time.

The Arbitrator in his findings on the Count 3- Bulawayo Branch concluded as follows:

“Count 3 Bulawayo Branch

12.	The Respondent further submitted that the Claimant’s instance a supplier who had failed to do a physical inspection of the premises was appointed and Respondent overrun the budget.  Claimant submitted that she was on leave and that Lazarus Chidoori authorized the additional space to be required.

13.	With regards to this complaint that the Claimant was interfering with the proper adjudicated processes to introduce her favoured suppliers back stacked against the evidence submitted by the Respondent’s witness 1 find that the Disciplinary Authority came to the correct conclusion.  The evidence tendered by the Claimant is non-applicable as the email on page 156 of the Record clearly shows that it related to the first increase as appears on page 158 of the record.”

It is important to note that the Arbitrator was, in this instance, not hearing the matter afresh.  He thus had to also consider the findings of the Hearing Officer as against the evidence presented before the Hearing Officer. The record showed that the Hearing Officer had himself found as follows:

“2.3.	The Bulawayo Branch

The Employee repeated her usual modus operandi:

2.3.1.	The adjudication was completed during her absence on leave, and Drastic was awarded the contract.  The Bank tasked the Employee’s subordinate, Lazarus Chidoori to run with the project.

Upon her return to work, the Employee halted the implementation of the project and introduced Trinidad, who had already furnished the Employee with its quotation.  There is little doubt that in making its bid.  Trinidad benefitted from inside information and quoted lower than Drastic.

Upon her insistence, Trinidad was appointed ahead of Drastic and proceeded to implement the project.

The appointment of Trinidad was not only irregular, it resulted in the Bank incurring a budget overrun.  Whereas the works had a budget of $6 900, it paid in excess of $11 132.  Complainant said she was misled into believing she was authorising an increase from $5 008.25 to $6 123.75, which was still within the approved budget.  In reality she was authorising an additional $6 123.75.”

The finding by the Hearing Officer was clearly consistent with the evidence presented before him. This was particularly so when the court considered evidence of Pamela Machingabi on pages 162 to 177 of the record. It was her uncontested evidence Appellant took over the tender project upon her return from leave, Appellant had also brought in Trinidad a different contractor, Appellant had also overrun the budget to more than US11 000-00. The Arbitrator clearly did not misdirect himself on the facts his finding was based on the evidence as presented.

With regard to count 4 DSTV installations the Appellant alleged that the Arbitrator misdirected himself on the facts when he found that she wilfully disobeyed a lawful order when the evidence presented before him clearly indicated that the documents had been authorised and signed by the responsible authority. She had therefore clearly been given the mandate to award the job to Etric Investments.

The Arbitrator made the finding as follows;

“Count 4 – DSTV Installation

14.	The Claimant claims she was not aware of the additional works as she had to seek confirmation from Bulawayo Branch Management.  The Respondent claims that it has been prejudiced by the supplier that the Claimant introduced.

15.	Evidence clearly shows that the Claimant hire a relative and compared her uncle’s quote to the Harare based one despite the Claimant’s superior directing otherwise. This is clearly wilful disobedience of a lawful order as the order came from the Claimant’s superior and the Claimant decide to disobey.”

The Arbitrator clearly made two critical findings;

That based on evidence Appellant had improperly hired a relative of hers to provide service.

That she had also improperly compared the quotation of Etric Investments against quotes from Harare which went against her superior’s instructions.

It was on this the Arbitrator he found that she had wilfully disobeyed a lawful order. The Appellant did not in the appeal before this court challenge these two critical findings made by the Arbitrator. She seemed to focus on count 3. There is however no doubt she was also convicted in count 4. The evidence led pointed to the fact that she had deliberately disregarded clear and lawful instruction to obtain quotations from Bulawayo based companies. She had also misrepresented to her superior that the quotations were originating from Bulawayo based companies resulting in her relatives company obtaining an advantage over the other companies.

Penalty

It was the Appellant’s contention that the Arbitrator misdirected himself in reimposing the Dismissal penalty by relying on the common law rule that the employer has the discretion to dismiss an employee found guilty of an act of misconduct. The Appellant’s position was that the Arbitrator ought to have relied more properly on Section 65(1) of the Constitution which guarantees the right to fair and safe labour standards. Appellant also referred to the article by C. Mucheche in Commentary on Labour Court Rules of Zimbabwe 2nd edition October 2014 on page 39. The court was also urged to follow the approach taken by the Constitutional Court in South Africa in Sidumo & Another vs Rustenberg Platinum Mines LTD and Others CCT 85|06 2007 ZACC22 which was referred to by C. Muzhetu where the court stated that the question the court ought to ask is whether the sanction is reasonable and fair in the circumstances of the case. It was Appellant contention that the sanction in this case was both unreasonable and unfair.

The Respondent position was that the finding was reasonable and fair the Appellant had not laid any basis for interference with the penalty imposed. The circumstances of the case clearly warranted a dismissal penalty. It was Respondent further position the constitutional point taken was improperly taken. It therefore had to be disregarded by the court.

The court was persuaded by the Respondent submissions. The position is settled that where an employer takes a serious view of misconduct committed by an employee and imposes a penalty of dismissal an appeal court will generally not interfere with the exercise of such discretion in the absence of gross unreasonableness or irrationality. The position had been laid down in my authorities including Mashonaland Trust Club vs Mutangadura SC 5|12 where Ziyambi JA held as follows;

“in the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, on appeals court will generally not interfere with  the exercise of employer’s discretion to dismiss an employee found guilty of a misconduct which gross to the roof of the contract of employment”

The position of the law remained unchanged as at the time this matter was before the Arbitrator. It was also apparent from the record that the Appellant held a very serious position in the Respondent organization. The Respondent is a banking institution. As a banking institution any acts amounting to dishonest conduct would clearly result in a breach of trust. The Appellant was properly found guilty of the charges levelled. The dismissal penalty was clearly warranted in the circumstances. The court was not persuaded that the Arbitrator had misdirected himself. It was clear in the absence of demonstrated unreasonableness or gross irrationality in the imposing of the penalty of dismissal by the employer the Arbitrator was correct in reimposing the dismissal penalty.

It was also the court’s considered view that the argument based on section 65 (1) of the new Constitution was inappropriately taken in the proceedings. This was in view of the court finding that the Appellant had been properly found guilty of serious charges and the Dismissal penalty was clearly warranted. In view of this position and in deference to the twin doctrines of Constitutional ripeness and avoidance it would be unnecessary and an academic exercise to delve into the wider question as to whether the introduction of Section 65 (1) in the Bill of Rights had the effect of altering the approach that the courts or tribunals should take in addressing the issue of sentencing. The question would have been more appropriately placed before the Constitutional Court itself as the apex court as had been the case in South Africa with the Sidumo case referred to by the Appellant.

It was on the basis of the findings above that this court handed down an order dismissing the appeal for lack of merit.