Ronald Anesu Sagonda v Organization for Public Health Interventions and Development (OPHID)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/104/25
CASE NO LC/H/837/23
30TH MAY, 2023
AND 11 MARCH 2025
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IN THE LABOUR COURT OF ZIMBABWE HARARE 30TH MAY, 2023

JUDGMENT NO LC/H/104/25 CASE NO LC/H/837/23

AND 11 MARCH 2025

RONALD ANESU SAGONDA	APPELLANT

ORGANIZATION FOR PUBLIC HEALTH	RESPONDENT INTERVENTIONS AND DEVELOPMENT(OPHID)

Before the Honourable Chivizhe, Judge:

For Applicant :	Mr. E. E. Matika For Respondent:	Mr. C. Kwaramba

CHIVIZHE, J:

There has been an inordinate delay in the hand down of this judgement. This was partly due to the voluminous record of proceedings and the number of issues that needed resolution. I extend my sincere apologies to the litigants notwithstanding.

This is an appeal by the Appellant against parts of the Ruling on Charges by the Hearing Officer Mr. E. Jera dated the 4th day of August 2022 and the entire penalty by the same Hearing Officer dated the 12th day of August 2022 received by the Appellant on the 15th day of August 2022. The appeal is fixed in terms of

BACKGROUND FACTS

The Appellant was employed by the Respondent as a Finance and Operations Director. He was on a four-year fixed contract which commenced on the 1st of October 2021running till the 30th of September 2025. The Appellant was charged with allegations of misconduct in terms of Section 4(a) of the National Code of Conduct i.e. Statutory Instrument 15 of 2006 i.e. any act of conduct or omission inconsistent with the fulfilment of the express or implied

conditions of his contract of employment. In the alternative, he was also charged with gross incompetency or inefficiency in the performance of his work under Section 4 (f) of the same code. Following disciplinary hearing proceedings held from the period running from 14 July 2022 to 29 July 2022. Appellant was found guilty of nine out of twelve counts of contravening section 4(a) of the National Code of Conduct i.e. Statutory Instrument 15 of 2006, ‘any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of your contract of employment’ in a ruling dated 4 August 2022. Pursuant to the hearing and the verdict of guilty, the Appellant was dismissed from employment with effect from the 12th of August 2022. Appellant was aggrieved by both the guilty verdict and the penalty thereof leading to the lodging of the present appeal before this court.

GROUNDS OF APPEAL

The Hearing Officer misdirected self in finding Appellant guilty of the alleged offences by failing to take into cognizance that the disciplinary hearing was premature in that under the contract of employment disciplinary proceedings against an employee for poor performance could only be commenced after specified reviews and corrective procedures were done, but none had been done in the present case.

The Hearing Officer misdirected self in finding Appellant guilty of Count 1 ie. failing to put in place adequate management controls in the Procurement Department despite that evidence was adduced confirming that compliant procurement policies were put in place and that the development of policies and procedures was an ongoing process and there was no set timeframe for completion of same.

The Hearing Officer misdirected self in finding Appellant guilty of Count 2 i.e. failing to ensure that new staff undergoes training and development, when the names and contracts of employment of the said new staff were never availed in the charge sheet and evidence in chief.

The Hearing Officer misdirected self in finding the Appellant guilty on Count 3 i.e. failure to hold regular monthly departmental meetings, in disregard of strong and compelling evidence showing that the appropriate meetings were held.

The Hearing Officer misdirected self in finding Appellant guilty of Count 4 i.e. failing to conduct quarterly reviews and spot checks on the Procurement and Logistics Manager whereas;

Quarterly reviews were dependant on submission of self-appraisals by the employee set to be reviewed which were never received by the Appellant.

There was evidence of spot-checks being conducted.

The Hearing Officer misdirected self on the facts in finding Appellant guilty of Count 5 i.e. failure to undertake supplier evaluation and to establish an approved supplier's list, improperly disregarding evidence showing;

That there was still a valid pre-approved suppliers list going up 2023.

The available suppliers list was in the process of being updated within the prescribed timeframes.

The Hearing Officer misdirected self in finding Appellant guilty of Count 7 i.e. consistently failing to ensure adherence to set procurement turn-around period of fifteen (15) days whereas the said turn

-around cycle was a guide and not absolute and the Complainant admitted that the fifteen (15) days period was unrealistic and the policy required revision.

The Hearing Officer misdirected self in finding Appellant guilty on Count 9 ie acting contrary to his duties in the purchase of 63 cooler boxes in that the purchase order was electronically generated and as such there was no way there would be a mis-match between the purchase order and the requisition.

The Hearing Officer misdirected self in finding the Appellant guilty on Count 10 i.e. failure to provide oversight on the Procurement and Logistics Manager and failure to investigate the re- working of trunks in that;

The re-working of the trunks was due to communication breakdown on the part of the Procurement and Logistics Manager and the supplier which could only be discovered after the fact; and

There was nothing further to investigate as, in the Appellant's discretion, the explanation by the Procurement and Logistics Manager in her Memo of 11 January 2022 was sufficient.

The Hearing Officer misdirected self in finding Appellant guilty of Count 11 ie. failing or neglecting to manage the procurement of sanitizers in that;

The Hearing Officer created his own offence which was not on the charges as the charge never related to substandard sanitizers' nor the cost of $5 686.07.

There was no evidence adduced that there were suppliers from Bulawayo who had tendered or responded to the Advert nor at the very least that there was ever a supplier from Bulawayo.

There was no evidence adduced to prove that the costs of transportation were avoidable in the circumstances as previous purchases were always done by Central Office in Harare.

Appellant did not sit in the Procurement or Tender Committee to decide suppliers.

The Hearing Officer erred at law and misdirected self in imposing the penalty of dismissal, whereas in the circumstances such penalty was unfair considering that;

no corrective and educational measures were first applied as required by Appellant's contract of employment and the OPHID Human

Resources Manual;

Appellant's culpability, if any, was indirect and minimal given that the offences in question were directly committed by other employees.

Compelling personal factors such as Appellants lengthy clean record of service and that Appellant was the bread-winner for his family.

In relief the Appellant prays for an order as follows;

That the appeal be and is hereby allowed with costs.

That’s the ruling on the misconduct charges against Ronald Anesu Sagonda dated the 4th day of August, 2022 be and hereby set aside and in its place substituted with:

The accused is found not guilty on all the charges.

The penalty of dismissal dated 12th day of August, 2022 be and is hereby set aside.

The Appellant be reinstated to his position with costs of salary and benefits with effect from the date of dismissal. Should reinstatement be no longer tenable the Appellant (shall) be paid damages in lieu thereby as may be agreed by the parties, failure of such agreement either party may approach this court for quantification thereof.

APPELLANTS CASE

On the first ground of appeal, Appellant submits that the Hearing Officer fell into error in failing to make a finding that the disciplinary proceedings were premature regards being had to the conditions set by the parties in the contract of employment. Clause 5 of the contract of employment sets procedures to be followed if an employee is poorly performing and the role that the employer ought to play before there is any disciplinary action taken for poor performance. These being inclusive of informal and formal periodic performance management reviews, self-reviews and quarterly reviews. It is also Appellants submission that Clause 5.2 of the contract deals with performance expectations, stipulating that it is only when an employee performs below 80% that such an employee will be put on a 3 months corrective plan. It is only after the corrective plan fails that the employer will contemplate terminating the contract of employment. In casu, Appellant submits that the Respondent simply skipped the process as stipulated in the contract of employment by going straight for disciplinary action. The Appellant further submits that the Respondent’s Human Resources Manual cements the provisions of Clause 5 of the contract of employment under section 8.3.1.1. In terms of the manual policy, performances below expectations or unsatisfactory performances can only attract disciplinary action when there is no improvement after two months of a performance

improvement plan. Further Appellant submits that in terms of Clause 2.4 of the contract, he was on probation for the first three months of the contract and in terms of section 5.3.4 of the Human Resources Manual, he was supposed to be on training and development with appropriate guidance, training and development. It is his contention however that the Respondent did not do so but merely resorted to charging him for perceived shortcomings most of which arose during the probationary period.

The Appellant further submits that the effects of failing to follow conditions set by parties in a contract of employment ought not to be underplayed. The parties agreed on pre- disciplinary processes in the contract of employment as also buttressed by the Human Resources Manual, therefore the same must be held sacred and sacrosanct. It is Appellant’s contention that the Respondent cannot simply decide to abandon same and resort directly to discipline. The intention of the parties must be ascertained within the four corners of the contract of employment and the Court must abide by same. In support of this Appellant relied on the authority of Delta Beverages (Pvt) v Blakey Investments (Pvt) Ltd SC 59/22 wherein it was held that when interpreting contracts, courts must give effect to the intention of the parties. Appellant also relied on the authority in Warren Park Trust v Pahwaringira & Ors HH39/2009 where the court held that it is settled law that where parties have agreed on a particular mode of termination of their contract, it must be followed to the letter. In this regard, Appellant contends that the contract is clear with regards to the steps which ought to have preceded the disciplinary action against him. The Appellant contends that he was never warned nor given a chance to improve no evidence had been adduced to that effect, therefore the disciplinary action against him was premature. The Hearing Officer therefore fell into error in failing to make a finding that the allegations were premature despite the fact that he had raised the issue. It is Appellant’s contention that failure to make a finding on issues raised in proceedings is considered fatal to any proceedings to the extent of vitiating the proceedings.

On the second ground of appeal, Appellant contends that his conviction on the 1st count was improper. His job description states that he had a duty to ‘develop, review, recommend and implement policies that pertain to human resources management, IT, procurement logistics, and administration to ensure efficiency and effectiveness of operations and compliance with USAID rules and regulations.’ From the job description, it is apparent that his duty was to be executed during the subsistence of the contract and not by a specified date, meaning this was an ongoing and never-ending duty The Appellant submits that the contract of employment still subsisted as it was a 5-year contract. At the time of the alleged misconduct, the contract had

only subsisted for 9 months and he had since developed and revised the OPHID Procurement Policy and Procedures and Forms attending to it. He had also developed the Vendor Management Operating Procedure which was still pending review. It is Appellant’s contention that the Hearing Officer failed to take into cognisance that the review of policies is a never- ending process dependant on the changes in the working environment and reactions to emerging trends and challenges. The Appellant submitted that the purported email ‘admissions’ him ought not to have been interpreted as a failure by him in his duties as no financial management policy is watertight but can only be revised after shortcomings are observed. The Appellant further submitted that the Respondent had only stated that it had expectations that he would put policies in place the Respondent however in hearing confirmed it had not conveyed these expectations to him. Further, the absence of a fixed time frame also meant that he was still within time to put policies in place and review them during the lifetime of the contract as he had already been doing and in any event, it had not been shown in the hearing that the existing policies were not in compliance with the USAID guidelines. The Appellant relied on the authority in Basera v The Registrar of the Supreme Court of Zimbabwe & Ors SC 35/22 where the court held that ‘considering rule 11(1) is silent on the time frame for filing of a certificate of service, it must be interpreted that to mean compliance should be made within a reasonable time.’ Appellant contends that the Hearing Officer therefore erred and fell into a gross misdirection by failing to appreciate all the se facts and finding him guilty.

On the third ground of appeal, Appellant submits that the contracts of the staff who are alleged to have failed to undergo training were not availed at all during the hearing proceedings. These contracts would have put to rest the whole issue as they would have assisted in ascertaining when the concerned staff were engaged or employed and whether indeed, they were subject to the training and development policy. It is Appellants contention that the Respondent was uncertain of the charge as it also failed to include in the charge sheet, the names and dates when the alleged employees were engaged. The Appellant also contends the complainant never mentioned names in the affidavit other than saying three casual clerks. It is only in re-examination that random first names were mentioned for the first time during the entire hearing. Appellant further submits that the failure to clearly identify the persons who were supposed to undergo training and failure to adduce their contracts of employment or exact period of employment shows that the Respondent failed to establish their case on a balance of probabilities. The Respondent had the onus to prove him guilty in respect of count 2 and they failed to do so. Reference was made to the authority in Labour Law in Zimbabwe by L.

Madhuku on pg.178 where it was stated that, ‘in determining whether or not an employee is guilty of the offence charged, the disciplinary committee must rely on facts. In order to convict, the proved facts must disclose the offence with which the employee had been charged. Where the offence is not proved, the employee is entitled to an acquittal. The onus of proof is on the employer under the principle that in civil proceedings the party who seeks a remedy must prove the grounds thereof.’

On the fourth ground of appeal, the Appellant submits that his conviction on Count 3 was improper. It is his contention that despite conceding that there was evidence showing that the procurement department held meetings with other departments, the Hearing Officer failed to appreciate that the procurement department does not operate in isolation, holding own departmental meetings would have resulted in a repetition of the agendas executed and dealt with through the joint departmental meetings. Appellant also submits that during the cross examination, the complainant confirmed that the department had the discretion to set their own agenda and deliberate on it, hence there was no need to repeat agenda items already covered. It is Appellants contention that faced with such evidence, the Hearing Officer was legally bound to acquit the Appellant as the evidence showed that on the basis the meetings confirmed to have been held there would have been no need to hold the procurement departmental meetings. The minutes would suffice to conclude that the procurement departmental meetings were held.

On the fifth ground of appeal, Appellant submits that his conviction on count number 4 was improper. It is his contention that it was not in dispute, the Human Resources Manual clearly stated that quarterly reviews were a product of monthly self-reviews, spot checks and other supervision documentation as stipulated in Section 8.3.1 (2)(iii) of the Human Resources Manual. Effectively, self-reviews would therefore be mandatory to effect the quarterly reviews and without them the quarterly reviews would be impossible. Appellant submits therefore that self-reviews were a condition precedent to the quarterly review and because he did not receive any self-reviews as such, he could not do the quarterly reviews. Appellant further submitted that it is common cause that where a condition precedent is set before a thing is done, that condition precedent must be met first. Reliance was placed on the case of Chigodora & Anor v Rodrigues & Ors HH 276/10. It is Appellant’s contention that the Hearing Officer went on a frolic of his own in stating that it was his duty to follow up on the subordinates for the self-reviews, an issue which was not canvassed in the charge therefore making his  finding erroneous. It is Appellant’s further contention that the Hearing Officer

equally erred on the same count in not making any finding on the issue to do with spot checks. This failure to make a determination on the issue is thus fatal and renders his finding of guilty a nullity.

On the sixth ground of Appeal, it is Appellant’s submission that HIS conviction on the 5th count was improper. He submits that the Hearing Officer erroneously made a finding of guilty against him for failure to undertake supplier evaluation and establishing an approved supplier’s list, this was however in complete disregard of evidence which was contrary. Pertinent to the matter, section 6(b) of the Procurement and Procedures Manual states that the pre-approved list is maintained for a period of five years. It was clear that list that was adduced at the hearing was still valid as was confirmed by the complainant during evidence. The Respondent also did not dispute this fact its opposing papers. Appellant further submits that the policy states that there must be a bi-annual update of the suppliers list but does not clearly define what bi-annual is. Going by the finding made that it means once every two years, that would mean it was supposed to be a review for the 2021 to 2023 period. In casu, that would mean that he was still within the period to complete the bi-annual review. Appellant submits that under cross examination, the complainant had confirmed this fact and referred to the Supplier listing tracker which was adduced as evidence that he was compiling a list of suppliers for this purpose. That same evidence was not challenged and as such there was no basis for finding him guilty. Appellant submits that he was still within the period as there was no specific dates or months within which he was expected to have completed the task.

On the seventh ground of appeal, Appellant submits that his conviction on the 7th count was not proper. The Hearing Officer correctly accepted the position that the 15 days cycle was unrealistic and that the policy needed amendment fell into error in concluding that the same did not exonerate the Appellant from misconduct. He however further submits that the Respondent, through the complainant, had also admitted that the policy needed a review, a clear indication that the employer had set unrealistic targets incapable of being achieved due to external factors. The parties had agreed that the policy needed a review as it set unrealistic timelines and this was a clear indictment on the Hearing Officer to acquit the Appellant as the task was incapable of being performed. It was Appellant’s contention that the principles used in dealing with wilful disobedience to lawful order must be applied in casu, was on the part of his conduct, the aspect of deliberateness and wilfulness was negated by the fact that the policy in itself was unreasonable and impossible to fulfil. Therefore, he ought not to have been guilty.

On the eighth ground of appeal, the Appellant contends that his conviction on the 9th count was improper. It is Appellant’s submission that the Hearing Officer erred in failing to note that requisitions and purchase orders were automatically generated by the system and as such there was no room for mismatches in quantities. Appellant further submits that the requisition automatically translated into the purchase order the Complainant had also confirmed that indeed the purchase order was automatically generated. On the basis of the admission by the complainant, it is clear that the Respondent was admitting that the process was automated and as such the error ought not to have occurred. The onus was on the complainant to establish how the mismatch had occurred. The Complainant however had failed to discourage the onus.

On the ninth ground of appeal, Appellant contends that his conviction on the 10th count was improper. Appellant submits that it was clear that the reworking of the trunks was due to communication breakdown on the part of the Procurement and Logistics Manager with the supplier. Further, in his view there was nothing more to investigate regarding the reworking of the trunks given the memo of 11 January 2022 explaining the background and effects of the transaction by the Procurement and Logistics Manager. The memo had als been approved by the Executive Director. Appellant therefore contends that the finding by the Hearing Officer that he was guilty for failure to provide oversight on the Procurement and Logistics Manager and for failure to investigate reworking of trunks is therefore without substance. The finding was clearly contrary to the evidence availed.

On the tenth ground of appeal, it was Appellant’s submission that this conviction on count 11 was improper. He submits that the Hearing Officer erred in finding him guilty of the offence as charged despite the confirmation by the Complainant that there was no investigation done to find out if there were suppliers of the sanitizers from Bulawayo and neither were the costs of procuring from Bulawayo assessed. The Appellant further submits that the Hearing Officer went on to relate to his own facts with regards to the quality of the sanitizers which issue was clearly not part of the charge. The Respondent through the charge had only lamented on the transportation costs of the sanitizers not the quality of the sanitizers. The Hearing Officer therefore went outside the scope of the charge. He therefore wrongfully found him guilty. It is also Appellants contention that no concrete evidence was adduced to show that the costs of transportation were avoidable, even during re-examination, the complainant was at pains to come up with a satisfactory answer to the issue.

On the eleventh ground of appeal. The Appellant submits that the penalty of dismissal was improper. It is Appellant’s submission that the Hearing Officer failed to appreciate the mitigating and extenuating factors which were placed before him. Such failure to take into account mitigating factors has been held to be fatal to disciplinary proceedings as was the case in Zimbabwe Alloys Limited v Muchohonyi 2006 (1) ZLR 389. The Appellant further submits that the imposition of a penalty of dismissal was injudicious and unreasonable regard being had to the circumstances of the case. In very comprehensive submissions on mitigation, he …. out made a clear cut case as to why he should not be dismissed from employment, inter alia, the need to have corrective and educational measures taken first regard being had to the contract of employment, the OPHID Human Resources Manual and Section 7 of S.I 15 of 2006. Appellant further submits that the Hearing Officer also failed to pay due regard to his submissions in mitigation with regards especially to his personal circumstance, that he had a clean record with regards to misconduct, that he was a bread winner and had loans to service which were guaranteed against his salary. The Hearing Officer was also supposed to consider the intention of the parties in coming up with a contract of employment which has stages to be followed before termination of contract for performance reasons. Further he had also submitted that the employer’s exercise of discretion in imposing the penalty of dismissal must be measured against the concept of fairness and fair labour standards and practices which are envisaged under Section 65(1) of the Constitution of Zimbabwe, Section 12B(1) and 12B(4) of the Labour Act and the ILO Conventions and Recommendations inter alia Termination of Employment Recommendation 1963 (R119) and the Termination of Employment at the Initiative of the Employer Convention 1982 (C158). It is Appellants prayer that the appeal be allowed with costs.

RESPONDENT’S CASE

On the first ground of appeal, Respondent submits that the Appellant is clearly mistaken in contending that the disciplinary authority ought to have found that the disciplinary proceedings were premature. In terms of clause 4.4 of the employment contract, the employer can terminate for misconduct and also in terms of clause 5 of the contract, the employer can terminate for poor performance. It is Respondent’s further submission that the provision sought to be relied on by the Appellant is only an alternative basis upon which employment can be terminated. The relevant part of the provision of the contract stipulates that,’ Unacceptably low scores at quarterly performance review may lead to a performance disciplinary inquiry and

possible termination of employment.’ Therefore, if the Respondent was dissatisfied with the performance of the employee, the Respondent could conduct a performance disciplinary inquiry and possibly terminate the employment contract. It is also Respondent’s contention that in terms of section 6 (1) of the Labour ( National Employment Code of Conduct) Regulations, S.I 15 of 2006, 19(1), if one intends to bring both an appeal and review, they ought to bring them separately in terms of rule 19(3) and Appellant has not done so. It is also Respondent’s further submission that although, the Disciplinary Authority had not expressly stated, it had tacitly pronounced itself on the issue of whether or not the charges were premature. Respondent backed the position that it was not always necessary for a court to pronounce itself on every issue raised by the parties in argument. Respondent placed reliance on the case of Arafas Mtausi Gwaradzimba v CJ. Petron & Company (Proprietary) Limited SC12/16 wherein the court held that ‘in a case where a number of issues are raised, it was not always incumbent upon the court to deal with each and every issue raised in argument by the parties.’ In the same case referred to, Respondent submitted that the Disciplinary authority did in fact dispose of the issue pertaining to the prematurity of the charges as the court had stated that I am inclined to agree with the Respondent that ‘in proceeding to determine the substantive issue that fell for determination before it, the court must have tacitly accepted that the application was properly before it.’ It is Respondent’s position therefore, had the Disciplinary Authority concluded that the charges were premature, it would not have proceeded to deal with the merits of the charges. It is Respondent’s further submission that it would be wholly inappropriate to vitiate disciplinary proceedings on the basis that a quasi-judicial body such as a Disciplinary Authority did not make specific findings on every argument placed before it as this would violate the principle that labour matters are not to be decided on technicalities.

It is Respondents further submission that the Disciplinary Authority’s powers were only limited to deciding whether the allegations of misconduct were proved or not. The acts of misconduct in casu were largely to do with non-compliance with policies and procedure. This was in fact a violation by the Appellant of his primary duties as set out under clause 1.1 of the OPHID Procurement Policy and Procedures which provides that,

‘It is the primary responsibility of OPHID Finance and Operations Director to ensure compliance with the policies and procedures established in this manual’

and in terms of clause 9.1 (8) of the OPHID Human Resources Manual which states that,

‘Failure to comply with set out policies resulting in cost disallowances, loss of grant income or loss of resources will lead to disciplinary action and possible termination of employment.’

In this case various policies were not complied with resulting in a loss of resources and disallowable costs as seen on page 236 of the record thus the Respondent had every right to charge the Appellant. It is Respondent’s further submission that the termination for poor performance was merely an additional basis upon which the contract could be terminated. It was clear from clause 5.2 of the contract that a failure to meet certain set targets would trigger a corrective action plan and if the action plan did not achieve the desired outcome, the employer was entitled to terminate the contract. However this clearly relates to termination based on a failure to meet targets and has nothing to do with a termination based on misconduct. It is Respondent’s contention that the Appellant seems to miss the obvious point that termination on the basis of misconduct is not always about poor performance as in this case the allegations were not about failing to meet targets hence no corrective action plan was needed further the provisions that the Appellant sought to rely on therefore did not apply.

Respondent submits that in terms of the Appellant’s job description, it was his responsibility to supervise the Human Resources Manager. The fact that no trainings were conducted and that no work books were kept as evidence during the probation was a failure of his function meaning he did not supervise the Human Resources Manager to ensure trainings were done. It means he did not ensure that the Human Resources Policy on training and development was undertaken hence why Appellant was charged on the 2nd count for failing to ensure that new staff underwent training and development. It is Respondent’s contention that the Appellant cannot blow hot and cold as in one breath he argued that when he signed the new contract in 2021 he became a new employee who needed training but when asked under the 2nd count why the new employees were not trained and didn’t have workbooks he argued that it was because they were being rehired and did not need such training and workbooks. The Respondent relied on the authority in the case of Administrator Orange Free State& Other v Makopanele & Another 1990 (3) SA 780 (A) where in the court held that a contracting party who had once approbated could not thereafter reprobate.

It is Respondents further submission that the Appellants first ground of appeal is not properly before the court as it raises a procedural issue and even if it is found that the charges were brought prematurely, it would not result in the acquittal of the Appellant on the merits of the charges. Respondent submitted that Reviews and Appeals are meant to be brought

separately. Reviews are brought in terms of Rule 20 (1) of the Labour Court Rules [Cap 28:01]. whereas appeals are brought in terms of Rule 19 (1) of the Labour Court Rules [Cap 28:01]. It is the Respondents contention that this ground completely lacks merit and must accordingly be dismissed.

On the second ground of appeal, Respondent submits that to succeed in challenging factual findings one must show that the findings are not supported by evidence. In casu, the findings of the Disciplinary Authority were supported by the evidence and the uncontroverted evidence of Sarah on pages 141 to 146 of the record point to the guilt of the Appellant. It was Respondents further submission that the absence of Standard Operating procedures was overwhelmingly exposed during the cross examination of the Appellant as the Appellant could not meaningfully deny his own express acknowledgement of the absence of SOPs on Supplier registration on pg. 219 of the record. Due to the absence of procedures, procurement officials like Wisdom and Beaulah had taken advantage and engaged in fraudulent activities. The Respondent further submitted that the Appellant could not meaningfully deny his own express acknowledgement of the absence of SOP on Vendor Management and on securing goods received and due to these failures, 24 phones had been stolen from the storeroom. In light of such evidence, it is Respondents contention that there can be no basis whatsoever of interfering with the findings by the Disciplinary Authority.

On the third ground of appeal, Respondent contends that the findings by the Disciplinary Authority that the Appellant had failed his supervisory role of ensuring the new staff underwent training and development were supported by evidence and could not therefore be faulted. This was supported by the evidence of Sarah on pages 138 to 140 of the record. It is Respondents submission that the Appellant accepted in cross examination that there was no evidence that the new employees had undergone training and development as well as that he had not checked if his subordinate had fulfilled her obligation to prepare and have workbooks for the new employees as evidence of their training. He had accepted that he did not know whether the trainings had been done or not and that he had not supervised his subordinates through reviews and spot checks. He himself had not undergone training and development yet it was his primary responsibility to ensure that such policy was complied with. It is Respondent’s further contention that by the Appellant’s own testimony, the charge was proved hence there is no basis upon which the findings of the Disciplinary Authority can be interfered with accordingly this ground must fail.

On the fourth ground of appeal, Respondent submits that the Disciplinary Authority’s finding that the Appellant had failed in his duties by neglecting to hold mandatory monthly departmental meetings is supported by evidence and cannot be faulted. During Sarah’s cross examination, her evidence was not challenged as shown on pages 149 to 151 of the records. It is Respondents further submission that more significantly, the Appellant in cross-examination could not meaningfully dispute his failings. The Appellants defence was that the TOR which he developed for the procurement department providing for monthly meetings was only a draft awaiting approval, this defence was torn to pieces in cross examination as Appellant failed to show when he sought approval. He also could not meaningfully dispute that no such approval was required as there was no other TOR template which had obtained such approval. It is Respondent’s contention that this ground accordingly must fail.

On the fifth ground of appeal, Respondent submits that the Disciplinary Authority rightfully found that the Appellant had failed in his duties by neglecting to conduct quarterly reviews and spot checks in respect of his subordinates. The Appellant failed to meaningfully dispute these allegations as it was an express term of his conditions of employment that he ought to have conducted quarterly reviews. He did not conduct any such reviews thus violating an express term of his contract. It is Respondent’s submission that the Appellant had no defence save to say he had not done the reviews because the subordinates did not submit to him their self-assessments. As a supervisor he failed to make them account for their omissions. It is also Respondents contention that Appellant violated the express condition that he was to conduct monthly spot checks on his subordinates which would be recorded and filed. The Appellant did not dispute his failure to conduct quarterly reviews meaning he admitted to such misconduct. It is Respondent’s position that in light of such admitted acts of misconduct, the court has no basis to interfere with the Disciplinary Authority’s findings hence this ground must accordingly fail.

On the sixth ground of Appeal, Respondent contends that the Disciplinary Authority rightfully found that the Appellant had failed his duties by neglecting to undertake Supplier valuation and to establish an approved suppliers list. The Respondent submits that it is common cause that apart from the requirement to establish a 5-year approved suppliers list, there was a requirement to do a bi-annual review or valuation of suppliers, the process of which was commenced in 2021 but was never completed. Adverts were done and suppliers responded but the review was never done. It is Respondent’s further submission that in the end the Appellant failed to establish that such supplier evaluation was ever conducted in terms of the standing

policy as seen on pages 228 to 233 of the record. It was therefore proved that there was no supplier valuation for the relevant period 2021 to 2022 and in terms of clause 1.1 of the procurement policy it was the Appellant’s primary responsibility to ensure that there was compliance with the procurement policy. It is Respondent’s final submission that Appellant failed in that responsibility and therefore this ground of appeal must fall accordingly.

On the seventh ground of appeal, Respondent submits that the Disciplinary Authority correctly found that the Appellant had failed his duties by failing to ensure that there was adherence to the 15-day procurement cycle. It is common cause that there was a 15 day turn around procurement cycle. Respondent submits that it was not in dispute that there were several instances where the turnaround cycle was not adhered to, including the procurement of trunks, cooler boxes and trailers, some even taking up to 7 months. Further, in submission Respondent contends that the Appellants single defence was that some procurements would take longer and that the turn around period was unrealistic. This clearly was not a defence but merely an admission that there was a breach of a standing policy. The Appellant had failed to fulfil his contractual obligation to ensure compliance with policies and procedures thus the decision of the Disciplinary Authority cannot be faulted.

On the eighth ground of appeal, Respondent submits that the Disciplinary Authority was correct in finding that the Appellant acted contrary to his duties by approving the purchase of 36 cooler boxes when only 20 had been requested. It is not in dispute that the Appellant approved the purchase of morecooler boxes than were required. It is also not in dispute that the excess purchase resulted from a breach of procedure by the Procurement and Logistics Manager who self-reviewed her own work. Despite this self-review, by his junior Appellant still went on to approve the purchase. It is Respondent’s further submission that the excess purchase caused the Respondent financial prejudice. Even after discovering the excess purchase and policy breach Respondent contends the Appellant still failed to carry out disciplinary action against the Procurement and Logistics Manager for failing to protect the Respondent’s interests. Respondent contends there is therefore no basis for interfering with the finding by the Disciplinary Authority.

On the ninth ground of appeal, the Respondent submits that the Disciplinary Authority was correct in finding that the Appellant had neglected his duties by failing to provide oversight over the procurement of trunks. It was not in dispute that the sample of trunks was rejected by the user department and the rejection had been communicated to the Procurement and Logistics Manager who did not inform the supplier of the rejection. This resulted in the supplier

manufacturing and supplying the rejected trunks which were not fit for purpose leading to the Respondent incurring unnecessary costs. It is Respondent’s further submission that the reworking of the trunks caused financial prejudice to the organization. In light of the clear wrongdoing by the Procurement and Logistics Manager, the Appellant had failed to take disciplinary action in order to bring the employee to accountability. Despite the clear loss to the Respondent, the Appellant felt no need to inquire into why the Procurement Manager had been so negligent which was an indication that clearly the Appellant failed to protect the interests of the Respondent as his employer. The Respondent contends that this ground of appeal must accordingly fail.

On the tenth ground of appeal, it is Respondent’s submission that the Disciplinary Authority correctly found that the Appellant neglected his duties by failing to manage the procurement of sanitizers. The Respondent submits that it was not in dispute that sub-standard sanitizers were procured. After they were delivered it was discovered that they were not fit for purpose however by then many costs had been incurred including transportation costs. The Appellant had accepted that they had not done any cost assessment before procuring the sanitizers and transporting them. This was a clear breach of an existing policy. Respondent further submits that the Disciplinary Authority finding on this was supported by the undisputed evidence led. As such the ground of appeal ought to fail. Looked at from all angles, it cannot be said the findings by the Disciplinary Authority were irrational or outrageous in their defiance of logic that no reasonable person applying their minds to the question to be decided would have arrived at such a conclusion. Therefore, in all the circumstances of the matter Appellant has not established any basis upon which the court can interfere with the primary court’s findings of fact.

On the eleventh ground of appeal, Respondent submits that the Disciplinary Authority did not err in imposing a penalty of dismissal. It is Respondent’s contention that the Appellant has not shown that the disciplinary authority exercised its discretion improperly when it imposed the punishment as is the position in Murawo v Grain Marketting Board SC27/09. In deciding the penalty, the Disciplinary Authority took into account all relevant considerations including the Appellants disciplinary record, personal circumstances, and length of service as seen in pages 6 to 10 of the record. It is Respondent’s contention that the court determined that the mitigatory factors were far outweighed by the aggravating factors and reliance was placed on the case of ZB Financial Holdings v Maureen Manyarara SC 2/21 where the court held that even where mitigation factors are taken into account, this would not necessarily assist an

employee where the employer considers the misconduct as one that is so serious as to go to the root of the contract of employment. Respondent further contends that the Appellant does not deny that the offences he was found guilty of were very serious neither does he deny that they go to the root of the contract of employment and therefore constitute dismissible offences. The Appellant failed the most important function of his contract which is to protect the Respondent’s interests. Even the financial losses suffered by the employer as a result of the various breaches of policies and procedures did not galvanize the Appellant into any action. He trivialized the losses suffered by the Respondent as seen on pages 236-237 and 240 of the record. It is Respondent’s final submission that as stated in Geza v ZFC 1998 (1) ZLR 137 (SC), appeal courts should not lightly alter penalties of dismissal without showing that there was gross unreasonableness, malafides or capriciousness. There is therefore no basis for the court to interfere with the conviction and penalty imposed. Accordingly the appeal being totally devoid of merit must be dismissed with costs.

EVALUATION

The principle of law established is that an appellate tribunal can interfere with the decision of a lower tribunal only in instances of gross misdirection. The principle was set in Barros and Another vs Chimpondah 1999 (1) ZLR 58(S) which the court was aptly referred to by the Respondent. Gubbay CJ at 62G – 63A stated as follows;

“These grounds are firmly entrenched. It is not enough that the Appellant considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration then its determination should be reviewed and the appellate court may exercise its discretion in substitution provided always it has the material for so doing. In short this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

I will proceed to determine the grounds of appeal each in turn.

On the first ground of appeal the Appellant contends that the disciplinary authority ought to have found that the disciplinary proceedings were premature. He argues that in terms of the contract of employment disciplinary proceedings against an employee for poor performance

the proceedings could only be commenced after specified reviews and corrective measures were done. These however had not been done in his case. The Hearing Officer fell into error in failing to make a finding on this point. The Respondent has a procedural point that this ground is not an appeal ground and if the Appellant intend to bring both appeal and review he ought to have done so by utilising Rule 19 (3) of the Labour Court Rules, 2017.

It is the court’s finding in respect of the procedural challenge that the ground of appeal is a ground for review, that the point is meritless. The ground is indeed a ground of appeal premised on the error by the Hearing Officer to make a finding on an issue that had been clearly placed before him by the Appellant in Paragraph 3 of his defence outline. It was the defence of the Appellant that the charge should not have been raised in the first place. This was raised against the background of charges levelled against him which were largely based on his purported failure to comply with policies and procedures outlined in the contract of employment as well as the Human Resources Manual. The Respondent in counter to the appellant had argued that whilst there was indeed provision made for the specified reviews on performance, the contract of employment also clearly provided in clauses 4.4 and 5 for termination on the basis of poor performance. There is no doubt that the point raised by the Appellant was a very crucial point. It was the point that was meant to either propel or kill his case.

It is indeed the position at law that a failure to make a finding on issues raised in proceedings is fatal to proceedings. It has the effect of vitiating proceedings. The court was aptly referred by the Appellant to Gwaradzimba vs C. J. Petron & Company (Proprietary) Limited SC 121/16 where it was stated as follows;

“The position is settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed the failure to resolve the dispute or give reasons for a determination is a misdirection one that vitiates the order given at the end of trial – Charles Kazingizi vs Revesai Dzinoruma HH 106/2006; Muchapondwa vs Madake & Ors Judgement No. SC 12/2016 Civil Appeal No SC 187/14: GMB vs Muchero 2008 (1) ZLR 216, 221 C-D (S).”

The court’s finding on this ground is that the Hearing Officer committed a gross error/misdirection in failing to determine this crucial point. In his determination of this point

the Hearing Officer would have needed to interpret the provisions of the contract of employment to establish under what circumstances the employer could opt to conduct a “performance disciplinary inquiry” or a “misconduct disciplinary inquiry” as both were clearly provided for in the contract of employment. He would thereafter be in a position whether it was correct for the Respondent to have foregone the performance disciplinary enquiry and proceeded on the basis of misconduct inquiry. The bottom line is that the Hearing Officer ought to have determined the issue to whether the charges were prematurely laid or not in view of the provisions of contract.

The Respondent has urged the court to infer that by proceeding to level the charges the Hearing Officer had found the point raised by Appellant as meritless. The court does not accept that reason. Given the nature of the point raised by appellant being one capable of disposing of the matter without going to the charges, it was clearly not an issue that the Hearing Officer could afford to overlook. In other words he could not proceed to determine the substantive question of whether the Appellant was guilty of the various acts of misconduct without having determined firstly whether the Respondent could proceed to charge with acts of misconduct against the provisions of the contract of employment and the Human Resources Manual. That was more especially as the charges outlined were to do with non-compliance with policies and procedures an aspect which could also have been addressed by other specified reviews and corrective measures.

Having arrived at the position the court finds that the Hearing Officer indeed grossly erred/misdirected himself. On this basis the first ground of appeal and indeed the whole appeal must succeed. The proceedings in part and the determination by the Hearing officer have to be set aside. The matter has to be remitted to the Hearing Officer for him to determine that first point as raised by the Appellant. The Appellant shall revert to his status quo ante. It shall not be necessary for the court to address the rest of the grounds which grounds are premised on the specific counts levelled against the Appellant and the penalty.

In the result the court hands down an order in the following terms:

The appeal be and is hereby allowed with costs.

The proceedings in part and the determination by the Hearing Officer dated 12 August, 2022 be and are hereby set aside.

The matter is remitted to the Hearing Officer for him to determine the point as taken as to whether the disciplinary proceedings were prematurely undertaken in view of the provisions of the contract of employment.

The hearing in that event shall be reconvened within 30 days of the date of this order.

The Appellant shall revert to his status quo ante i.e. on suspension with full benefits.