Tendai Musiiwa v Zimbabwe United Passenger Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/72/25
HARARE 3rd JULY, 2024
CASE NO LC/H/375/24
AND 25 FEBRUARY, 2025
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 3rd JULY, 2024 AND 25 FEBRUARY, 2025

TENDAI MUSIIWA

ZIMBABWE UNITED PASSENGER COMPANY

JUDGMENT NO LC/H/72/25

CASE NO LC/H/375/24

APPELLANT

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant

For Respondent

Mr. C. Chigwada (Legal Practitioner)

Mr C. Daitai (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against the determination of the Acting Chief Executive Officer, sitting as an Appeals Authority dated 11th March, 2024.

FACTUAL BACKGROUND

The Appellant was employed by the Respondent as a cashier. Appellant was suspended on 19th February, 2024. He was later charged with the offence of “Gross Negligence” under S.I 42 of 2022 offence 2.3.1. The Appellant was called for a hearing on the 22nd of February and Appellant was duly acquitted of the charge having been found not guilty. The Respondent appealed against the ruling to the C.E.O who in turn set aside the finding made by the Hearing Committee and substituted it with a dismissal penalty. The Appellant displeased with the verdict then lodged the present appeal before this court against the C.E. O’s Determination.

GROUNDS OF APPEAL

1.     The Acting C.E.O erred in failing to appreciate that the matter which the Appellant was duly acquitted on had a charge of "Gross Negligence" which is quite different from the

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one he had to base or premise his decision on, which is "failure to follow instructions from their employer". Hence his arriving at an ill-founded decision.

2.	The C.E.O failed to appreciate that even the complainant himself was not serious about the proceedings, this can be seen from his response during the disciplinary hearing proceedings, when asked a pertinent question by a member of the Disciplinary Committee, he answered in a misguided manner, (See DisciplinaryMinutes of the 221d February 2024)

3.	The C.E.O failed to observe that, had Appellant refused or disregarded the instruction duly given to her by the Cash Office Supervisor, of recording the totals only and attaching the receipts, to meet the time frames requested by the Accounts Department, Appellant would have committed a serious offense which is offense 3.1.4 "wilful disobedience of a lawful order given by the employer", S.I. 42 of 2022, Sixth Schedule Code of Conduct, Annexure 2, ACTION CODE page 526.

4.	The C.E.O failed to appreciate that the even the Cash Office Supervisor confirmed that she was the one who gave Appellant the instruction to perform her duties in the manner she was doing see disciplinary minutes, paragraph 5.9 and 6.0 page 8.

POINTS IN LIMINE

The Respondent through his Heads of Argument and in oral submissions has taken four points in limine. The points are as follows;

(1) The grounds of appeal are not clear and concise at all and that is a ground enough to dismiss the appeal with costs. See Dr Kunonga v Church of the Province of Central Africa SC25/17 where the principle was restated that grounds of appeal must be "clear and concise" for them to comply with the rules. Such conciseness embodies the requirement that the grounds of appeal must be clear as opposed to being general or vague - Hendricks v Wilcox 1962 (1) cpd 304, S v McNab 1986 (2) ZLR 280 (S), S v Jack 1990 (2) ZLR 166 (S) @ 167D - G and R v Emerson & Ors 1957 R & N 743.

(2) Respondent takes issue with the Appellant's Heads of Argument. The Appellant has replicated their Notice of Appeal disguised as Heads of Argument. The difference between the two documents is in the title only as one is titled "Notice of Appeal” whereas the other document is titled "Heads of Argument'. The set of facts are identical

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and the Appellant even forgot to remove the phrase "FORM LC 4" on the purported Heads of Argument.

(3) These purported heads of argument, do not comply with rule 26 of the Labour Court Rules and may as well be struck out of the record.

On the date of hearing, parties made oral submissions in elaboration of their position in

regards the points in limine as taken. Mr Daitai, for the Respondent submitted that the first point in limine was merited. The court was urged to note that the Appellant was not really clear on what was being challenged in regards to the Appeals Officer’s ruling. It was a trite position that grounds of appeal must clearly attack the findings or reasoning of the court a quo and such findings must be of fact or law. Mr Daitai further urged the court not to be persuaded by the Appellant’s argument that the Appeals Officer failed to appreciate that a different charge had been raised before him. On page 22 of the record, the Appels Officer was very much aware of the charge the Appellant was facing and she went on to deal with the defence offered by the Appellant. In dealing with the offence, the Appeals officer also had to address the issue of failing to follow instructions. Mr Daitai further submitted that on page 7 of the record, several dates had been captured where the Appellant negligently failed to do what was required hence it was not true that the Appeals Officer had failed to appreciate the nature of the matter before the Disciplinary Committee. Mr Daitai also further submitted that the second ground of appeal did not qualify to be considered as a ground of appeal as it did not challenge a finding of fact or law. In respect of the third and fourth ground of appeal, it was not properly couched in a manner that showed a finding of fact or law was being challenged.

Mr Chigwada for Appellant, submitted that Appellant’s grounds of appeal satisfied the pre-requisite that grounds of appeal must be clear and precise in all aspects. Mr Chigwada further submitted the point that the Heads of Argument were a replica of the Notice of Appeal was disputed. The substance of the Heads of Argument was not the same and it was divorced from the Notice of Appeal. Mr. Daitai in response to the third point in limine submitted that it was queer that the Heads of Argument made reference to Form LC4 it simply showed that it was referring to the Notice of Appeal.

EVALUATION ON THE PRELIMINARY POINTS

WHETHER THE GROUNDS OF APPEAL ARE CLEAR AND CONCISE

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It is an established principle of law that the grounds of appeal must be clear and concise. This principle was restated in the case of Dr Kunonga v Church of the Province of Central Africa SC25/17 where the court held that grounds of appeal must be "clear and concise" for them to comply with the rules. Such conciseness embodies the requirement that the grounds of appeal must be clear as opposed to being general or vague - Hendricks v Wilcox 1962 (1) cpd 304. After a thorough perusal of the record and hearing parties in oral submissions, the court is of the view that the first ground of appeal is clear and concise and makes an attack on a finding of fact that the Acting C.E.O erred in failing to appreciate that the matter which the Appellant was duly acquitted on had a charge of "Gross Negligence" which is quite different from the one he had based or premised his decision on, which is "failure to follow instructions from their employer," hence his arriving at an ill founded decision. The appeal through this ground is attacking the finding on the basis that the acting C.E.O relied on the wrong facts and law. The Appellant is clearly alleging a gross misdirection on the facts and law. See Reserve Bank of Zimbabwe v Granger SC33/20.

On the second ground of appeal, it is this court’s finding that the ground does not meet the pre-requisite of a ground of appeal. It is not clear what finding of fact the Appellant is making an attack on. It is also clear that the ground does not attack anyfinding of law. It merely makes an attack on the alleged lack of seriousness by the complainant. The ground clearly ought to be struck out.

On the third ground of appeal, it is this court’s finding that although the ground of appeal is not clear and concise the Supreme Court, in Zvokusekwa v Bikita Rural District Council SC44/15, emphasised that the court ought to be guided by the substance of the ground not the form. The Appellant is clearly criticizing the decision on the basis that it is contrary to the evidence as presented. Her defence being that she was responding to a lawful instruction by her Supervisor the same Supervisor had testified confirming this position. The Appellant further contends that had she refused or disregarded the instruction duly given to her by the Cash Office Supervisor, of recording the totals only and attaching the receipts, in order to meet the time frames requested bythe AccountsDepartment, sherisked committingaserious offense which is offense 3.1.4 "wilful disobedience of a lawful order given by the employer", S.I. 42 of 2022, Sixth Schedule Code of Conduct, Annexure 2, ACTION CODE page 526. This is a valid ground that the court is obliged to make a finding on.

On the fourth ground of appeal, it is this court’s finding that the ground of appeal is clear and concise. The Appellant is attacking the finding on the fact that the C.E.O failed to

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appreciate that the Cash Office Supervisor confirmed that she was the one who had given him the instruction to record the totals only and attach the relevant receipts. Paragraphs 5.9 and 6.0 on page 8 are relevant. The Appellant is once again alleging a finding of fact made which was contrary to the evidence as presented by the Cash Office Supervisor.

It is therefore this court’s finding that the 1st, 3rd and 4th grounds of appeal are properly placed before the court. The 2nd ground of appeal is very vague. It also is not clear if it is attacking a finding of fact or law. It therefore stands to be struck out of the appeal.

WHETHER THE FACT THAT THE APPELLANT’S HEADS OF ARGUMENT ARE

A REPLICA OF THE NOTICE OF APPEAL RENDERS THE APPEAL FATALY DEFECTIVE

Generally, the Heads of argument and notice of appeal serve different purposes. The Notice of Appeal initiates the appeal process, stating the grounds for appealing against the original decision whereas the Heads of Argument generally provide detailed legal arguments in support of the appeal. Heads also outline the relevant facts, the legal principles applicable, and relevant case authorities. While the facts may be the same in both documents, the Labour Court Rules require that the Notice of appeal and Heads of argument comply with specific formalities. If the notice of appeal is defective or incomplete, it can impact the validity of the appeal. However, in casu, the attack on the notice of appeal was not on the notice itself being fatally defective. The attack was on the replication of the facts in the Notice of Appeal in the Heads of Argument. The court is inclined to dismiss the point in limine. The court notes that the Appellant is not represented by a Legal Practitioner. The Respondent has also not pointed to any prejudice it stands to suffer as a result of this technicality. Lastly, the court is of the view that the technical argument cannot prevent the court from hearing the appeal on the merits. This is in light of the approach advocated in Mapondera and 55 Others v Fredda Rebecca Gold Mine SC81/22 for the court to focus more on the merits rather than technicalities.

WHETHER THE APPELLANT’S HEADS OF ARGUMENT COMPLY WITH RULE 26 OF THE LABOUR COURT RULES

Rule 26 of the Labour Court Rules, 2017 provides as follows;

‘26. (1) Where an Appellant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review, the legal practitioner or representative shall --

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(a) within ten days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out tire authorities, if any, which he or she intends to cite; and

(b) immediately afterwards deliver a copy of the heads of argument to the respondent and lodge with the Registrar proof of such delivery as required by rule 11.’

It is the Respondent’s contention that the Appellant’s Heads of Argument do not comply with

this rule and ought to be struck off. After a perusal of the Appellant’s Heads of Argument, the court is of the view that the Heads, although poorly drafted, are not necessarily in breach of this court’s rules. The Heads were not crafted by a Legal Practitioner. The Respondent has also failed to specifically point out in what respect the Appellant’s Heads of Argument have failed to comply with Rule 26. For this reason the court is again inclined to dismiss the third point in limine as raised by the Respondent.

PARTIES SUBMISSIONS ON THE MERITS

Both parties appeared before this court and made submissions in line with their heads of arguments filed.

APPELLANTS’ SUBMISSIONS

In oral submissions, Counsel for the Appellant submitted that the bone of contention between the parties is that the Appellant had been acquitted on the charge of gross negligence by the Disciplinary Committee. The complainant, disgruntled with that decision, had launched an appeal to the acting CEO. The acting CEO, in the process of determining the appeal, ought to have focused her analysis on the charge that levelled against the Appellant, being gross negligence. He instead chose to look at a fresh charge which was “failure to follow instructions.” Counsel also addressed on the 3rd ground of appeal. It was submitted that it was not in dispute that the Cash Office Supervisor gave Appellant an instruction to record totals only and to attach the relevant receipts. This was necessary in order for the employees to meet the time frames requested by the department. Given this position, if the Appellant had refused to follow the instruction, she would have run the risk of committing another offence of wilful disobedience. Counsel for the Appellant further submitted that the Respondent in his Heads of

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Argument had made a bold misrepresentation. A reading of the internal disciplinary record minutes would demonstrate otherwise.

On the 1st ground of appeal, the Appellant submitted that the Acting Chief Executive Officer (CEO) erred in imposinga dismissal based on a charge of "failure to follow instructions from their employer" when the Appellant had been duly acquitted of the distinct charge of "gross negligence." The Appellant contended that the CEO's decision was ill-founded and failed to recognize the distinction between the two charges.

The Appellant, on the 3rd ground of appeal, contended that the CEO failed to appreciate that compliance with the instructions given by the Cash Office Supervisor—recording totals only and attaching receipts to meet the accounts department's timeframes—was necessary to avoid committing a more serious offense. The Appellant argued that refusal to follow such instructions would have constituted "wilful disobedience of a lawful order" under Section 3.1.4 of Statutory Instrument 42 of 2022.

The Appellant further submitted that on the 4th ground of appeal, the Cash Office Supervisor confirmed giving the instructions, which were lawful and did not prejudice the organization, as all necessary receipts were attached to the CRS. The Appellant noted that this submission was never challenged during the disciplinary proceedings, as recorded in the minutes (page 4, paragraphs 3.1, 5.9, and 6.0), resolving any doubt about the instruction's lawfulness.

The Appellant prayed for the appeal to succeed, requesting the court to set aside the dismissal decision and order reinstatement without loss of salary or benefits. In the alternative, if reinstatement was not feasible, the Appellant was seeking damages in lieu of reinstatement, with the quantum to be agreed upon by the parties or determined by the court in the event of a disagreement.

RESPONDENTS SUBMISSIONS

The Respondent, on the first ground of appeal, submitted that the core issue was whether the Acting Chief Executive Officer (CEO) was correct in overturning the disciplinary committee's decision and imposing a guilty verdict with a dismissal penalty. It was submitted that the CEO properly considered the charge of gross negligence, which involved the Appellant’s failure to record Cash Record Sheets (CRS) fuel transactions procedurally. The Respondent further contended that this negligence risked revenue loss and was aggravated by the Appellant’s adherence to an instruction contrary to established procedures.

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The Respondent submitted that the CEO acted reasonably in analysing the evidence and determining that the Appellant’s failure to follow correct procedures violated their employment contract, particularly Clause 6, which deemed such negligence as serious misconduct warranting termination. The CEO also correctly found that the Cash Supervisor’s instructions, relied upon by the Appellant, were unlawful as they contradicted established revenue-protection procedures.

The Respondent Counsel submitted that the Appellant’s reliance on an unlawful instruction by the Cash Office Supervisor was not a valid defence. Reliance was placed on Matereke v Ct Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S) where the Supreme court had defined what isa lawful order. The Respondent’s argument was that the actingCEO’s findings of guilt on the charge, including the dismissal penalty, were consistent with legal precedents such as Govora v Innscor Africa Ltd SC 77 of 2014.

It was the Respondent’s position that the Appellant’s allegations against the Acting CEO, including his purported failure to appreciate the charge or to consider the Cash Office Supervisor’s instruction, were baseless allegations which were also not supported by the record. It was contended by the Respondent that the Acting CEO’s determination was reasonable, it was also grounded on the available evidence and the applicable law. On the basis of the authority in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) an appellate court can only interfere with findings of facts in a lower court/tribunal in exceptional cases. In this case there was no basis laid for such interference with the factual findings made. The Respondent’s prayer was for the dismissal of the appeal with costs on a legal practitioner-client scale.

EVALUATION

The court having struck off the 2nd ground of appeal the court will only address the merits on the 1st, 3rd and 4th ground of appeal. It is indeed the correct position of law as succinctly captured in Hama vs National Railways of Zimbabwe referred to supra, that an appellate court cannot lightly interfere with findings of fact by a lower court or tribunal. In that case Korsah JA remarked as follows:

“The general rule of the law as regards irrationality, is that an appellate court will not interfere with a

decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

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The Appellant on the 1st ground of appeal argued that the Acting CEO incorrectly focused on a fresh charge, "failure to follow instructions," which was not part of the original charge levelled. The primary issue is whether the Acting Chief Executive Officer (CEO) was correct in overturning the disciplinary committee’s decision, substituting it with a guilty verdict, and imposing a dismissal penalty on the Appellant for gross negligence.

It is this court’s view that the Appeals Authority erred and misdirected herself when

she overturned the Disciplinary Committee decision and substituted with a guilty verdict. The charge that had been levelled was of Gross Negligence. ‘Gross Negligence’ as defined in Annexure 1, Paragraph 26 of the Code states that;

“Gross Negligence – An employee is guilty of gross negligence if there is proven aggravated or

excessive negligence in the performance of his duty.”

The courts, as noted in Standard Chartered Bank of Zimbabwe Ltd v Chipininga 2004(2) ZLR 94(S), have clarified gross negligence as “ordinary negligence of an aggravated form," further described as “a want of even scant care” or “failure to exercise even that care which a careless person would use.”

,' means simply that the employee is not bound to obey an order to do something not properly

appertaining to the character or capacity of his contract of employment.”

A reading of the record in proceedings clearly shows that complainant referred his appeal on the basis of a misdirection by the disciplinary committee on the facts and the law. His view was that there had been sufficient evidence led to justify Appellant’s conviction on the charge of gross negligence levelled. The complainant specifically referred to the Appellant’s ‘failure to follow (followed unlawful instruction) according recording procedures that could result in the company losing revenue.’

The role of the acting CEO sitting as an Appeal officer was to evaluate the parties

submissions as well as the evidence led before the disciplinary committee in order to determine whether the Disciplinary Committee had made correct findings on the law and facts when they reached a finding of not guilty on the charge. In her findings the acting CEO made the following critical findings. She at the outset correctly outlined the charge levelled as ‘gross negligence - Annexure part 33 of Statutory Instrument 42 of 2022 under the Collective Bargaining Agreement of the Transport Operating Industry. After outlining

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the charge she then moved to the Appellant’s defence outline tendered before the Disciplinary Committee.

In the process of addressing the defence outline the Acting CEO delved into a

discussion of the Appellant duties as a Cashier. She reached a conclusion that the Appellant had failed to execute her duties as was expected by the employer. Although she did not clearly state so it was apparent she had formulated the view that the Appellant was guilty on the basis of breach of duties under the contract. This is apparent as in the next line she opined that the fact that the Appellant had acted on the basis of an instruction from the Supervisor could only have been regarded as a mitigating factor to the sentence?(my own presumption).

The Acting CEO went further to make a finding that the Appellant’s breach of his duties as well as the unlawfulness of the instruction by his Supervisor further aggravated the case against him. She again opined that from her reading of the record the Disciplinary Committee had not paid adequate attention to the unlawfulness of the instruction given to the Appellant.

She thereafter ventured into a discussion of the elements of a charge of Failure to follow lawful instruction or wilful disobedience. This is clear as she started outlining what is a lawful instruction, what instruction an employee has a duty to disregard, culminating with a reference to what is now regarded as the local classicus for the charge of Failure to follow lawful instruction which is Matereke vs CT Bowring & Associates (Pty) Ltd 1987 (1) ZLR 206 (S) where the Supreme Court discussed the issue of what constitutes a lawful order. In dismissing the Appellant’s reliance on the supervisor’s instructions as not a valid defense she stated as per Matereke decision as follows;

“The existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful."

The Acting CEO after referring to the Matereke decision then arrived at a finding that the order given to the Appellant was unlawful. The Appellant was therefore not obligated to follow the instruction. On this basis the Acting CEO found that the Disciplinary Committee had misdirected itself and erred in finding Appellant not guilty on the charge levelled. She consequently upheld the appeal by the Complainant.

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In the court’s finding the Acting CEO clearly erred and misdirected herself on the facts and law. Whilst she correctly outlined the charge levelled as being gross negligence, instead of addressing that specific charge, she went off on a tangent to address the elements of a completely different charge. The charge that had been levelled was of gross negligence. From a reading of the record it is clear that she became entangled in an address on the charge of failure to follow lawful instruction on the basis of the grounds of appeal by the Complainant which is referred to supra. It was the complainant who improperly referred to a failure to follow lawful instruction as being one of the elements missed by the Disciplinary Committee. This however was clearly a misapprehension on the part of the Complainant as that element is not one of the elements of a charge of gross negligence. Respondent’s Counsel sought to argue before this court that the Acting CEO was correct in focussing in her findings on that issue, in other words his view was the lawfulness or otherwise of the instruction constituted part of the charge of Gross Negligence. The submission is clearly mischievous and in any event is not supported by the record. The Acting CEO apart from the cursory reference to the charge of gross negligence at no stage discussed the elements of gross negligence, she also did not indicate that she regarded the issue of failure to follow lawful instruction as constituting an element of gross negligence. Rather she went on a frolic of her own to discuss the elements of a completely different charge.

The acting CEO was however correct in her observation that the disciplinary committee had not ventured to discuss the issue of the unlawfulness of the instruction by the supervisor. It may very well be the position that the Disciplinary Committe, unlike her, was alive to the fact that the issue of failure to follow lawful instruction was not a material component of the charge of gross negligence.

It is also clear that gross negligence and a failure to follow lawful instruction which sometimes is presented as wilful disobedience of a lawful instruction depending on each particular Code of Conduct do constitute different charges, the elements of each being completely different. The elements of the charge of gross negligence would be derived from the definition which was referred to supra. It is important to underline that in her determination the Acting CEO paid scant regard to the essential elements of the charge of gross negligence. Instead she went on a tangent to discuss the elements of a different charge

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of failure to follow instruction. She was however sitting in an appeal she therefore had to confine herself to the charge as levelled before the Disciplinary Committe.

The Appellant in his defence to the charge of gross negligence had submitted that he

had been instructed by his Supervisor to record in the manner he did as they were short-staffed at the material time and they needed to meet a deadline. The submission had also been corroborated by the Supervisor herself. The Disciplinary Committee in its findings noted that CRS had not been recorded according to the proper procedure, the Appellant however had been working on the basis of an instruction from her supervisor, who had also confirmed the existence of the special circumstances prevailing at the time, which circumstances were clearly peculiar to the case and would have the effect of diminishing the Appellant’s guilt on the charge levelled. It would appear from the record the Disciplinary Committee had indeed accepted the defence tendered resulting in them returning a not guilty verdict.

The Acting CEO in her determination came to the conclusion that the instruction was

unlawful. Even if it could be argued that the issue of unlawfulness of the instruction was properly taken before her as a component of the charge of gross negligence she would still be required in order to arrive at a decision of whether or not the instruction lawful consider the special circumstances that had been placed before the Disciplinary Committee. Taking into account those factors which were that there was shortage of staff due to contract breaks and that there was need to meet the department deadline the Acting CEO would have addressed the issue as to whether the instruction issued by the Supervisor was still unlawful in those circumstances and why she believed the Disciplinary Committee was wrong in their conclusion? Clearly the Acting CEO could not arrive at a decision of the instruction being unlawful or Appellant having been grossly negligent without considering those factors as placed before the Disciplinary Committee. It was those circumstances which were peculiar to the case which the Disciplinary Committee had found to have the effect of abolishing the Appellant’s guilt on the charge. In order to upset the finding by the Disciplinary Committee she had to have found a gross error or misdirection on the part of that committee. The Acting CEO in her determination however clearly failed to address herself to the findings and evidence before the Disciplinary Committee.

Needless to point out the Acting CEO in her determination also effectively substituted a fresh charge for the one levelled. She thereafter found Appellant guilty on a different charge

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by applying a different test. There is no doubt that she clearly misdirected herself on the facts and the law. It is also a trite position at law that an Appeals Authority does not have responsibility to amend and substitute the charge levelled against an employee with another as to do so amounts to a blatant miscarriage of justice. See ZB Limited vs Tirivanhu Marimo SC976/17.

Having arrived at this conclusion it must follow that the first ground of appeal must be upheld. There will be no need for the court to address the other grounds of appeal raised in this appeal.

In the result it is ordered as follows;

1. The appeal succeeds with costs.

2. The determination of the Acting CEO dated 11March, 2024 is hereby set aside.

3. The Appellant is reinstated into his original position with effect from the date of dismissal without any loss of salary and benefits.

4. In the event reinstatement is no longer tenable, Respondent shall pay to Appellant damages as agreed by parties or upon quantification by this court.