Philip Tauyanago v Zimbabwe Commercial Farmers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/515/14
HELD AT HARARE 20TH JANUARY 2014
CASE NO
JUDGMENT NO LC/H/515/14
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/515/14

HELD AT HARARE  20TH JANUARY 2014		CASE NO LC/H/290/11

& 1ST AUGUST 2014

In the matter between:-

PHILIP TAUYANAGO						Appellant

And

ZIMBABWE COMMERCIAL FARMERS UNION		Respondent

Before The Honourable L Hove, Judge

For Appellant		Ms N.P. Gonese (Legal Practitioner)

For Respondent 		Mr M.T. Maja (Legal Practitioner)

HOVE, J:

The appellant who was employed by the respondent was dismissed after allegations of misconduct were raised  against him.  The respondent (employer) found him guilty and dismissed him.

The employee appealed against both the employer’s decision to find him guilty and to dismiss him.  The employee also noted an application for review and the parties agreed that both the merits of the Review and the appeal be considered in these proceedings:

The Appeal

The employee submitted that there was no sufficient evidence adduced before the disciplinary committee to support a finding of guilty.  The Disciplinary Committee therefore erred when it found the employee guilty.  It was further alleged that the disciplinary committee had diverted from the charges initially raised in the suspension letter and had relied on new allegations which had not been properly levelled against the employee.

Five allegations of misconduct were raised by the employer in their letter of 31 March 2011 which formed the basis of the disciplinary proceedings.

Summarize them here below;

A tender was awarded to Union Degom Construction (Pvt) Ltd to construct the union Head Office without observing proper procedures for awarding a tender.

A tender awarded to Mr Dickson Ziko to provide structural designs was done contrary to the union tender procedures further the employee was alleged to have flouted payment procedures when he paid Mr Ziko.

Tender procedures were also flouted when a tender was awarded to Green Meadows (Pvt) Ltd for the provision of quantity surveying services.  The company, Green Meadows, was also alleged to have been a non existent company.  The company never produced the plans.

The employee facilitated the payment of US$8000 when only US$4000 had been charged.  Payment was made to Degom Construction in respect of water connections, and

Payment procedures were also flouted when the employee authorised the payments of up to US$65 000 in respect of transactions involving the purchase of stands.  Further the employee was alleged to have unprocedurally authorised the payment of US$45 000.

In the decision which found the employee guilty, the Disciplinary

Committee.  In paragraph 4 of the Committees decision, they deal with the allegation of flouting proper procedures when a tender was awarded to Degom Construction (Pvt) Ltd.  The committee noted that although the employee denied awarding a tender, evidence led before then show that procedures were flouted as no contractual agreement was ever entered into between the union and Degom Construction (Pvt) Ltd but the organisation which the employee was heading (the respondent) still continued to deal with Degom Construction (Pvt) Ltd.  The employee in his capacity as the Director of the organisation still continued to deal with Degom Construction (Pvt) Ltd.  The employee in his capacity as the Director of the organisation continued to authorise payments to Degom construction (Pvt( Ltd while professing that there existed no formal tender between the organisation and Degom Construction (Pvt) Ltd.  Thus although the committee failed to prove that a tender was awarded, but it did prove that the organisation’s accounting procedures had been flouted.

As regards the second charge the disciplinary committee found it was common cause and not disputed that the employee had authorised payment to Mr Dickson Ziko for the provision of structural designs.  They noted from the evidence before them that;

“Firstly Mr Ziko was subcontracted by Degom Construction (Pvt) Ltd, why then did the union have to pay him, he should have been paid by Degom Construction (Pvt) Ltd.  Secondly the City of Harare only wanted the union to provide simple architectural designs and yet Mr Ziko was paid for structural drawings.  This was also without following procedures that require for the union to call for quotations first.  Thirdly although Mr Ziko had requested for payment for services by way of a transfer, you facilitated payment of his services in cash.  This is also against union payment procedure for payment of such large amounts.”

This in my opinion shows that the committee was alive to the charges that had been levelled and found that several procedures had been flouted by the man who was the director of the organisation and employed to safeguard the interests of the organisation by ensuring strict adherence for the procedures of the organisation.  Instead he flouted the rules himself.

The committee also found from the evidence before it and from the employee’s own submissions, in relation to the third allegation as follows;

“You facilitated a payment to Green Meadows (Pvt) Ltd for the provision of quantity surveying services without observing union procedures.  As director of the union, you were supposed to ensure that such work was subject to proper tender procedures… you also proceeded to authorise payment when the survey was actually done by City of Harare.  This is shown by a letter from the City of Harare.  As per your submissions, Green Meadows was sub-contracted by Degom Construction (Pvt) Ltd and yet you proceeded to make payment to them.  Worse still, the company “Green Meadows” is a non existent company.”

Clearly there was evidence by way of the letter from City of Harare and

the employee himself that hehad advised that the non existent company had been sub-contracted by Degom Construction (Pvt) Ltd why would the employee proceed to pay them?   There is clearly no substance in the allegation that there was no evidence on which the disciplinary committee could base a finding of guilty on.

In relation to the forth allegation, documents showed that the payment of US$4000 had been processed twice.  Even in his appeal documents, this fact is not disputed as he stated that there may have been a double entry.  The issue was not so much the existence or the non existence of the stand as argued by the employee’s representative in paragraph 9 of its heads of arguments.  The issue was the management of the organisation’s affairs in a manner which raised the possibility of double payment.  This, the employer alleges is an act or conduct inconsistent with the employee’s contract of employment.

Again the committee acquitted itself well as it thoroughly considered all the issues in relation to this allegation and considered the employee’s evidence before finding the employee guilty.

The violation of standing rules of payment alleged in the 5th charge was also properly considered.  The committee relied on evidence which was presented during the hearing and the fact that the employee did not dispute the fact that transactions only had director’s signature when at least 2 signatures were required.

I find that the evidence was sufficient to warrant a finding of guilty on the allegation of misconduct preferred of “an act or conduct inconsistent with the fulfilment of his express or implied conditions of the contract of employment.”

The improperly given authority to pay and the flouting of procedures were conduct sufficiently serious to warrant dismissal.   The employee was at the helm of the organisation and expected as the director to ensure that proper procedures are followed.   Instead he flouted them himself.  This goes to the root of the relationship between the employer and the employee giving the employer a prima facie right to dismiss.

In the case of Standard Chartered Bank Zimbabwe v Chapuka 2005 (1) ZLR 52 (S) held that were conduct which is found to be inconsistent or incompatible with the fulfilled of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and employee, the employer can be within its rights to dismiss.

The disciplinary committee also acted fairly.  These were disciplinary proceedings not proceedings in terms of criminal law regulations were proof has to be beyond any shadow of doubt.   In labour matters, proof only need to be on a balance of probabilities.   (See the case of Zesa v Dera SC 79/88).

The employee was given an opportunity to respond to the allegations.  In the case of Musarira v Anglo American Corporation 2005 (2) ZLR 267 (S) CHEDA JA had this to;

“What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.  The rules of natural justice in such a case are that the party concerned:

must be  givenadequate notice

must be heard or be able to present his or her side of the story; and

should be allowed to call witnesses if he or she so wishes.”

The committee’s conduct in this regard is in my opinion above board.

On the merits of the case, I find that here are not merits in the employee’s

grounds of appeal.

The Review application

In relation to the application for review, the applicant raises three grounds for review;

That the Disciplinary Committee members had an interest in the matter and were biased.

That they disciplinary committee was biased and acted out of malice.

They relied on other allegations totally different from the charges preferred against the employee.

Bias, malice and interest in the cause are indeed proper grounds for

review.  For a party to prove interest in the cause bias and malice they must show that under the circumstances of the case there was a real danger of bias on the part of the disciplinary committee in the sense that the employee would not be able to receive a fair hearing or that his case would be regarded with disfavour.   Real danger or bias as opposed to real probability of bias has to be shown to exist.

It has not been shown that real danger existed.  The circumstances of this case show that objections were made as to the composition of the disciplinary committee and suitable adjustments were made.  Further the record shows that there had been an earlier recommendation to terminate the employee’s contract of employment but the organisation had refused to take up that recommendation and allowed the employee to have an opportunity to defend himself.  The applicant had been allowed a long period to clear his name in relation to the allegations raised.  In my opinion the employer was very fair and allowed the employee a fair opportunity to be heard.  The circumstances of this case therefore were not such that there was a real danger of bias or malice.  The circumstances show that the employee was able to receive a fair hearing.

The test for bias laid down in the case of Bailey v Health Professions Council 1993 (2) ZLR 17 (S) has not been satisfied.  There has not been demonstrated that there was a real danger that the employee would not be unfavourably regarded.

The remedies in an application for review i.e. where the challenge is against the procedure adopted at arriving at the decision are that:

The court can either remit the matter to the disciplinary committee for it to hear the matter in a procedurally correct matter of

Where the record contains sufficient evidence on record, the court is to decide the matter itself.

In casu, I am not satisfied that there was any malice in the cause

established but even if there was there would not be any useful purpose to be served in remitting the matter back for a fresh hearing in view of my findings vis a vis the appeal.

I am not satisfied that the employee has any chances of success on the

merits of the matter where I to remit the matter for a fresh hearing.

The position in law is that it is undesirable that labour matters be decided on the basis of technicalities but on their merits and further an employee should only escape the consequences of an act of misconduct because of their innocence of the allegations they are facing not on the basic of some technicalities.

I am thus satisfied that the employee’s case is very weak on the merits and appellant has not managed to discharge the onus on him in relation to allegations of bias, malice and interest in the cause.

The 3rd ground for review is not a proper review ground but one that has been dealt with, with the merits of the appeal.

I accordingly order as follows:

The appeal be and is hereby dismissed as having no merit,

The application for review be and is hereby dismissed for lack of merit,

Each party bears its and costs.

Gonese & Associates, appellant’s legal practitioners

Kawonde & Associates, respondent’s legal practitioners