Patrick Jambwa v Border Timbers Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/18/2014
MUTARE, 6 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/18/2014

MUTARE, 6 FEBRUARY 2014	    		  	  CASE NO. LC/MC/05B/13 & 28 MARCH 2014

In the matter between:-

PATRICK JAMBWA						Appellant

And

BORDER TIMBERS LIMITED					Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. Tanaya HBR (Legal Practitioner)

For Respondent		-	Mr. C. Maunga  (Legal Practitioner)

MUCHAWA J:

This is an appeal against a decision of the respondent’s Appeals Committee which confirmed a guilty verdict against appellant.

The appellant was employed by respondent as a Customer Services Manager with effect from the 11th May 1970 until the 18th June 2010.  He was charged in terms of section 3.4.6 of the respondent’s Code of Conduct.  The offence was misappropriation which is defined as:

“applying or attempting to apply a wrong use for any unauthorized purpose any funds, assets or property belonging to the company”

Appellant is alleged to have entered into an unauthorized and unwritten contract with one Roney Chitima (a third party) for the processing of material.  At the relevant time there was no such material for the product in the factory.  Appellant used company equipment, consumables, labour and material to add value to the product.  Such transaction happened from April 2010 to June 2010 and a profit was realized by the respondent.  Further the transaction was properly receipted.

The appellant was initially found guilty and dismissed by a disciplinary committee.  A first level appeal endorsed the initial findings.  He then lodged an appeal to the Appeals Committee.  Thereafter appellant referred the matter to a Labour Officer on the reason that the respondent had failed to conclude the matter within the prescribed 30 days period.  Upon referral to arbitration after failure to settle, the arbitrator confirmed the guilty verdict but substituted the dismissal penalty with a severe warning valid for four months.  In the alternative payment of damages in the sum of $43 492.13 was awarded.

The respondent appealed against the arbitral award.  The Labour Court found that the Labour Officer had no jurisdiction to entertain the matter.  The appellant was referred back to the Appeals Committee for determination of his appeal.  The appeal was heard on the 27th November 2012.  The guilty verdict was upheld.  The penalty was reduced to a final written warning valid for four months and a one grade demotion effective from 16th November 2012.  Reinstatement was also effective from the same date.  This is the subject of this appeal.

The grounds of appeal are set as;

The employer’s Appeals Committee erred at law in confirming the Disciplinary Committee finding of guilty against Appellant when the common facts did not disclose the offence alleged and Appellant was evidently not admitting to the charges.

There was no basis for the inference that Appellant’s conduct created a competition for the products of respondent.

The Respondent erred in giving Appellant the harsh penalty of final written warning contrary to the provisions of its own Code of Conduct without laying any justification for doing so.  The penalty was also unmerited in view of the facts of this matter.

The Respondent erred in demoting the Appellant contrary to the specific provisions of its own Code of Conduct that demotion is not a penalty for a specific breach but is to be used where the employee is unable to meet the requirements of his present higher grade job.

The respondent erred in demoting the Appellant solely for purposes of salary and benefits reduction whilst not reducing his duties and responsibilities accordingly.

The Respondent grossly erred in reinstating Appellant with effect from the 16th November 2012 that is to say with loss of salaries and benefits during the period of wrongful dismissal.  There was no lawful justification for the reinstatement to be with effect from the 16th November 2012 and not from 18th June 2010 (the date of unlawful dismissal), there was no valid excuse for treating the period between June 2010 and November 2012 as unpaid leave period.

The Respondent unfairly punished the Appellant as the latter, who in committing the alleged offence made profit for the company, was given a final written warning yet supervisors who previously caused death at work by negligence were given mere recorded warnings.  There was no uniformity, fairness or consistency of punishment.

Respondent avers that appellant was properly found guilty as charged as he pleaded guilty.  It is also argued that the sentence meted out was the most appropriate in the circumstances.

I proceed to deal with the ground of appeal in turn, below.

Ground 1.Was the Appellant properly found guilty?

Respondent argues that appellant pleaded guilty to the charge and explained the facts relating to the charge. In this he is said to have admitted to both the charge and the facts that sustained the charge.

The charge is “applying or attempting to apply to a wrong use for an unauthorized purpose funds or property belonging to the company.”

In the initial disciplinary hearing upon being asked about his plea to the charge:

“HO	  : How do you plead to the charge preferred against you?

Accused: Guilty. I would like to apologise to you and BTL. I did not intentionally do it. I have worked for BTL for 41 years and never expected to tarnish my image like this. What happened is, ….”

At this first appeal hearing the following conversation took place .

“P.O.		: You pleaded guilty in the initial hearing.

Appellant	: Yes

P.O.		: What you are not happy with is the sanction?

Appellant	: Yes”

On the other hand it is argued on behalf of appellant that his plea of guilty was qualified and as a self actor he did not really admit to committing the offence.  I was referred to his explanation at the disciplinary hearing as follows:

“Maybe where I went wrong was failing to read what my boss wanted me to do”

The above quotation is explained to mean that the appellant had not been aware that he had an obligation to seek authorization first for the transaction in question.  This lack of awareness of any work related rule to be followed is said to have been born out of the respondent’s past conduct and practices.  This is captured in the hearing as follows:

“P.O.		:	But you pleaded guilty in the initial hearing.

Appellant	:	My plea was from the understanding that I did not seek

authority.”

Appellant explains that during the difficult days the company deliberately eased its officers’ role separation.  In acting as he did, appellant claims that he assumed the company was still operating in the relaxed informal way that had characterized the economic turmoil period during “Gadzikwa’s days” when everyone was tasked to source raw materials.

The record shows that such a period of doing business informally is common cause.  It is argued that since there is no proof of the revocation of the informal period, appellant was not aware of the need to seek authority and his plea of guilty is therefore not genuine.

I was referred to the case of S v Matsetu HH 84 – 13 which quotes S v Dube and Anor 1988 (Z) ZLR 385 (S) at 389H-390A-B with approval.  It sets out the principle that where there is a plea of guilty, a judicial officer should be careful.  This is because not every fact should be regarded as proved simply because it is admitted.  One should be careful to establish what it is that the accused is admitting.

I did take heed of the approach proposed in S v Matsetu supra and sought to establish what it is the appellant admitted.  It is clear that appellant admits to using company material, equipment and labour to process a third party’s product without approval of senior management or even disclosure to his team members.  I believe that the explanation that such conduct was permissible in the past and that profit was made are only mitigatory factors.  The admitted aspects are sufficient to satisfy the finding of guilty to the charge of applying or attempting to apply to a wrong use for an unauthorized purpose funds or property belonging to the company.  There was no need to prove malice.

In the circumstances I find that appellant was correctly found guilty as charged.

Ground 2 – The inference that competition was created for respondent.

Appellant raises the issue of the inference made by the tribunals a quo that he created competition for the Respondent.  It is argued that there was no basis for this inference as it was conceded that appellant made an “above normal” profit on the transaction.

I find that the inference was reasonable as an anticipated result of the conduct in question.  Appellant was helping a competitor create a product which respondent was also in the business of producing.  The fact that a profit was made is mitigatory in nature

.

I therefore find no merit in the ground of appeal.

Ground 3 – Propriety of the penalty of the 4 months final written warning.

It is appellant’s case that the offence committed does not fall under the category of a final warning penalty.  Further, because appellant was a first offender and the company benefitted from the transaction which was properly receipted, the penalty is seen as improper.

I was referred to section 4.6.1 of respondent’s Code of Conduct.  This provides that a final warning is given for committing any breach of the following nature: breaches relating to unlawful collective job action, breaches relating to theft, fraud, corruption, threatening violence, assault or fighting when the circumstances do not warrant a more severe penalty.

It is clear that appellant’s offence is not one of those recommended for a final warning.

Respondent however referred me to section 4.1.2.of the relevant Code which sets out that the Code provides guidelines on the appropriate remedy or penalty to be imposed.  It is left to the relevant authority to impose a more or less severe penalty.  It was further argued that imposition of a penalty is a matter of discretion.  This has long been established in the case of Malimanji v CABS SC 47/07.

“… the issue of what penalty to impose after an employee is found guilty of an act of misconduct is clearly one of discretion”

It is also argued that the sentence imposed is by no means severe as it is only valid for four months and is meant to be deterrent in the circumstances.

My finding is that the imposition of a penalty is a matter of discretion.  The position long taken by the Supreme Court is that the question of penalties is at the discretion of the disciplinary authority tasked with administering discipline.  The position taken in respect to dismissals applies with equal force in casu.  In Circle Cement (Pvt) Ltd v Chipo Nyawasha S-60-03 at p 5 it was held.

“once the employer had taken a serious view of the act of misconduct committed by the employees to the extent that it considered it to be a repudiation of the contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration will not arise.”

In casu the disciplinary committee exercised its discretion and imposed the penalty it saw fit in the circumstances, which is less than a dismissal.  I have no basis to interfere with the exercise of this discretion.

This ground of appeal is therefore dismissed.

Ground 4 – Propriety of the demotion sanction.

Respondent’s Code of Conduct in section 4.8.1 says about demotion;

“This is not used as a penalty for a specific breach.  It is used where the employee is unable to meet the requirement of his/her present job, but is suitable for continued employment in a lower capacity.”

The above clause is very specific and removes the sanction of demotion from those to be imposed at the discretion of the disciplinary authority and for all other breaches.

I therefore find that the appeals committee erred in imposing demotion where it was not proved that appellant was unable to meet the requirements of his present job.  In this respondent acted contrary to its own Code (See Musarira v Anglo American Corporation SC 53/05) consequently this ground of appeal succeeds.

Ground 5 – Effect of demotion.

It is argued by appellant that respondent’s demotion entailed solely the reduction of salary, benefits and esteem whilst not reducing his duties and responsibilities.  It is further argued that this is a classic case of pushing appellant to dismiss himself in frustration and humiliation, a case of constructive dismissal.

It was averred that upon the reinstatement appellant, now demoted is earning the eight hundred eighty seven dollars and seventy cents he was earning at the time of his dismissal.  Then, appellant states, junior customer’s services managers were earning four hundred dollars per month.  He claims they are now earning over two thousand dollars per month.

Appellant now no longer has the benefit of a company vehicle.

Appellant claims however to be still doing the same duties and responsibilities.

The Oxford Advanced Learner’s Dictionary defines demote as moving somebody to a lower position or rank, often as a punishment.

Case law has established that the common law knows no remedy of demotion and that it is only available if expressly provided for in the Code of Conduct or statute (See Mhowa v Beverley Building Society 1998 (1) ZLR 546).

As I have already found that the demotion was not an appropriate penalty in terms of the relevant code, I find too that the resultant effects of the demotion are not competent in the circumstances.  This is so as appellant was not moved to a lower position in terms of the roles and responsibilities.  In this the appeals authority erred.

This ground of appeal succeeds.

Ground 6 – The propriety of the reinstatement with loss of salary and benefits.

Appellant was reinstated with effect from the 16th November 2012.  In essence this means that he lost salary and benefits from the 18th June 2010 being the date of the dismissal.  It is argued by appellant that there is no valid and lawful excuse for purporting to treat the period between June 2010 and November 2012 as unpaid leave.

I was referred to the case of Chiriseri and Anor v Plan International Sc 56/02 wherein it was stated that the word “reinstate” carries no automatic retrospective connotation.  Appellant argued however that this does not give an employer the unfettered discretion as to whether to reinstate with retrospective effect or not.  I was urged to consider whether there are exceptional compelling reasons for the position taken by respondent.  This, it was argued, is to ensure that the respondent does not benefit from his own misdeed of having unlawfully dismissed appellant. Respondent also relied on the case of Chiriseri v Plan International supra for the contrary position.

The trite position remains that reinstatement does not automatically come with a retrospective connotation.

I find that in casu reinstatement with loss of salary and benefits was made as a matter of the exercise of discretion by the appeals committee.  The Supreme Court has already cautioned appellate bodies from interfering with the exercise of discretion by a lower court unless such exercise of discretion was based on an error or it took into account irrelevant matters or did not consider relevant matters.  (See Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njanjai + Ors 2000 (1) ZLR 85 (SC).

In casu it is argued the appeals committee does not seem to have taken into account the following findings it made;

That though appellant used company material, equipment and labour to process third party raw material, the transaction was properly accounted for/receipted.

That there was no evidence on record to prove that appellant’s actions were malicious.  On the contrary the respondent made “above normal” profit.

It was only an inference that such conduct potentially created competition for respondent’s products.

Appellant had served the company for fourty (40) years and was a first offender.

Appellant had not gained personally from the misconduct and had shown remorse.

Appellant argues the dismissal was unlawful and the changing of this penalty to a final warning is a concession that the dismissal was unlawful.  The reinstatement without salary and benefits is said to be contrary to the spirit of charging the penalty.

The parties sought to blame each other for the delay in finalization of the proceedings.  Appellant’s reliance on the nemo ex suo delicto meliorem suam conditionem facere potest principle (one cannot benefit from his own misdeeds) and respondent on appellant’s engagement in frivolous applications leading to the delay in finalization of the matter.

I wish to put this to rest by pointing out that in casu, respondents were able to substantiate the alleged misconduct necessitating a dismissal and that appellant had every right to prosecute his claim for unfair dismissal.

The remaining question is therefore one of whether I should interfere with the discretion exercised.  The answer is in the negative.  This is because the factors were considered in reducing the penalty from a dismissal to a final warning.

This ground of appeal is therefore dismissed.

Ground 8 – No uniformity, fairness or consistency of punishment.

Appellant referred me to section 4.1.1.(c) of Respondent’s Code of Conduct which provides as follows:

“As far as is practicable, similar breaches committed in similar circumstances should be treated equitably through the award of similar penalties.”

Reference was made to two cases  in which employees died at work and supervisors were found to have been negligent.  The supervisors were given penalties of recorded warnings in both instances.

It was contended that appellant’s sentence is too harsh in the circumstances.

I find that appellant’s case is not advanced in any way by making reference to breaches committed in totally different and not similar circumstances especially as the breaches are also different.

This ground of appeal is consequently dismissed.

Accordingly I order as follows:

The appeal succeeds to the following extent:

The decision of the Board Timbers Limited Appeals Committee of the 27 November 2012 is set aside and substituted as follows:

“The penalty is hereby reduced to Final Written warning valid for four months.  Appellant is reinstated with effect from 16 November 2012 from which date, he should receive the salary and benefits commensurate with his position.”

Mugadza Chinzamba & Partners, Appellant’s legal practitioners

Maunga Maanda & Partners, Respondent’s legal practitioners