Stern Mukaro v African Distillers (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/195/24
CASE NO. LC/H/978/23
HELD AT HARARE 7 MARCH 2024
AND 29 APRIL 2024
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OFN ZIMBABWE
JUDGMENT NO. LC/H/195/24
CASE NO. LC/H/978/23

HELD AT HARARE 7 MARCH 2024

AND 29 APRIL 2024

IN THE MATTER BETWEEN:-

STERN MUKARO
APPELLANT

AND

AFRICAN DISTILLERS (PRIVATE) LIMITED
RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant
Mr. W. Kamusasa

For Respondent
Mr. K. Ncube

MURASI J.,

BACKGROUND FACTS

This is an appeal against the decision of the appeals officer dated 6 November 2023 wherein the appellant was found guilty and dismissed from employment. Appellant was employed as an Engineering Stores Clerk by the respondent and was responsible for sourcing materials required by the employer from suppliers. He was essentially the go between the respondent and the suppliers. The appellant through his position could source quotations from different suppliers and choose the most convenient. He was charged for contravening section 11.4.7 (c) of the AFDIS Code of Conduct which is ‘any act or attempted act of dishonesty against the company, or its customers or its suppliers or other stakeholders, whether a criminal conviction is pursued or not’. It is alleged that the appellant was charged with securing quotations for the prices of cement from three different companies but instead only used one company known as Chimera Solutions which gave him three different quotations which were inflated by at least 360%. It was also the Respondent’s averment that the Appellant had not used the 2015 price guidelines which he was supposed to utilize during the course of these duties. It was also Respondent’s case that Appellant only forwarded one quotation instead of the required three. The appellant argues that this was not intentional and raises the following grounds of appeal:

1. The Appeals officer erred grossly by confirming that the appellant was guilty of contravening section 11.4.7 of the respondent’s Code of Conduct (an act or attempted act of dishonesty against the company) in the absence of compelling evidence on record to show that the appellant deliberately and intentionally prepared requisitions with extremely inflated figures for approval by management.

2. The appeals officer erred by failing to appreciate that the elements of the offence of dishonesty such as intention and knowledge were not proved on a balance of probabilities before the disciplinary committee to warrant a conviction.

3. The appeals officer erred in fact and in law by failing to conclude that the purported minutes of the disciplinary committee hearing provided by the respondent were distorted and that the same did not have the status of a true record.

4. The appeals officer erred in law by concluding that the dismissal of the appellant had been effected in accordance with the law and thus could not be termed fair.

5. The appeals officer erred in failing to appreciate that the penalty of dismissal imposed by the disciplinary committee was unduly harsh, excessive and disproportional to the offence committed.

**SUBMISSIONS BY THE PARTIES**

In submissions, *Mr. Kamusasa* stated that the gist of the appeal was that the elements of the charge were not proved on a balance of probabilities. He also stated that there was a dispute as regards the minutes of the proceedings before the disciplinary committee. He submitted that Appellant had only obtained one quotation as he was dealing with an emergency and that he had relied on the quotation he had received. *Mr. Kamusasa* further submitted that Appellant had later realized that the quotation was inflated. In this regard, it was argued that the elements of the charge had not been proved as it was not shown that the Appellant knew that the prices had been inflated. It was further argued that the Appellant had omitted to cross check when he received the quotation.

It was also submitted that it was the normal procedure for the Appellant to get three quotations. *Mr. Kamusasa* argued that as this was an emergency and an urgent procurement had to be made, Appellant had then requested the same company to supply the three quotations as he also wanted assistance in this regard. It was further submitted that the element of deliberateness was absent and that it was not possible to infer that Appellant was intending to defraud the company. The Court had time and again to remind *Mr. Kamusasa* to deal with issues arising from the findings of the Appeals Officer as he seemed to ignore these and dwell on the reasoning of the disciplinary committee. It was argued in respect of the third ground of appeal that the finding of the Appeals Officer was incorrect. AS far as the penalty was concerned, it was submitted that the Appeals Officer had failed to appreciate that the penalty imposed on the Appellant was unduly harsh and had to be interfered with.

In response, *Mr. Ncube* stated that he would abide by the documents and heads of argument filed on behalf of the Respondent. He submitted that it was not in dispute that Appellant had emailed one supplier to supply three quotations and that the supplier had given an inflated quotation. It was argued that Appellant had not shown how the Appeals Officer had misdirected himself given the facts of the matter.

As far as the ground of appeal in respect of the minutes of the disciplinary committee were concerned, *Mr. Ncube* stated that what had been submitted by the Appellant was incorrect. He stated that it had been a fact that Appellant had disputed the issue from the outset and the Appeals Officer had called in a witness to clarify the position. The Appellant only relied on the fact that the Complaint “was about to admit” which was not a factual position as the Complainant had not done so and the finding made by the Appeals Officer in this regard was correct.

*Mr. Ncube* submitted that the issue of the penalty was within the discretion of the employer and that the Appellant was supposed to demonstrate how the penalty was harsh. He also stated that the Appeals Officer had pointed to the issue of potential harm and that the Appellant had not demonstrated the irrationality of the penalty in the circumstances.

**ANALYSIS**

It is pertinent that I address the issue of some of the grounds of appeal before delving into the determination of the matter. The second ground of appeal reads as follows:

“The Appeals Officer grossly erred in law by concluding that the Appellant was properly charged in circumstances where the facts of the case clearly suggest otherwise.”

The first that arises, as pointed out by the Respondent, is that the issue was not brought before the Appeals Officer for determination. It is trite that an appellate court cannot proceed to determine an issue that was not placed before the court a quo. The second issue relates to the construction of the ground of appeal. It is not concise and precise. It does not bring out what is that the Appeals officer is guilty of doing or not doing. In **R v Emerson 1957 R & N 743 (SR)** (quoted in **Dr. Nobert Kunonga v The Church of the Province of Central Africa SC 25/17), BEADLE J (as he then was) had this to say:**

“I do not consider that such general grounds of appeal as ‘the conviction is against the weight of the evidence’ or ‘the evidence does not support the conviction’ or ‘the conviction is wrong in law’ are a compliance with the rule. It follows that where the only ground of appeal given in the notice of appeal is a vague one of this description the notice of appeal must be considered to be bad. The effect would thus be the same as if no notice of appeal had been given at all.”

It has been held that grounds of appeal are bad if they are couched so vaguely as to be of no value to the Court or the respondent. It is the correct position of the law that grounds of appeal must indicate why a finding of fact of law is said to be wrong. The ground of appeal must allege that the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary, or because it is inconsistent with the oral evidence of one or more witnesses or that it is against the probabilities. The present ground of appeal does not satisfy any of those requirements. It should accordingly be struck out.

Both parties refer to the relevant case law in respect of the discretion of the appellate court when dealing with the factual findings of the tribunal a quo. For an appellate court to interfere with those findings, it must be clear that the findings complained of are so outrageous in their defiance of logic of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such at such a conclusion. (See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), Nyoni v Secretary for Public Service, Labour and Social Welfare & Anor 1997 (2) ZLR 516 (H)).

I will first deal with the third ground of appeal which concerns the issue of the minutes of the disciplinary committee. The Appeals Officer made the following findings:

“I also wonder what could have happened had you presented your own set of minutes which you did not do in this case. However, listening to your conversation with Mr. Mushonga whom I called in specifically to verify your submissions, I am persuaded to believe that the information provided in the minutes was indeed correct given the merits and weight of the case, which are are so strong that they cannot be ignored. The question to interrogate in light of your claim is, why would the complainant admit that there was no connivance to the extent of wanting to drop charges in the presence of such glaring evidence as in the email communication and non-adherence to company protocols by yourselves? As such turning a blind eye to the merits of the case would be tantamount to travesty of justice.”

Elsewhere in this judgment I referred to the fact that the Court had to remind the Appellant’s legal practitioner to address the findings of the Appeals Officer. This was not done in respect of this ground of appeal. The findings remained unscathed. The Appeals Officer related to factual issues that he had indeed called a person who had been present during the proceedings of the disciplinary committee to ascertain the veracity of Appellant’s complaints. He largely found that the minutes were a correct record. He also made a find that Appellant had been called upon twice to make corrections. Can it be said that these findings by the Appeals Officer were irrational inn the circumstances? I think not. The ground of appeal ought to be dismissed.

The first ground of appeal avers that the ‘alleged improper conduct does not meet the elements of the charge of dishonesty’. JOFFE JA had this to say in **Hoechst (Pty) Ltd v Chemical Workers Industrial Union & Another** (1993) 14 ILJ 1449 (LAC):

“This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s work-force, the position which the employer occupies in the market-place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the work-force as a whole, as well as on the relationship between the employer and employee and the capacity of the employee to perform his job. At the end of the enquiry what would have to be determined is if the employee’s misconduct had the effect of destroying or of seriously damaging the relationship of employer and employee between the parties.”

How did the Appeals Officer deal with this issue? The following are his findings:

“It is undeniably true that you were the point person between Afdis and the suppliers. Acting in that position would require diligence, trustworthiness, straightforwardness, honesty and integrity, just to mention but a few of the fundamental behavioural traits. You were the face of the organization to suppliers and the organization had given you the trust in dealing with suppliers in particular price comparisons. Vested with the above authority, there is no reason why the procurement channel would not have trusted your work. A 2015 price guideline was also shared with you to augment your comparison knowledge and ability.”

Clearly the above cited findings align with the decision in the **Hoechst case** cited above. The Appeals Officer clearly outlined Appellant’s duties and what the Respondent expected from him. The Appeals Officer went on to make the following findings as regards Appellant’s culpability as regards the transaction itself:


“I also find no fault in the following evidence of dishonesty issued on the email that you personally authored to Chimera Solutions requesting the supplier to find 3 other quotations for you and I quote ‘Find attached inquiry as per discussion please provide 3 quotes, regards, Stern’. Unless you were out of your mind, I certainly do not have any kind words for such an act of dishonesty which is matched word for word by Black’s law dictionary meaning that you provided during the oral hearing. No man in his rightful sense would be persuaded to think that you were acting without full consent and knowledge when you requested, received a quotation and went on to raise an order for Chimera Solutions. The act shows that you were acting with full knowledge. The word ‘as discussed’ in our email shows that you were alive and in control of what you were doing. The coordination of events from engaging in the previous discussion to writing a reminder email and raising the order is full proof of an individual who is alive to what he was doing.”

The above analysis by the Appeals Officer needs no further explanation. It must be pointed out that the facts are indeed common cause. The Appellant does not deny that he is the author of the email which began with the words ‘as discussed’. Appellant does not deny that he requested 3 quotations from the same company. He does not deny that this was unprocedural. Appellant does not deny that he proceeded to raise an order on the basis of the quotations. Appellant does not deny that he only attached one quotation instead of the three required in terms of the standard operating procedures. Appellant does not deny that he did not compare the prices with those on the 2015 guidelines he was provided with. Appellant does not deny that this quotation was then found to have prices inflated by over 360%. As pointed out elsewhere in this judgment, Appellant’s legal practitioner did not address these findings. I am of the view that it might not have been possible to controvert what was common cause in the circumstances. I find no irrationality or misdirection on the part of the Appeals Officer. The ground of appeal ought to be dismissed.

I will deal with the fourth and fifth grounds of appeal as one. In *Giwasa & Anor v V.M. Construction* (1985) 9 BLLR 99 (C), it was held as follows:
 “In deciding whether dismissal was the appropriate sanction to apply in a given situation the test mist often applied is whether the conduct of the employee has had the result that the employment relationship is seriously damaged or destroyed and/or whether its continuation is possible or tolerable for the employer.”

It has been argued for the Appellant that that there was no prejudice to the Respondent and that the mitigatory features were not adequately taken into account. The issue of prejudice has been dealt with in many a precedent where it has been stated that the issue of value is not the major issue to be considered. The issue to be resolved is whether the misconduct went to the root of the employment contract so as to render the employer/employee relationship unworkable. Precedent has also stipulated that in such circumstances it is up to the employee to demonstrate that the misconduct was so trivial that the penalty of dismissal was irrational. The common cause facts have already been referred to. Appellant did the ‘unprocedural’ act of requesting one company to issue 3 quotations. Appellant also acted on the quotations provided by this company ‘unprocedurally’. The order contained prices above the normal prices by 360%. Appellant did not refer to the 2015 price guideline provided by the employer. Would it be unreasonable for an employer to show an employee the door in the circumstances? I think not. The grounds of appeal should be dismissed.

In the result, the appeal is accordingly dismissed with no order as to costs.

Lunga Mazikana Attorneys- Appellant’s legal practitioners

Gill, Godlonton & Gerrans- Respondent’s legal practitioners
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