Tapfumaneyi Matsinde V Petrotrade (Pvt) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/189/2016
HARARE, 22 JULY 2015 &
18 MARCH 2016
CASE NO LC/H/904/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/189/2016

HARARE, 22 JULY 2015 &				         CASE NO LC/H/904/2014

18 MARCH 2016

In the matter between

TAPFUMANEYI MATSINDE					APPELLANT

Versus

PETROTRADE (PVT) LTD					RESPONDENT

Before the Honourable E Makamure J

For the Appellant	S Rugwaro (Legal Practitioner)

For the Respondent	E T Moyo (Legal Practitioner)

MAKAMURE J:

This is an appeal against an award by an arbitrator. After hearing the matter the Learned Arbitrator confirmed the appellant’s dismissal from the respondent’s employ. Aggrieved by that award the appellant appeals to this court on the following grounds:

“1.	The arbitrator grossly misdirected himself by concluding that it is legally correct for the respondent to selectively charge an individual for alleged misconduct arising from a collective decision of a board formed in terms of statute. In this case out of six members of the Procurement Committee only three members were charged and others were not, without any reason being given.

2.	If his finding is correct, that, in law, it is legally correct to charge people individually based on their personal participation, the charge against the appellant is wrong, as on the evidence on record, it is not the appellant who authored or communicated with Vitol on the provisional tender award.

3.	The arbitrator misdirected himself in law, in the interpretation of section 3 and 14 of the procurement Regulations by concluding that the Chief Executive officer of a procurement entity has a role in the deliberations of the Procurement Committee during the adjudication process, yet that section is clear that once the CEO has appointed another person to chair the proceedings of the Procurement Committee the CEO ceases to be a member of such committee.

4.	The arbitrator misdirected himself in concluding that, the letter of the 13th October 2013, forwarded to Vitol constituted a firm acceptance and thereby created a contract between the parties whereas in law that letter did not create a binding contract between the parties. No tender award was therefore communicated to Vitol.

5.	The arbitrator failed to pay regard to the provisions of the law relating to this issue in particular section 3 of the Procurement Regulations which provides that “in the case where a procurement entity is a statutory body or local authority, the Accounting Officer of that entity or by an officer to whom such power has been specifically delegated by the Accounting Officer”.  Further in terms of section 14 (1) it is provided that “there shall be a Procurement Committee for each Procurement entity selected by the accounting officer and headed by him or his delegated representative” Section 14 (2) provides that “the Procurement Committee shall be responsible for the procurement of goods and services”.

Had the arbitrator correctly applied the provisions of the above quoted sections he would have concluded that in law there was no requirements for consulting or seeking approval of the Acting Chief Executive Officer.

6.	The law provides that, in respect of a first offender, dismissal is not the obvious penalty option, it can only be applied where other lesser penalties have failed, however the arbitrator misdirected himself by ignoring the law and without reason upheld the discussion of the Disciplinary and Appeals Authority on penalty.

7.	The arbitrator findings and conclusion facts (SIC) are grossly unsupported by evidence on record resulting in serious misdirection on conclusion of law.”

The facts of this matter are that the appellant was the chairperson of the respondent’s Procurement Committee. He so chaired after being delegated to do so by the Acting Chief Executive Officer (A/CEO/CEO)) of the respondent.

The appellant in his capacity as the chairperson communicated the award of a provisional tender to one supplier, namely Vitol. Prior to that happening, queries had been raised by the CEO for example, regarding the exclusion of one of the possible suppliers. Such provisional offer was done without approval by the CEO. The appellant personally acted on behalf of the Committee but did not adhere to the basic procedures. While he is aggrieved that he is one of three persons who were disciplined, he cannot escape liability. Firstly it is the discretion of the employer to decide who to discipline and when to do so. (See Lancashire Steel v Zvidzai & Ors SC 29-95). Secondly he simply did not conduct the necessary consultations with the CEO or at least clarify the issues of concern that had been raised by the CEO. The arbitrator found that the appellant was guilty of an act or omission grossly inconsistent with the express or implied conditions of his contract of employment. I agree with that finding.

The first ground deals with the respondent’s discretion to discipline the appellant. That cannot be the subject of discussion. It is the prerogative of the employer. Toyota Zimbabwe v Richard Posi SC-55-07). It is trite that the law should not be selectively applied. However, as indicated above where a misconduct has been committed, it remains the employer’s duty and obligation to ensure that the appropriate action against offenders is taken.

The second ground appears to be a repetition of the first ground. The fourth ground is factual in nature. The fifth ground seeks to divorce the provisions of the Regulation from what the standing procedure was. Again it is factual in nature. The sixth ground relates to penalty. It is settled law in this jurisdiction that once an employer has exercised their discretion to dismiss, an appeal court should not interfere with that discretion unless if it is shown that such discretion has been improperly exercised.

In Bambe v Bambe SC-9-10 the Supreme Court stated that unless a decision is clearly wrong, it cannot be interfered with. (See also Circle Cement v Nyawasha SC-63-03).

The seventh ground asserts that the arbitrator’s findings and conclusion are grossly unsupported by evidence. However what appears undisputed is that the appellant both personally and as chairperson of the respondent’s procurement committee is party to a decision which was transmitted to a bidder without the CEO’s authority. That is clear and admits of no doubt. Thus on that basis alone, there is sufficient evidence against the appellant. On the fourth ground, it is clear that the communication between the Procurement Committee and the company Vitol constituted a firm acceptance. This was without the CEO’s authority. To add to this the CEO had raised queries concerning this same matter which queries were never addressed.

In view of the foregoing therefore, the arbitrator’s findings are unassailable. There is no misdirection on the part of the arbitrator. There is therefore no need to interfere with that award.  (Bambe v Bambe (above)).

There is no merit in all the grounds of appeal. The appeal fails.

In the result it is ordered that the appeal be and is hereby dismissed with costs.

S Rugwaro & Associates, appellant’s legal practitioners

Scanlen & Holderness, respondent’s legal practitioners