Pithius Shoko v Zimbabwe Revenue Authority (ZIMRA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/191/2016
HARARE, 24 SEPTEMBER 2015
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/191/2016

HARARE, 24 SEPTEMBER 2015			           	         CASE NO. LC/H/872/12

AND 8 APRIL 2016

In the matter between:-

PITHIUS SHOKO							Appellant

And

ZIMBABWE REVENUE AUTHORITY (ZIMRA)		Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr R. Maganga (Legal Practitioner)

For Respondent		Mr S Bhebhe (Legal Practitioner)

MAKAMURE J:

This is an appeal against the decision of an Arbitrator sitting at Harare.  The grounds of appeal are as follows:

“The Honourable Arbitrator erred and grossly misdirected himself when he ruled that the application by Claimant was out of time as if conducting of the hearing was supposed to be initiated by Claimant.  The onus to discipline is upon the employer (Respondent) hence he is the one who failed to constitute a disciple nay (disciplinary) committee on time in terms of the provisions of the ZIMRA Code of Conduct.

The Honourable Arbitrator grossly misdirected himself at law in that he took the unsubstantiated evidence from the Respondent at face value without any basis at law.  The reason he gave of refusing the point of an IT specialist does not have any merit at all.  The issue he raised that the IT specialist was supposed to write an affidavit for him to be allowed to give evidence is very misleading and disturbing. This is quasi-judicial process wherein the Honourable Arbitrator was not supposed to make it a cast in stone that claimant was supposed to make it a cast in stone that claimant was supposed to meet his requirements of producing an affidavit as a condition for him to accept participation of an expert.  The major question is, “does the Honourable Arbitrator understand the complications and or challenges of computer technology”

The Honourable Arbitrator appears as if he does not understand the procedures of conducting misconduct hearings at Respondent’s work-place.  Disciplinary is (sic) for the Respondent and setting of a committee lies with the Respondent.  Respondent is the one who failed to constitute a Disciplinary Committee hence Claimant cannot be time barred, rather it should the other way.

The Honourable Arbitrator severely misdirected himself when he ruled that the Claimant abused the Respondent’s laptop without any basis at law.  The Respondent’s word against the Claimant cannot be taken to mean that Claimant committed the alleged offences.  This is the reason why the involvement of an IT specialist was critical.  The Claimant was not found viewing pornographic material and or sending it to any recipient, rather the Respondent claims that he found the purported evidence in his server which monitored and administered by Respondent (sic).  Passwords of Respondent’s employees including that of the Claimant are controlled by the Respondent hence high (chances) (sic) that he is the one who plated (sic) the material and appear as if Claimant is the one who send such obscene material.

The Honourable Arbitrator did not address the issue of not conducting the hearing on time.  Indeed cases should not be decided on technicalities but technicalities which have damaging effects should not be ignored pin fact (sic) they should be dealt with appropriately.

The Honourable Arbitrator grossly misdirected himself when he chose to disregard that Respondent did not give the Claimant IT policy in terms of clause 6.4 of the ZIMRA Code of Conduct.  The Honourable Arbitrator was supposed to be guided by provisions of the Code of Conduct which is a registered tool to discipline Respondent’s employees.  The Respondent’s general conduct relating to his employees especially those in workers committee is highly questionable. The Chairperson of the workers was called a Savimbi who leads Savimbis and this is reduced to writing.  Under those circumstances what can stop the Respondent to plant materials in the members of the workers committee in boxes and all those who openly support workers committee.  The Honourable Arbitrator simply doubted that the Respondent has the capability of planting such materials in his employees’ in boxes including Claimant’s when the relationship is so bad.

The Honourable Arbitrator grossly misdirected himself when he upholds (sic) the Disciplinary Committee’s verdict when in actual fact no decision was ever made by Disciplinary Committee.  Disciplinary Committee did not manage to preside over the matter in dispute hence the reason why the matter was brought before the Honourable Arbitrator.

Honourable Arbitrator misdirected himself when he ruled that there is no remedy on the part of the Respondent to the Claimant when in actual fact Respondent had failed to conduct a hearing resulting in the claimant remaining on suspension for a period of more than twelve months.  When a hearing is out of time remedy is to reinstate the accused and reinstitute charges afresh to bring about a balancing act.”

When the parties appeared before the Arbitrator they agreed to proceed by way of submitting written submissions (p14).  They left it up to the Arbitrator to decide whether or not to call them.  Parties did appear on 1st October 2012 and presented oral argument.  Thereafter the Arbitrator proceeded to make his determination.  In this regard I find that ground 1 deals with the procedure adopted by the Arbitrator.  That is a ground for review and is therefore not properly before the court. It appears that the appellant was aggrieved more by the manner in which the arbitration was conducted than the substantive issues raised against him.  This is said in view of how the grounds of appeal are phrased. Be that as it may, the Arbitrator cannot be faulted for how he conducted proceedings. This was as agreed between the parties.  The appellant cannot now cry foul for something that was agreed upon.

The appellant was charged with violating Group D3 or alternatively Group D25 of the applicable code.  Both are regarded as “most serious offices.” He was charged as follows:

“Count 1: Wilfully applying a wrong use, or unauthorized purpose to assets or property [D3] You were issued with a ZIMRA computer and e-mail facility by the employer for purposes of carrying out your duties in terms of your contract of employment.  On the following dates:

26.04.2010		11.21AM

03.06.2010		 8.38 AM

10.06.2010		 4.22 PM

14.06.2010	 	 9.47 AM

22.06.2010		 9.53 AM”

You used the ZIMRA computer and e-mail facility and forwarded pornographic e-mails to Gibson Nyarugwe, Tendai Taziwa, Gaston Mandere, Judgement Donza, Wilbert Mangwazi and Paul Chuma, which  contained non work related obscene and immoral material, namely explicit sexual acts.  Such use of the computer and e-mail facility was not authorized by the Employer and constituted wrong use of the said assets or property.  The dissemination or distribution of the obscene material aforementioned was not done as part of the execution of your duties but was done while you were on a frolic of your own.

1.2	The use of the Zimra e-mail and IT equipment for the purpose of distributing and disseminating obscene and immoral material is prohibited in terms of the Zimra ICT policy

Count 2:	ALTERNATIVELY: “Carrying out an act which is inconsistent with the express or implied conditions of the contract of employment”. [D25]

2.1.	You are employed by ZIMRA as an Administration Officer.  In terms of your contract of employment you were at all material times expected to exhibit a high degree of honour, integrity and professionalism and conduct yourself in a manner that is respectable.  Furthermore it was an implied condition of your contract of employment that you would always act and conduct yourself in accordance with the laws of the country.  And furthermore you were also required to devote all your time to the carrying out of the business of ZIMRA.

2.2.	On 26.04.2010 at 11.21AM, 03.06.2010 at 8.38AM, 10.06.2010 at 4.22PM, 14.06.2010 at 9.47AM and on 22.06.2010 at 9.53AM which times you were expected to be carrying out the work of the employer, you used the Zimra ICT equipment, that is, computer and e-mail facility to send obscene and objectionable material to Gibson Nyarugwe, Tendai Taziwa, Gaston Mandere, Judgement Donza, Wilbert Mangwazi and Paul Chuma.

2.3.	When you sent the said e-mails you had abandoned the employer’s work and engaged on a frolic of your own during working hours.

2.4.	Furthermore, the dissemination of such obscene and objectionable material is outlawed by both ZIMRA and the Zimbabwean laws. Your conduct therefore was not lawful, professional or honourable.  It was a breach of your express and implied conditions of your contract of employment.

3. 	You are hereby notified to attend a disciplinary hearing in accordance with the provisions of the Zimbabwe Revenue Authority Code of Conduct, to which you are a party, at Zimra 3rd Floor Boardroom, Kurima House, 89 Nelson Mandela Avenue, Harare on the 19th of July 2011 at 0900 hours.  You are advised to report at the Reception on the 1st Floor, Kurima House.

4.	You may respond to the above charges in writing if you so wish.

5.	You may be accompanied to the hearing by a representative of your choice.  You may also bring in any witness(es).  Note that it is your responsibility to notify your representative and/or witness(es) of the time, date and venue of the hearing.  It is also your responsibility to seek for the release of your witness(es) from work to attend the hearing should they be ZIMRA employees.

6.	Please acknowledge receipt of this notification by signing on the space below and returning the copy to the bearer.”

The evidence presented before the Learned Arbitrator showed that the appellant forwarded pornographic materials to fellow ZIMRA employees during working hours.  He was using the respondent’s computer which is solely supposed to be for work related communication.  Such use was not authorized by the respondent, appellant’s employer.  The Learned Arbitrator found as a fact that the said pornographic material were sent from the appellant’s computer.  Consequently the Learned Arbitrator found the appellant guilty of the charges.  From what is on record there is sufficient evidence against the appellant. It would have been surprising had the Learned Arbitrator made findings to the contrary.  In Nyahondo v Hokonya & Ors 1197 (2) ZLR 457 (S) the Supreme Court stated:

“I have not been furnished with any reason to depart from the general rule that an appellate court will not interfere with a decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a decision.”

There was therefore no error in the findings by the Arbitrator.

I would just add that since there was an alternative charge, the appellant could not be convicted, competently of the alternative charge.  Thus I am inclined to confirm that the appellant was appropriately convicted of the main charge.  The alternative charge therefore falls away.

On the basis of the findings by the Arbitrator, it is clear that the decision cannot be interfered with. As indicated earlier, some grounds of appeal that is 1, 3, 5, 6, 7 and 8 deal with issues of procedure. Those grounds are not properly before the Court.  What is clear however is that the manner in which the appellant used the respondent’s computer was unauthorized and wrong. There was sufficient proof against the appellant (see ZESA v Dera 1998 1 ZLR 500 (S)). Further in view of the evidence against the appellant grounds 2 and 4 have no merit.  The appellant misused the respondent’s property.

Issue was raised regarding the respondent’s ITC policy, that is, that the appellant did not sign for it.  That being the case the argument proceeded, he cannot be said to have breached a policy which he was not aware of at the matenal time.  The evidence shows that the appellant committed the offences during working hours.  The question of the ITC policy would only assist in emphasising the need to guard against misuse of the respondent’s property and in this case the laptop.  The lack of knowledge of the ITC policy by the appellant therefore takes his case no further. This cannot be used as a defence in the face of such overwhelming independent evidence against him. As correctly submitted on behalf of the respondent, the appellant was a senior employee and ought to have led by example.  He failed dismally in that respect.  His conduct clearly goes to the root of the contract of employment between him and the respondent.

In Tregers Plastics (Pvt) Ltd v Woodreck Sibanda & Anor SC 22/2012 the Supreme Court stated:

“It is now settled law that where the misconduct goes to the root of the employment contract relationship an employer is entitled to dismiss the employee.  Further the principle has now been firmly established that an Appellate Court will not interfere with an exercise of discretion by the employer unless there has been a misdirection in the exercise of such discretion.  Innscor (Pvt) Ltd v Chiveto SC 6-12; Passmore Malimanjani v Central Africa Building Society 2007 (2) ZLR 77 (S); Toyota Zimbabwe v Posi SC 55/07”

In the present case I am not able to say that the Arbitrator’s discretion was improperly exercised.

In the result I find no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed.

Maganga & Company, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners