Michael Henry Browne v Tanganda Tea Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/MC/28/13
HELD AT HARARE ON 14 MARCH & 30 AUGUST 2013
CASE
---------




IN THE LABOUR COURT OF ZIMBABWE		        JUDGEMENT NO. LC/MC/28/13

HELD AT HARARE ON 14 MARCH  & 30 AUGUST 2013  		CASE NO. LC/MC/77/11

In the matter between

MICHAEL HENRY BROWNE				Appellant

And

TANGANDA TEA COMPANY		                      Respondent

Before the Honourable E.F Ndewere, President

For Appellant		         -		Colin Kuhuni  (Legal Practitioner)

For Respondent		-	Mr Isiah Mureriwa (Legal Practitioner)

NDEWERE, E.F

Point in Limine

The Respondent objected to the Appellant’s failure to file Heads of Argument on time and submitted that the Appellant is therefore barred automatically in terms of Labour Court Rules.  In his counter argument, the Appellant submitted that the failure to file Heads of Argument on time was caused by the Respondent’s failure to file a Notice of Response in terms of the Rules.  Respondent submitted that although the prescribed Notice of Response was not filed, there was a notice of opposition filed in an interim application by the Appellant and it was clear from the Notice of opposition that the Respondent was opposed to the appeal.  The Court dismissed the preliminary objection by the Respondent and said a strict compliance with the Rules by the respondent is required before the respondent can successfully apply to have the Appellant barred for non compliance with the same rules.  The Court felt that the Respondent’s failure to file the prescribed notice of response was sufficient defence for an appellant who files Heads of Argument late, saying they were waiting for the prescribed Notice of Response.

The Appellant was employed by Tanganda Tea Company, Limited (TTC) in 1997 as an Estates Coffee Manager based at New Year’s Gift estate.  In 2004, he was promoted to Agricultural Manager following the retirement of the previous Agricultural Manager.  As Agricultural Manager, all estate Managers were now reporting to him.  He occupied this position till 2006 when he was approached by the then Managing Director, Mr Mills and asked to act as General Manager pending the retirement of the outgoing General Manager.  In 2007 the Appellant was confirmed as the General Manager Agriculture for Tanganda Tea Company, Limited.  He was now reporting directly to the Managing Director in Harare.  In 2010, the Appellant was appointed Director of Tanganda Tea Company.

In October, 2011, the Appellant was called to a Disciplinary Hearing by the Tanganda Tea Company for various acts of misconduct.  The hearing took place over three days, on 26, 27 and 28 October, 2011 at New Year’s Gift Estate in Chipinge.  At the end of the hearing, the Appellant was found guilty and discharged from service with effect from 22 November, 2011.

He appealed internally against the decision and the Appeal’s officer dismissed his appeal.  He has now appealed to the Labour Court.  His grounds of appeal were as follows:

The Appeal Hearing Official erred in that he convicted Appellant of contravening Section 12:20 of the code with regards to the Anti Harassment and Discrimination policy and contravening Section 12:19 being gross negligence arising from non grafting of macadamia seedlings.

He erred in making the finding that the facts giving rise to the alleged breach of the anti harassment and discrimination policy became known to the company in August 2011 when according to Respondent’s witnesses evidence these occurred and were widely known by junior employees in the company between 2003 and 2006.

He erred in finding that the non grafting of the macadamia seedlings was first known by the company in September to August 2010.

Accordingly the Appeal Hearing Official misdirected himself by ruling that the two offences in respect of which claimant was convicted had not prescribed.

He erred in his finding that the Appeal was totally devoid of merit whilst wholly ignoring the Appellant’s exculpatory evidence.

The Appeal Hearing Official misdirected himself by accepting the findings of the Designated Hearing Official as regards Eulator’s demeanour without paying any regard to the fact that she and the key witnesses used by the company to prove the first charge had all undergone disciplinary action and were keen to settle scores against Appellant who had been directed by the company to attend to their dismissals and or transfers.

In particular the inconsistencies in Eulator Makuyana’s evidence were so glaring the Appeal Hearing Official misdirected himself by failing to have her evidence discarded on the basis more fully set out on the grounds of appeal lodged before him.

The Appeal Hearing Official misdirected himself in that he failed to find that the employer had not shown, on a preponderance of probabilities, that Appellant was guilty of gross negligence in respect of the Macadamia seedlings

The Appeal Hearing Official erred in that he paid no regard in his determination to Appellant’s defence that the failure to graft macadamia seedlings before planting was due to the fact that at the time the seedlings had to be planted, the company did not have the material for the grafting and also there was no labour to do the grafting before planting could take place.

The Appeal Hearing Official erred in that he failed to take account of the fact that the evidence of Philip Lee buttressed Appellant’s defence that whilst it was best practice to graft before planting the seedlings, not doing so was not a biblical disaster.  He gave examples of flourishing and successful Macadamia industries in Kenya and Mexico wherein seedlings were not grafted before planting and stated that Macadamias can still be grafted five years after they are planted.

The Appeal Hearing Official erred in making the finding that the macadamias were in a poor state and that 35-40 hectares of macadamias were abandoned in the field with no future and that genetically some of them would not bear fruit.  He totally ignored Philip Lee’s uncontested report which was admitted as an exhibit in the hearing which stated that macadamia plantation was, given their problematic history, surprisingly good and he had no doubt that the macadamia yields would either match or surpass South African Macadamia Association projections.

The grounds of appeal are numbered 1 to 12, but in actual fact, they are 11.

Although the grounds of appeal are numbered 1 to 11, they all relate to the issue of the Appellant’s alleged love relationships with his female subordinates and the non grafting of macadamia seedlings.  The issue being raised by the grounds of appeal is that both of the alleged offences had prescribed by the time the Appellant was called to a disciplinary hearing and that the Respondent had known about the alleged offences earlier than 2010 and 2011.

The Appellant’s evidence from page 195 of the disciplinary committee record is relevant on whether it can be concluded that the Respondent knew about the Appellant’s behaviour on the estates earlier than 2010 and 2011.  The Appellant said he joined Tanganda Tea Company in 1997 as Estates Coffee Manager, based at New Year’s Gift.  He was tasked with increasing the production levels and areas under Coffee in Tanganda Tea Company.  He was also tasked with improving the quality of the Coffee.

In 2000, he took over as the Agricultural Manager and all estate managers were now reporting to him.  He worked in this capacity up to 2006.  In 2007 he took over as General Manager, Agriculture, reporting to the Managing Director in Harare.  The position of Agricultural Manager was not filled due to financial constraints so from 2001, the Appellant had increased authority as General Manager and the estate managers who had been reporting to him in the lower level of Agricultural Manager, continued to report to him when he was now the General Manager.  The Appellant’s own boss was based in Harare.

In 2010, the Appellant was appointed Director of Tanganda Tea Company and he now attended Tanganda Tea Company board meetings as a director.

It is clear from the above evidence from the Appellant himself that he was the big boss on the estates, all other managers were subordinate to him.  So when he committed the offences in question, none of his superiors knew what was going on at the estates.  Where he is concerned, his superiors are the only ones who can represent Tanganda Tea Company; not his subordinates.  There is no evidence whatsoever in the record to suggest that his superiors in far away Harare knew what the Appellant was up to in remote Chipinge until they engaged consultants to find out what was going on at the estates vis-a-vis Tanganda Tea Company production levels.  That was in 2010 and 2011.  The moment they got reports about what was going on, they sprung into action, surprising even the Appellant himself as is confirmed by his evidence. So both acts of misconduct had not prescribed when the Disciplinary hearing was held.

On the relationships with female subordinates, Eulator gave evidence that her relationship with the Appellant was from 2003 to 2006.  She testified that the Appellant had insisted on secrecy because he was married and she was his subordinate.  The secret appears to have been successfully kept by both of them.  Eulator’s evidence was corroborated by her next boyfriend, Brian Craig who got to know about the relationship when he started his own relationship with Eulator.  Craig’s evidence was that he asked her to choose between him and the Appellant and Eulator chose him although Craig suspected that Appellant and Eulator continued seeing one another for a while.  Eulator’s evidence was also corroborated by the appellant’s cook, Irene Sithole.  The Court agrees with the hearing officer’s finding that Eulator was a credible witness.  The sum total of the evidence by Eulator, Craig and Irene shows that the relationship between Eulator and the Appellant must have existed for them to talk about it because they gave their evidence long after the relationship had terminated.  Why then would all three corroborate on the existence of this relationship between 2003 and 2006?  If their evidence was a fabrication, why would they confirm the expiration of the relationship and not allege that the relationship was in existence up to the time of Eulator’s resignation?  Furthermore, there was never any suggestion by Eulator and Craig that Eulator’s resignation had anything to do with the past relationship with the Appellant.  Their evidence is clear, that the resignation by Eulator was because of her relationship with Craig; and not Appellant.  Because of the above reasons, this court is convinced that both the Disciplinary Committee and the appeal hearing officer were correct in accepting the corroborated evidence of Eulator on the relationship with the Appellant as truthful.

The next issue is whether Tanganda Tea Company knew about the relationships earlier than 2010.  The Appellant sought to rely on the evidence of Eulator’s lost diary and rumours around the estates.  As previously stated, even if there were rumours around the estate, there is still no evidence in the record which shows that the Appellant’s superiors in Harare got to know what the Appellant, who was the Chief boss at the estates, was up to in far away Chipinge.  The courts work on evidence, not rumours or conjecture and indeed, the Appellant did not point the court to any evidence that his misdemeanours with staff on the estates had reached his boss’s ears in Harare.

The evidence which is on record is that James Wessels who was brought in as a consultant in 2010 heard about the Appellant’s relationships with female subordinates and he brought the information to the then Managing Director, Mr Andy Mills.

This means that from the evidence 2010 is the earliest that the Respondent can be said to have become aware of the Appellant’s relationships through the communication to Andy Mills and 2011 to the rest of the company as indicated by the appeal hearing official. So clearly, the offences had not prescribed when the Appellant was brought before the Disciplinary Committee in 2011.  The respondent acted in a period less than two years.  This was therefore within the three years provided in Section 15 of the Prescription Act, Chapter 8:11.

On the issue of the macadamia seedlings the appeal hearing official says the charges of gross negligence came to light in September/October 2010 when Timothy Fennel visited New Year’s Gift.  Fennel’s evidence from page 21 of the Disciplinary Committee record was that he visited the Tanganda Tea Company estates in September and October 2010 as a consultant.  He said he found macadamias in a poor state.  Mistakes were made on the type of tree, then there was no weeding, fertiliser application or irrigation.  He said everything was out of control and he is the one who recommended steps to rescue the situation.  He said a total of 35 to 40 hectares of macadamias were in a bad estate.

On grafting, Mr Fennel said it was common knowledge that you cannot plant ungrafted seedlings.  Fennell’s evidence on the poor state of macadamias and all agricultural produce was corroborated by Mr Wessels also brought in as a consultant in 2010.  So the evidence on record clearly shows that Tanganda Tea Company became aware of the Appellant’s gross negligence in relation to agricultural activities at the estates in 2010, after it had engaged Consultants, and not earlier.

The evidence also shows that the Appellant, as the overall boss of the estates, is accountable for the poor state of agriculture on the estates because all the estate managers were directly accountable to him.  The Appellant himself, in his own evidence to the Committee admitted being ultimately accountable on page 233 of the Disciplinary record.  On page 228, the Appellant confirms that he was advised to graft the macadamias; but he omitted to do so .

The Appellant sought to rely on the challenges of finance and labour during the relevant period.  This did not assist him much because there is no evidence on record to suggest that he brought the challenges on macadamias to the attention of his superiors in Harare, like he did with coffee.  It took outside consultants for Tanganda Tea Company to know the situation concerning the macadamias and the general poor state of agriculture on the estates.  The fact that the Appellant was away from the estates most of the time as well as the issue of relationships with staff did not help his case.  The evidence clearly shows that the Appellant was busy doing other things instead of focusing on his job of managing the estates in a viable manner.  Even his own witness, Mr P.F.W. Lee on page 193 of the disciplinary record, confirms the Appellant’s gross negligence when he says the “orchard that we visited wasn’t receiving full irrigation.  The trees had been stressed because they lacked water.” On page 194, he also confirms the importance of grafting seedlings, when he says as a consultant, he would not recommend that commercial growers use the ungrafted method.  So even from the evidence of Appellant’s own witnesses, the gross negligence on the issue of macadamias comes out.

Consequently, there was no misdirection whatsoever on the part of the appeal hearing official when he dismissed the Appellant’s appeal and confirmed the dismissal of the Appellant.  From the evidence, the earliest that Tanganda Tea Company became aware of the Appellant’s misconduct was 2010 and by 2011, when the Disciplinary hearing was conducted, the offences had not prescribed.

The appeal is therefore dismissed.  The Labour Court, however, is generally sympathetic to dismissed employees on the issue of costs.  So costs will not follow the cause in this instance.  Each party will pay its own costs.

E.F. NDEWERE

PRESIDENT

COLIN KUHUNI OF C KUHUNI ATTORNEY – APPRLLANT’S LEGAL PRACTITIONERS

SCANLEN & HOLDERNESS  – RESPONDENT’S LEGAL PRACTITIONERS