Obrie Tozivepi v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/467/2016
HARARE, 2 JUNE 2016 &
5 AUGUST 2016
CASE NO LC/H/121/2016
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/467/2016

HARARE, 2 JUNE 2016 & 			        	                CASE NO LC/H/121/2016

5 AUGUST 2016

In the matter between

OBRIE TOZIVEPI								APPELLANT

Versus

ZIMBABWE REVENUE AUTHORITY					RESPONDENT

Before the Honourable Maxwell J

For the Appellant	S Chako (Legal Practitioner)

For the Respondent	M Sinyoro (Legal Practitioner)

MAXWELL J:

This is an appeal against the respondent’s decision to dismiss the appellant from its employ on allegations that the appellant committed acts which are inconsistent with the express or implied conditions of his contract of employment.

The appellant was employed by the respondent as an investigation officer level 8 which is a managerial position. The appellant was on a fixed term contract which expired in July 2014. A new four year contract was entered into commencing August 2014 and expiring July 2018. In November 2014 the respondent became aware that the appellant had been involved in acts of misconduct in December 2013 during the currency of an expired contract. Investigations were carried out and the appellant was arraigned before a disciplinary and grievances committee facing a charge of having acted in a manner inconsistent with the conditions of his contract of employment. He was found guilty and was dismissed from employment. The appellant appealed to the appeals committee but was not successful. He thereafter appealed to this court.

The notice of appeal spans over four pages. It is necessary at this juncture to point out that the appellant was a subordinate to one Tafara Gumede who suffered the same fate. Tafara Gumede’s appeal was argued before this court under reference LC/H/07/16. At the hearing of this matter counsel were agreed that the issues in LC/H/7/16 are the same as in this case. They further agreed that only three grounds of appeal were not covered in LC/H/7/16. I will hereunder outline the findings of the court in issues that are common between the matters.

There was nothing amiss in the respondent charging the appellant on the basis of the expired contract.

It was proper for the appellant to be charged based on the respondent’s code of conduct.

The criticism against the charge preferred is not warranted.

There is no question that the appellant was found guilty of the offence he was charged for.

The penalty of dismissal is appropriate in the circumstances.

The reasons for the findings are in judgment number LC/H/388/16. It is therefore necessary to consider the grounds of appeal that are additional to the ones that are common. These were outlined as grounds of appeal 5, 7 and 8.

5	The respondent erred and misdirected itself on a point of law when it failed to make a ruling that charging the appellant with the same allegations which his superior, Mr Tafara Gumede, was facing amounted to duplication of offences.

The appellant’s heads of argument state that he is being charged with having failed to do exactly what his immediate superior is alleged to have failed to do. He argues that this amounted to duplication of charges and the appellant and his superior ought to have been charged and tried together. The appellant further argues surprisingly that once his superior was dismissed over allegations that he was facing, it follows that he ought to have been acquitted. The appellant seeks to place reliance on criminal cases dealing with splitting of charges. For example he quotes S v Rayiti 1984 (1) ZLR 269 at 272 A – E where the court held that:

“The rule of practice against the duplication of convictions is designed to prevent the multiplicity of convictions of an accused person where the whole of the criminal conduct imputed to him in substance constitutes only one offence which could be contained in a single but all embracing charge. This is meant to avoid prejudice to the accused person.”

The appellant’s argument lacks merit. There is no rule against charging two persons for the same offence if the both committed the offence. The cases the appellant seeks to rely on are not applicable as there was no splitting of charges. In any event, the respondent submitted that the periods involved in the two cases are different. The appellant did not dispute that. The respondent submitted that the appellant was charged for the period December 2012 to June 2013 whereas Mr Gumede was charged for the period October and November 2012. The assessments which are subject of the charges were done on different dates, 10 December 2013 for the appellant whilst Mr Gumede’s assessment was on 19 December 2013. There was nothing improper therefore in charging the two separately. There is no merit in this ground of appeal and it cannot succeed.

The respondent erred and misdirected itself at law in failing to make a finding that it was improper for the disciplinary hearing committee to convict the appellant of failing to charge penalty on additional costs when this charge was neither in the suspension letter nor in the charge sheet.

The appellant argues that the charge sheet did not contain allegations against him pertaining to failure to charge additional costs. He states that for reasons one cannot decipher from the record, the appeals committee found him guilty of failing to charge additional costs on the client. The respondent argues that the appeals committee found that additional costs had not been recorded anywhere during the disciplinary hearing proceedings. However the appeals committee found that no new charge was constituted as the appellant had not charged the penalty contemplated in section 39 of the VAT Act which was an act inconsistent with the contract of employment going to the root of the contract.

The outcome of the disciplinary hearing on pages 194-195 of the record shows that the charge complained of was not a stand-alone charge but was a component of the charge of carrying out any act which is inconsistent with the express or implied conditions of the contract of employment. The record also shows that the closing submissions from both parties canvassed this issue. The minutes of the disciplinary hearing held on 27 October 2015 also confirm that the issue was dealt with at length by both parties. The appellant was legally represented at the hearing. No prejudice has been alleged. In heads of argument it is argued for the appellant that it is improper for an employer to dismiss an employee based on a charge which is different from the one on a charge sheet. The appellant places reliance on Standard Chartered Bank Zimbabwe Limited v Richardson 2000 (1) ZLR 153. In my view the case is not applicable. In that case it was stated that it would be improper to dismiss an employee for a reason which was not in existence at the time the employee is given notice as the reason for dismissal must be the principal reason which operated on the employer’s mind. In casu the reason for dismissal is not only that the appellant failed to charge penalty on additional costs. The reason for dismissal was carrying out an act which is inconsistent with the express or implied conditions of the contract of employment. That charge was not made up of failing to charge penalty on additional costs only. It had various other components of which the appellant was convicted. I therefore find no merit in this ground of appeal.

The respondent erred and misdirected itself on a point of law and on the facts presented before it when it ruled that the appellant negotiated with the client and agreed on the 80/20 rule and did not implement it when he amended the returns when it was in fact demonstrated that the 20% restriction on input tax on the bus running expenses was going to be implemented by the appellant when he would have reached the input tax claim verification stage which stage the appellant had not reached by the time the project was called off by the case manager.

It was argued for the appellant that he never agreed with the client on implementing 80/20 ratio rule and that in fact he does not even know of the existence of such a ratio rule. The appellant’s heads of argument state that he advised the client to restrict its input tax claim on bus running expenses to 20% and that he had not reached the input tax verification stage when the project was called off. The respondent argues that the appellant admitted in his report of 12 November 2014 that he agreed with the client that the client would only be allowed to claim input tax in respect of 20% of its bus business and not claim in respect of 80% of its business. The respondent further argues that when the client was handed over to the Regional Office there was no indication that there was an outstanding verification.

The appellant’s position is not supported by the record of proceedings. It is common cause that the appellant’s report of 12 November 2014 made reference to the agreement that since the period of October 2012 to December 2013 fell into the festive season the taxable portion should be reduced to 20% against an exempt of 80%. The respondent submitted in heads of argument that the appellant failed to realise that the client had in fact claimed input tax in respect of 80% of its business instead of only 20%. The respondent’s submission was not controverted. The appeals committee stated that the appellant was aware of the 20/80 as stated in his report of 12 November 2014 and as recorded in the minutes of the DGC dated 27 October 2015. The appellant’s claim that he did not agree with the client on the 80/20 ratio rule and that he does not know of the existence of such ratio rule is not borne out by the record of proceedings. The claim that he had not reached the input tax verification stage when the project was called off was dismissed by the appeals committee on the basis that the time between when the appellant caused the original submission by the client to be adjusted in the Zimra system after submission of amended returns and his movement to a new assignment was fifty days (50) when there was no activity on the case. The appeals committee concluded that the investigation had been completed. It was argued for the respondent that the appellant did not take any further action on the matter which could have indicated that he had not yet completed investigations or that the assessments were only interim in nature. Even in referring the matter to the Regional Office, there was no accompanying memo to indicate that there was an outstanding issue. I therefore find no merit in this ground of appeal as well.

Resultantly the appeal has no merit and it cannot succeed. The following order is therefore appropriate:

The appeal be and is hereby dismissed for lack of merit.

Mawire & Associates, appellant’s legal practitioners

Sinyoro & Partners, respondent’s legal practitioners