Mutiba N.C. v Zimbabwe Revenue Authority & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/22/2020
HARARE, 6 NOVEMBER 2019
CASE NO.
JUDGMENT NO. LC/H/21/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/22/2020

HARARE, 6 NOVEMBER 2019		             CASE NO. LC/H/LRA/210/19

AND 31 JANUARY 2020

In the matter between:-

MUTIBA N.C.						Applicant

And

ZIMBABWE REVENUE AUTHORITY			1st Respondent

And

JUSTICE MAFANA & KUDZAYI MANYEZA		2nd Respondents

Before Honourable B.S. Chidziva, Judge

Applicant				In person

For 1st Respondent		Mr L. Chipateni (Legal Officer)

For 2nd Respondents		Mrs Y. Chapata (Legal Practitioner)

CHIDZIVA, J:

This is an application for confirmation of the Ruling by the Labour Officer Ms N.C. Mutiba. In the ruling that was handed down on 21st May 2019 the 2nd Respondents were acquitted of the misconduct charges. The 1st Respondent was ordered to reinstate the 2nd Respondent without loss of salary and benefits or to pay damages in lieu of reinstatement.

The brief facts of the matter are that the 2nd Respondent were employed by the 1st Respondent as Revenue Officers stationed at Forbes Border Post.

In April 2017 they were suspended from employment.

They were charged with Contravening Category D9 of the ZIMRA Code of Conduct that is “Gross negligence in the execution of duties or alternatively Category D25 i.e. “carrying out any act inconsistent with the express or implied conditions of the contract of employment.

It was alleged that they had

Failed to ensure that the goods in the container were offloaded and unpacked before they conducted a physical examination.

Failed to conduct a full physical examination on the consignment in which they were ordered to conduct a physical examination.

The disciplinary hearing could not be conducted because the Zimbabwe Revenue Authority Trade Union (ZIMRATU) had suspended the Workers’ Committee members from participating in disciplinary hearing.  The 2nd Respondents then referred the matter to the Labour Officer alleging unfair suspension.

The 1st Respondent has opposed this application on the ground that,

The 2nd Respondents did not carry out a full physical examination on the consignment as per instruction.

A post clearing audit in Harare revealed that the 2nd Respondent did not detect four (4) beers of undeclared blankets resulting in potential loss of revenue amounting to US$978-00.

The 2nd Respondents have supported confirmation of the draft ruling on the grounds that,

No evidence was adduced to prove that the 4 bales were in the consignment at the time that the physical examination was conducted.

The supervision instructed the agent to reload the truck and they were not negligent by following the supervisor’s instruction.

The Respondents also argued that the procedure for physical examination does not specify how the examination should be conducted. These examinations can be open door where the officer simply examines the consignment without offloading the goods to be examined.

It is common cause that,

That the 2nd Respondent left (2) two rolls of material in the container during the physical check.

There were no security measures put in place by the 1st Respondent to avoid tampering along the way.

The importer was the sole custodian of the container all the way to Harare.

The position of the (4) four bales in the container was not stated.

It was the duty of the importers or their agents to offload, unpack and reload any goods which need to be examined (Clause 2:4).

The bales were also discovered 3 or 4 days later.

What is to be decided is

Whether or not the 2nd Respondents were negligent in the course of their duty on the day in question.

Whether or not the 2nd Respondents acted in a way which is inconsistent with the express  or implied conditions of their contracts of employment.

In the case of Standard Chartered Bank of Zimbabwe Ltd vs Chipiningu 2004 (2) ZLR 94 the court defined negligence as follows,

“Gross negligence connotes recklessness, an entire failure to give consideration to the consequences of one’s actions a total disregard of duty.”

It is the 2nd Respondents’ argument that they were not negligent in any way in that Clause 2:7 of the Customs Procedure provides that,

“… the Revenue officers shall take that opportunity to verify that the description, values, tariff classification, quantities have also been correctly entered.”

They have submitted that this is exactly what they did and the figures they recorded at Forbes Border Post were verified at the clearance audit in Harare save for the 4 bales of blankets that are in dispute.

Gwisai in his book A Guide to Labour Law in Zimbabwe: Rights Obligations and Relations at the Workplace define negligence as

“Situation whereby the employee is aware of his/her duties and is capable of performing  them but for no good reason he/she does not or does them in as in correct way  because of lack of application  or concentration.”

In the course of their duty the Respondents called the supervisor to verify the type of material that was left in the container before the results were entered. There are 2 witnesses (Page 10) who testified that the supervisor is the one who ordered the reloading of the container whilst there were two roles of material left. In these circumstances in my view it cannot be said that the 2nd Respondents wre negligent. They also cannot be said to have acted inconsistent with the express our implied conditions of the contract of employment.

From the evidence before this court it is clear that,

It is not known where exactly the four bales were. This piece of evidence would have assisted the court in finding whether the 2nd Respondents were negligent or not.

The importer/Agent were responsible for the loading and off-loading of the container. In that case there is a possibility thst they could have smuggled in the blankets after the physical examination.

There were no security measures that were put in place by the 1st Respondent to avoid tampering with the container all the way to Harare.  The importer was also the Sole custodian of the container from Forbes Border Post to Harare.

In these circumstances it is possible that the container could have been tampered with after leaving the border post.

There is no evidence to prove the misconduct charges that were laid against the 2nd Respondents.

In my view I find that th application is merited and I order as follows,

The ruling by the Labour Officer Mutiba be and is hereby confirmed.

The 2nd Respondents be and are hereby found not guilty of breaching the ZIMRA Code of conduct category D9 and D25.

The 1st Respondent be and is hereby ordered to reinstate the 2nd Respondent from the date of suspension without loss of salary and benefits on or before the expiry of 30 days of this order.

In the event that reinstatement is no longer an option in the next 30 days of this order, the parties may agree on damages to be paid, failure of which either party may approach the Labour Officer for quantification.

The 1st Respondent is to pay cost of suit in the sum of $156-00 within 30 days of this order.

Henning Lock, 2nd respondents’ legal practitioners