Tapera Musiwarwo v TM Supermarkets (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/195/2020
HARARE, 6 APRIL 2020
CASE NO. LC/H/132/19
AND 28 AUGUST 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/195/2020

HARARE, 6 APRIL 2020 					CASE NO. LC/H/132/19

AND 28 AUGUST 2020

In the matter between:

TAPERA MUSIWARWO						APPELLANT

versus

TM SUPERMARKETS (PVT) LTD				RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr T. Zishiri (Trade Unionist)

For the Respondent			Ms M. Chinyangara - Kaseke (Legal Practitioner)

MAKAMURE J:

The appellant was charged for violating paragraph 4 (f) of the National Code of Conduct Statutory Instrument 15/2006 (S.I. 15/06).

Paragraph 4 (f) of S. I. 15/06 provides that:

“4.	An employee commits a serious misconduct if he or she commits any of the following (a) to (e), g, h …

(f)	gross incompetency or inefficiency in the performance of his or her work.”

Disciplinary proceedings were conducted against him. He was convicted. He was penalized as follows and I quote:

“Considering information contained in the hearing proceedings and mitigation that you have given, you are being issued with a final written warning valid for 12 months from date of this letter. Should you commit any other offense during the validity of this final written warning, more severe disciplinary action will be taken against you including dismissal. Further to this warning, your benefits will now be aligned to that of Assistant Manager grade meaning that you will no longer receive a Motor Vehicle allowance which is a branch Manager benefit. We also reserve the right to recover payment of $10 000-00 from you, should the claim by Chipo Mudereri for the $10 000-00 price money be successful. This will be by way of deduction from your salary.”

He was aggrieved by both the conviction and penalty. He appealed to this court on eight grounds. He then engaged the services of a legal practitioner. Mr Gwisai who appeared on his behalf summarized the grounds and came up with three main grounds. These are that firstly grounds 1, 2 and 3 deal with issues of evidence. Secondly ground five deals with the issue of the ultimate result that is the fact that there was one and not two winners. Thirdly, there is the issue of penalty. Essentially the submission on penalty is that the manner in which the appellant was penalized amounts to double jeopardy. Ground four was abandoned.

When the matter was heard before the Disciplinary Authority the complaint summarised the facts as captured in the outline of the case (p 34 of the record) as follows and I quote:

“It is alleged that while Mr T. Musiwarwo (being assisted by Mr Makuzva and Auditor) was in charge of conducting a draw to pick a winner of Bargain Bonanza Promotion Competition for 2017; made an error and disqualified a winner, Chipo Mudereri, whose coupon had been picked/drawn and qualified for the prize. He then went on to pick up and draw another coupon for Florence Kusema, verified every process and announced her as the winner for the $10 000-00 prize. Because both coupons satisfied the criteria for winning the price. The branch ended up with two winners each for $10 000-00. The branch obligation then came to $20 000-00 prejudicing the company of $10 000-00. As a result of that Mr T. Musiwariro is charged under section 4 (f) of S. I. 2006.”

Evidence which was led showed that Chipo Mudereri was properly considered and then later as the facts show disqualified. This was done with concurrence of members of the panel. Another ticket was picked, making this a second choice after having disqualified the first ticket belonging to one Mudereri. The (second) ticket belonging to Florence Kusema was then authenticated by the panel. At all times the appellant led the panel. What comes out clearly is that what the appellant did was not done individually. However, he was the person in charge of the responsible team.

During the disciplinary proceedings the appellant pleaded genuine error. He also brought in the issues concerning poor eyesight and fatigue and the fact that he was not given the rules and that this led to the mistake.

I hasten to comment on the issue of poor eyesight and fatigue. These are issues which I think ought to have been brought to the attention of the respondent before the process was embarked upon. The appellant also raised the issue that he was not aware of the rules. However, the record shows that the appellant had run “draws” not just a draw, before the draw now under consideration (p 36). He can therefore not use this as an excuse. Had he not been aware of the applicable rules he should have asked. I don’t think that it is prudent for anyone to embark on a task and specially, head the team performing that task and yet not know the applicable rules. This explanation is therefore not acceptable.

The facts are common cause. The appellant was a branch manager at one of the respondent’s outlets. He led a team which conducted a draw. The members of the team included an auditor. The appellant drew a coupon of the first person one Chipo Mudereri who in terms of the rules qualified. He then with concurrence of the team members disqualified this entry. He then picked another ticket which duly qualified. This second draw, it is said, was an error. He admits the error – the error of disqualifying the first entrant. In its analysis the disciplinary authority established that in fact, the said Chipo Mudereri (Mudereri) who had been disqualified by the appellant had won through fraudulent conduct. It was fortuitous that she (Mudereri) was disqualified. By the time that the disciplinary proceedings were conducted Mudereri had not been the paid the bonanza price of $10 000-00. Having found that this was so, the disciplinary authority proceeded to find the appellant guilty as charged.

The facts show that after Mr Musiwarwo, the appellant, had disqualified Mudereri, a         Mr Makuzva (Makuzva) who was assisting in the draw, asked to see the winners to the competition. Makuzva discovered that Chipo Mudereri had been improperly disqualified. Makuzva had assisted in disqualifying Mudereri. However, on rechecking the coupon against the purchase receipt, it qualified for the draw. Someone telephoned Mudereri who then came that day at 7:00pm and claimed the prize money. At this point the second draw had already been done. It is however, not disclosed as to who this “someone” who advised Mudereri to come was.

In view of the circumstances surrounding this draw, Mr Musiwarwo phoned his General Manager, Mr Matsvayi, and informed him that he had made an error, that is he disqualified a winning coupon and went on to draw another. Now there were two winners to the $10 000-00 prize. This created a problem where two people now claim the prize money. This meant that the respondent organization (p 34 – 35) would have to pay $20 000-00.

During the course of the disciplinary proceedings (p 35) the respondent alleged that:

“This is tantamount to Gross Negligence, due to the manner in which the team handled the draw to a:

(1)	Biggest prize in the competition that needed more scrutiny by personally looking at the computer screen (verification) to see that it was accurately done. Follow it through step by step and not to err.

(2)	He had the people to assist him to do a thorough job.

(3)	The till slip, transaction was short and clear. It had list of participating products as

per competition rules.

(4)	He had time to do a thorough job accurate verification, but failed. In that case he was not competent enough to do the job. His action put the company to disrepute and discredits the competition (if it goes to the public social media).” (My underlining).

In the respondent’s view therefore, the appellant’s conduct amounted to gross negligence and not incompetence or inefficiency. The charge he was facing was gross incompetency or inefficiency. During the draw in question one of the appellant’s team comprised Mr Makuzva, the auditor and the appellant himself. It was the three of them who jointly qualified Mudereri as the initial winner. It was again the three of them who disqualified Mudereri. It was the three of them who proceeded to make another draw. It was only after the second draw that one of the team members decided to check the first draw. It is curious why the second rechecking was not done before the second draw was done. Obviously throughout the entire proceedings the appellant was the team leader. Had the team member acted like a genuine team member, the second rechecking would have been made before the second draw was done. This would have shown that Mudereri had cheated. This would have obviated the need by the appellant to raise the alarm that he did.

The “BARGAIN BONANZA 2017 TERMS AND CONDITIONS” (P44) show that the draw during the period in question would be conducted “on Saturday 14 October 2017…” AND “The handover of prizes will be held on Saturday 14 October 2017”… This gave the respondents, I think, time to ensure proper finalization of the process. The terms however do not show who informs the winner and when such a winner would be informed. It is necessary for me to interrogate these rules because it is a team member of the panel of judges who made a finding contrary to what the team had together initially decided on.

After its deliberations, the disciplinary committee found that the appellant “guilty as charged”. During the course of the hearing the conduct of the appellant was found to be tantamount to gross negligence. However, he was found guilty as charged, that is, of gross incompetence and inefficiency.

Mr Gwisai who appeared on behalf of the appellant strongly argued that the appellant was tried for ‘Gross Negligence’ and yet he was charged for “Gross incompetency or inefficiency in the performance of his or her work.”

It was submitted on behalf of the appellant that gross negligence and gross incompetence or inefficiency are two separate and distinct acts of misconduct. They are also not competent verdicts of each other. It was argued on behalf of the appellant that the appellant’s defence was for “gross incompetence” and not “gross negligence”. It was argued that gross incompetence refers to lack of skill. The ZBC v Jones SC 63/82 was cited as authority for this proposition. On the other hand, gross negligence is failure to exercise reasonable care and skill. The case of Standard Chartered Bank v Chipiningu 2004 (2) ZLR 94 was cited as authority for what constitutes gross negligence. As the authorities show, gross negligence connotes recklessness which is an entire failure to consider the consequences of one’s conduct. It is an extreme departure from the ordinary duty or standard of care. It was submitted that in view of the evidence which was before the Disciplinary authority, the disciplinary authority misdirected itself by finding the appellant to have been either grossly negligent or incompetent. The fact that there was participation of other members of the panel to disqualify Mudereri should be found in favor of the appellant. Had for instance, the auditor disagreed with the disqualification of Mudereri, the auditor would have said so. In the circumstances it was submitted that the appellant was not on a frolic of his own. There were checks on balances by way of other panel members in the event that an error should occur. The disqualification of Mudereri was therefore a genuine error made after all members of the panel had agreed. It was submitted that under the circumstances the decision finding appellant guilty was bad at law.

It is interesting that the unintentional error of the appellant led to the disqualification of a fraudulent winner. It was further submitted that the disciplinary authority came up with a verdict which is contrary to both its findings and the evidence before it. On the question of the appropriate penalty, it was argued that that he was given a final written warning. Then in addition to this the employer demoted the appellant and his benefits were also reduced. Such a punishment, it was submitted, amounted to punishing the appellant twice. This amounted to double jeopardy. It was in view of the above that the appellant prayed for setting aside both the conviction and penalty and restoring the appellant to his position before the imposition of the penalty. Mrs Chinyangarara Kaseke who appeared on behalf of the respondent argued that although the hearing established that the appellant was grossly negligent, this was a typographical error. Mrs Chinyangarara Kaseke submitted that what is important is that the appellant was convicted of what he was charged with. That being the case, the submission continued, there was no misdirection on the part of the disciplinary authority.

Mrs Chinyangarara Kaseke argued that the fact that it was the auditor who wrote “void” on the coupon and thus disqualifying Mudereri, did not make the auditor judge in this case. Further the question of Mudereri’s fraudulent claim would only have arisen later but the ultimate analysis was that she was the winner.

It was submitted on behalf of the respondent that the appellant was appropriately convicted and a suitable penalty was imposed. The submission continued that the question of what an appropriate penalty is lies with the employer. The combined penalty of a written warning and demotion therefore cannot be said to be punitive in nature and does not amount to double jeopardy. Mrs Chinyangarara Kaseke submitted that the error by the appellant was gross in nature and that he was in the circumstances appropriately penalized. In reply Mr Gwisai submitted that while the appellant admitted his error, it was not to gross in nature. Mr Gwisai submitted that the disciplinary authority misdirected itself in the circumstances.

Analysis

It is an established principle in this jurisdiction that a person is convicted of an offence that they have been charged with. Standard Chartered Bank Zimbabwe v Matsikai 1996 (1) ZLR 123 (S).

In the present case the appellant was charged with gross incompetence in violation of paragraph 4 (f) of S. I. 15/02, The National Code of Conduct. During the disciplinary proceedings the disciplinary authority found that his conduct amounted to gross negligence. Meanwhile the appellant was defending himself for gross incompetence. The disciplinary authority found that what the appellant did was gross negligence but convicted him of gross incompetence and inefficiency.

According to the Oxford Pocket Dictionary, Negligence – means “Want of proper care”. So gross negligence is a total or flagrant exercise or total disregard of what one is expected of or disregard of the consequences on one’s conduct.

Going to gross incompetence, this means: “not legally qualified” (to do something). Thus when it comes to incompetence, this is a state of affairs which the respondent was aware of. The record shows that he had conducted some draws before. So he was competent to conduct such draws. The problem arose with the current draw. A decision had already been made. Such a decision was “final” according to the rules of the draw. After such a decision had been made, a member of the panel decided to revisit the process. Had the appellant been grossly incompetent in the exercise of his duties, I doubt very much whether Respondent would in the circumstances have tasked the appellant with such a task. It is not clear what the rules say regarding revisiting a process.

What is important is that the appellant agreed with Makuzva. I think this is where he fell into error. Can that error amount to gross negligence? Was it intentional on his part to revisit the process? The evidence on record shows that he is not the one who revisited the concluded process and therefore this was not intentional on his part. It being unintentional, can it amount to gross negligence? In view of the evidence led, this in my considered view cannot and does not amount to gross negligence. It is not a flagrant disregard of rules. Indeed, he admitted his error. In my view his error occurred when he agreed, with members of the panel to revisit the process. As correctly submitted on behalf of the respondent, had he not agreed, Mudereri would not have been immediately disqualified. A second draw at that point would most likely have not occurred. Mudereri’s fraud would have been dealt with later. Whether or not a second draw would then have been conducted is an issue I think I cannot comment on.

Having considered all the evidence and argument I find that firstly, the conduct of the appellant did not amount to gross incompetence or inefficiency as envisaged by its definition and authorities consulted. On that basis alone I would find that the disciplinary authority fell into error when it convicted the appellant of conduct which was not consistent with the evidence led.

Secondly, the disciplinary authority found the appellant to have been grossly negligent. The appellant was charged with gross incompetence but he was found to have been grossly negligent. Incompetency and negligence are two different offences. Mrs Chinyangana Kaseke urged the court to find that gross negligence was a typographical error. However, this is not supported by any evidence. I am therefore not convinced by that assertion. Had it been typographical error, I am sure that efforts would have been made to correct it. Mrs Chinyangana Kaseke did not show me any efforts on the part of the respondent to correct the error. This means that the findings of the disciplinary authority are contrary to the charge. The disciplinary authority in my view found it convenient to convict the appellant as charged and yet this was contrary to its findings.

I am therefore persuaded to agree with Mr Gwisai that the disciplinary authority made a decision which is bad at law. The disciplinary authority fell into error in coming to the decision that it made.

It is an established principle in this jurisdiction that an appeal court does not interfere with the factual findings of an earlier tribunal unless such findings are contrary to the evidence led. In the case of Alpha Madzima v Marange Ressources (Private) Limited SC 12/18, the Supreme Court held that:

“It is settled in our law that an appellate court must be slow in interfering with the discretion exercised by a lower court. It must appear that some error has been made in exercising the discretion.”

It is my considered view that the findings of the disciplinary authority are contrary to the conclusion it arrived at. Even if the finding had been of that of gross incompetence, the evidence does not support such a finding. In other words, in my view the conduct of the appellant was neither grossly incompetent nor grossly negligent.

It is in view of the foregoing that I find that there is merit in the grounds of appeal. As noted already the appellant was aggrieved with the penalty. However, in view of my finding that there is no basis for the conviction, I find it not necessary to comment on the question of penalty.

Having said the above, the appeal succeeds.

It is accordingly ordered that the appeal be and is hereby granted and:

1.	The decision of the disciplinary authority be and whereby set aside.

2.	The appellant is found not guilty of contravening section 4 (f) of Statutory

Instrument 15/206 : Gross incompetency or inefficiency in the performance of his work.

3.	The respondent be and is hereby ordered to restore the appellant to his previous

position without loss of benefits with effect from the date that the penalty took

effect.

Munyaradzi Gwisai & Partners, Appellant’s Legal Practitioners

Honey & Blanckenberg, Respondent’s Legal Practitioners