Ruth Musarurwa v Dairiboard Zimbabwe

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/09/2013
HELD AT HARARE ON 24 JULY, 2012               CASE NO. LC/ H/138/2008
In the matter between




RUTH MUSARURWA                                        –         Appellant
And

DAIRIBOARD ZIMBABWE                                   –         Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - A. Marara (Legal Practitioner)
For Respondent     - P. Nyeperayi (Legal Practitioner)




MATANDA-MOYO, L.

      This is an appeal against the decision by Respondent’s Group Chief

Executive confirming the dismissal of Appellant from employment. The brief

facts are that Appellant was at the time of the dismissal employed by the

Respondent as an export Manager but assigned to Respondent’s subsidiary in

Malawi as its Managing Director. Appellant was charged and found guilty of the

following;



      1. Contravening section 29.21 of Respondent’s code (falsification) in that

         she presented inaccurate financial results for the year 2007.

      2. Contravening section 29.21 of the code in that she failed to supply

         trade debtors’ information to the Board at its July 2007 meetings. Such

         information had a bearing on company profits.
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      3. Contravening section 29.4 of the code (neglect of duty/responsibility)

         in that Appellant failed to authorize the accountant to make provisions

         in respect of stock variances and doubtful debtors.

      4. Contravening section 29.4 of the code (gross neglect of duty) or

         alternatively contravening section 29.5) of the code in that Appellant

         failed to enforce discipline within her department. She also failed to

         supervise staff and to ensure that periodic stock takes were done

         timeously especially at a time         Respondent was     experiencing

         substantial losses of raw and finished goods.

      5. Contravening section 29.4 (neglect of duty/responsibility) in that

         Appellant failed to effectively make use of the corporate governance

         checklist to uncover actual and potential risks to business and to

         enforce controls.

      6. Contravening section 29.4 of the code (neglect of duty/responsibility)

         in that she led a division where systems and procedures were flouted

         thus putting the company at grave risk.

      7. Contravening section 29.4 of the code in failing to manage margins to

         an extent that materially affected the profitability of the company and

      8. Contravening section 29.17 (absence without leave/absenteeism or

         desertion) in that Appellant absented herself from duty from 1 March

         2008.



Appellant’s grounds of appeal are as follows;



      1. That the Appellant was penalized twice for the same offence. After the

         Group Chief Executive Officer terminated Appellant’s contract of

         assignment on 16 January 2008 due to misconducts arising from
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           Appellant’s contract of assignment in Malawi, it was improper for

           Respondent to revisit the misconducts. Termination of the contract of

           assignment was effective punishment on its own.

        2. The Group Chief Executive Officer erred when he subsequently

           preferred charges against appellant emanating from the contract of

           assignment when he had become functus officio.

        3. The Respondent erred in failing to observe the principles of natural

           justice by failing to furnish Appellant with documentary evidence and

           witnesses statements and

        4. That the Appeal hearing Officer misdirected himself in finding that

           Appellant willfully absconded from work without leave or reason.



Appellant prayed for the setting aside of Respondent’s decision plus costs of

suit.



        Firstly Appellant submitted that she was penalized twice for the same

offence. Appellant submitted that she had been penalized for the misconducts

arising out of the contract of assignment by termination of such contract. The

basis for the termination of the contract of assignment were the Malawi

misconducts. When the Group Chief Executive Officer preferred misconduct

charges 1to 7, it amounted to double prejudice. Appellant had already been

penalized for those offences.



        Respondent on the other hand argued that, Appellant was not penalized

twice for the same offence. The termination of the contract of assignment was

done administratively.      Appellant was subjected to a single disciplinary

proceeding for offences committed in Malawi.
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      Appellant argued strongly that she had two contracts with Respondent,

firstly her contract of employment and secondly the contract of assignment.

Whilst I do accept the argument by the Appellant, I do not agree that in the

case of Dairiboard v Muyambi 2002(1) ZLR448(S) the court held that these two

contracts are not inter-connected. The court did not make a ruling that one’s

contract of employment could not be terminated based on acts of misconduct

committed whilst on a contract of assignment. In that case the employer had

terminated the contract of assignment without terminating the contract of

employment.    The court held that the employee remained the employee of

Dairiboard based on the contract of employment which had not been

terminated by the employer. That was the reason why the court emphasized

the fact that the contract of assignment was separate to the contract of

employment.    In the present case both contracts were terminated.        Having

clarified the above it is competent for an employer to terminate a contract of

employment based on misconducts carried out on a contract of assignment.

However in doing so the dictates of law ought to be observed.



       Page 199 of the record is the letter of termination of the contract of

assignment. From the letter it is clear that the contract of assignment was

terminated after formal discussions between Appellant and Respondent on the

non performance of the Malawi subsidiary. The parties agreed on a one month

notice for termination of the contract of assignment.         The contract was

terminated due to failure to perform on the part of the Appellant. It was not

terminated due to acts of misconduct. From the 17 th of February 2008 Appellant

had reverted to her original contract of employment.         From the evidence

available it was only after the termination of the contract of assignment that the
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audit report for the period Appellant was in Malawi came out and that a decision

was taken to prefer misconduct proceedings. I do not agree with Appellant’s

submissions that such misconducts had already been dealt with. The only issue

that had been canvassed administratively was the issue of non-performance by

the Malawi subsidiary.



      Having observed that the misconducts charges were preferred after the

termination of the contract of assignment, the next issue for determination is

whether it was lawful for Respondent to do so. In other words was it competent

for Respondent to prefer charges on acts of misconduct committed during the

subsistence of a contract of assignment.        Appellant argued that once the

contract of assignment was terminated, she could not be charged on acts of

misconduct committed whilst the contract subsisted Appellant argued that the

contract of assignment had rights and obligations which were independent

from the contract of employment. However a careful reading of the contracts

shows that when Appellant was assigned to Malawi she remained an employee

of Dairiboard.         In other words the primary contract was the contract of

employment.         It was the contract of employment which gave birth to the

contract of assignment. The contract of assignment was a secondary one which

found basis on the contract of employment.         Whilst Appellant remained an

employee of Dairiboard she was on 2 January 2007 assigned as Managing

Director – Dairiboard Malawi. On page 171 of employment it is written;


      “CONTRACT OF ASSIGNMENT
      Made and entered into by and between DAIRIBOARD HOLDINGS LIMITED


      -----------------------------------
      And
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      MUCHANETA .R. MUSARURWA
      ------------------------------------
      Whereas the incumbent is employed by Dairiboard Holdings Limited as Exports Manager and
      whereas she accepts assignment to and as Managing Director of Dairiboard Malawi-------“



      Appellant never ceased to be an employee of Dairiboard. To such extend

the contract of assignment was interconnected to the contract of employment.

If the above is true then it is also true that Appellant could still be charged under

the main contract for or offences committed whilst on a contract of assignment

Appellant remained governed under Respondent’s code of conduct. I therefore

do not find fault in the manner in which proceedings were held.



      It is my finding therefore that Appellant was not punished twice for the

same offence and that Respondent had a right to prefer misconduct charge for

acts committed in Malawi. Section 124 of the Labour Act is clearly not applicable

in this matter as Appellant was never subjected to multiple proceedings.



      Appellant also complained that she was denied sufficient evident to

adequately prepare for the hearing. Appellant submitted that she was not given

a copy of the code and hence was prejudiced at the hearing when she learnt

that she could not be legally represented. Even if that is true the remedy lied

then. Appellant could have applied for a postponement in order to prepare her

case. Instead she abandoned the proceedings. By so doing Appellant waived

her rights to defend herself and cannot be heard to complain now.                        I am

satisfied that Appellant abandoned the proceedings on her own accord and

Respondent acted within its rights by continuing with the case.




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      Appellant also challenged her conviction on the charge of willfully

absconding from employment without leave. I agree with the Appellant’s

submissions in this regard. When Appellant initially reported for work she was

advised to stop reporting to work as disciplinary measures were going to be

taken against her. (see letter on page 201 of the record). Respondent’s actions

prevented Appellant from doing any duties. There is no evidence that Appellant

was given an office nor any evidence of the duties she was to carry out. On 26

March 2008 a meeting was held between Respondent and Appellant.

Respondent at all times was aware of the whereabouts of Appellant.



      The conviction on absenteeism can therefore not stand and is set aside.

Appellant absconded from work with a reason.



      However Appellant admitted to the other seven acts of misconduct. She

never challenged those convictions. She only believed that Respondent had no

right to prefer those misconduct charges. Since those seven are not disputed,

they stand admitted. Appellant rightly did not challenge the penalty of dismissal

on the other charges. Save for the eighth count the court hereby uphold the

dismissal on the seven counts.



      Accordingly the appeal is dismissed with no order as to costs.




Matsikidze and Mucheche Legal Practitioners– Appellant’s Legal Practitioners

Costa Madzonga Legal Practitioners- Respondent’s Legal Practitioners




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