Tirivangani Chiyanike v National Oil Infrastructure Company of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/304/14
HELD AT HARARE ON 24TH FEBRUARY 2014
CASE
JUDGMENT NO LC/H/304/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/304/14

HELD AT HARARE ON 24TH FEBRUARY 2014 		CASE NO LC/H/497/13

& 6TH JUNE 2014

In the matter between:-

TIRIVANGANI CHIYANIKE				Appellant

And

NATIONAL OIL INFRASTRUCTURE			Respondent

COMPANY OF ZIMBABWE

Before The Honourable E Muchawa, Judge

For Appellant		H Mukonoweshuro (Legal Practitioner)

For Respondent		R Mutasa (Legal Practitioner)

MUCHAWA, J:

This is an appeal against the decision of the respondent’s Appeals Committee to dismiss the appellant’s appeal.

Appellant was employed by respondent as a rail and road tanker loading operator.  He was then charged of two counts of misconduct relating to incidents of the 9 January 2013 in terms of Zimbabwe Energy Industry Code of Conduct.  The charges were:

Count 1: Insubordination or disobedience

Count 1a was of disobeying lawful instructions given by a supervisor, appropriate local senior official, the Head of a Company/Organisation or the Board.  It was a contravention of section 7 (1) (d) (ii) of the relevant Code of Conduct.

Count 1b was a contravention of section 7 (1) (d) ii being wilfully failing, neglecting or refusing to comply with any of the conditions of service, the organisation rules or regulations, any applicable laws, laid down policies or procedures, or written standing instructions.

Count 2: Dishonesty

Count 2 (a) was an alleged contravention of section 7 (1) (j) (i) that is failing to account for property or moneys belonging to a company/organisation or in its lawful possession, in respect of which it was one’s duty to look after or safeguard.

Count 2(b) was an alleged contravention of section 7 (1) (j) (v) that is falsifying an official document or electronic record of a company/organisation or wilfully recording or causing to be recorded therein false or misleading information.

The facts giving rise to the charges were that on the 9 January 2013 the appellant had;

disobeyed his supervisor’s lawful instruction when he failed to monitor rail tankers during loading, refused or failed to take physical dips of all loaded wagons to confirm loaded volume and had instead allowed an independent agent (Digital Logistics represented by a Mr B Matiza) to undertake those duties in his presence (Count 1a)

refused, failed or neglected to record, compile and present details of Engen loadings, specifically physical dips as he left it to the independent agent to do so (count 1b)

overloaded fifteen rail tankers of diesel by allowing product to be loaded beyond the diesel ullage bar to the higher petrol ullage bar.  By so doing he did not account for excess diesel fuel worth 39 000 litres, that is to say, a commercial  loss value of USD51 480 which would have been lost (Count 2a)

concealed information by failing to report that he did not monitor rail tankers’ maximum diesel level upon loading, did not dip the rail tankers to ascertain that the volume loaded did not exceed NRZ rail tankers maximum loading level for diesel and left it to the independent agent to do so (Count 2b)

allowed the independent agent to present false dips of diesel when it was within his control to prevent this during and after the loading process. (Count 2b)

Appellant was found guilty and convicted of insubordination or

disobedience and dishonesty.

The grounds of appeal before me are summarised as follows:

The Appeals Committee erred in upholding the conviction of the appellant for disobeying verbal instructions given by Mr Chisaka.  Mr Chisaka was neither a supervisor nor one of the employees mentioned in section 7 (i) (a) (ii) of the company’s Code of Conduct.  The committee erred in concluding that disobeying the charge hand’s verbal instruction which differed materially from the supervisor’s written instruction constituted the offence of contravening section 2 (i) (d) (ii) of the Code of Conduct.

The Appeals Committee erred in concluding that the appellant was responsible for ullaging when the procedures manual and written instructions given to him by the supervisor indicate that the appeal that the appellant’s duties were loading and not ullaging.  The evidence before the Appeals Committee suggests that the appellant obeyed the instruction to load given to him  by the supervisor and its decision is not consistent with the evidence.

The Appeals Committee therefore failed to apply its mind to the facts.

The Appeals Committee erred in upholding the conviction in respect of the charge relating to wilfully failing, neglecting or refusing to comply with conditions of service.  The appellant’s conditions of service were not placed before both the disciplinary and Appeals Committee.  There was no evidence upon which a reasonable tribunal acting reasonably could convict appellant.

The Appeals Committee erred in upholding the conviction relating to falsifying an official document or electronic record of a company/organisation or wilfully recording or causing to be recorded therein false or misleading information.  There was no evidence before both committees that appellant had falsified any electronic record or official documents or caused to be recorded false or misleading information.

The Appeals Committee in upholding the conviction relating to the charge of failing to account for property or moneys belonging to the company or in its lawful possession in respect of which it is one’s duty to look after or safeguard.

The Appeals Committee misdirected itself in concluding that the chargehand Mr Chisaka could and did delegate the responsibility of checking ullage levels to appellant.  There was no evidence before the court to the effect that a junior employee like a chargehand could lawfully and verbally alter written instructions lawfully given by his supervisor especially considering that the chargehand was clearly an interested party as it was his duty to record the ullage levels.

The Appeals Committee erred in concluding it  did not “see” any motive as to why Chisaka would lie to the Disciplinary Committee.   Chisaka was the chargehand and in terms of the Procedure Manual, it was his duty to check ullage levels.  He clearly was an interested party who should not have been a witness.

Respondent opposes the appeal in its entirety.

Respondent referred me to various authorities for the assertion that my powers as an appellate court are limited in dealing with issues of fact.  I was urged to only interfere with findings of fact where a gross misdirection has been alleged and proved.  In my judgment I have taken heed of those sentiments in Treger Plastics (Pvt) Ltd v Woodreck Sibanda and Magondo SC 22/12 and Nyahondo v Hokonya & Others 1997 (2) ZLR 475 (SC).

I proceed hereunder to deal with  the grounds of appeal.  I will consider grounds 1, 2 and 6 together as they all question the authority of the chargehand to have verbally instructed appellant to check ullage levels and dips.

Grounds 1, 2 and 6

Appellant states that the chargehand Mr Chisaka was neither a

supervisor nor one of the employees specifically mentioned in section 7 (1) (d) (ii) of the respondent’s Code of Conduct.  This section lists a supervisor, appropriate local senior official, the Head of a Company or Board.  It is argued therefore that the chargehand could not therefore verbally alter the written instruction of the supervisor Mr Mandoka in the Shift deployment sheet wherein he had been assigned loading.  The procedures manual also indicates that appellant’s duties were loading and not ullaging.  Appellant goes further to allege that the chargehand was a junior employee and could not alter written instructions especially relating to a duty he himself had been assigned in the shift deployment form.

Respondent makes the point that whilst the standard operating procedures stated in clause 5.2.4 that the chargehand was responsible for checking ullage levels and dips, the same procedures did not exclude delegation as the chargehand was senior enough to delegate responsibilities.   Indeed appellant heeded this instruction in ullaging two wagons and in the record of proceedings he admits that he had been accepting such delegation.

The Oxford Advanced Learner’s Dictionary 7th edition defines a chargehand as a “a worker in charge of others on a particular job, but below the rank of foreman.”

In the circumstances I find no merit in appellant’s grounds 1, 2 and 6 of the appeal.  My position is buttressed by the contents of the job description, which though not produced before the two committees actually shows that the chargehand was appellant’s supervisor and that appellant’s duties included ullaging of loaded tankers.    Appellant was clearly aware of what his job entailed hence his admission to ullaging the two tankers.

Ground 3

Section 7 (i) (d) (ii) relates to wilfully failing, neglecting or refusing to comply with any conditions of service, the company’s rules and regulations or laid down policies or procedures, among others.

Appellant’s allegation is that no conditions of service were placed before both the committees to constitute evidence that appellant had contravened this section.

I agree with respondent that the Standard Operating Procedures form part of the terms and conditions of an employee (P Lloyd in Labour Legislation in Zimbabwe) I however understand appellant’s contention to be that on the basis of the Standard Operating Procedures and the Shift deployment form only, there was no evidence to impute that appellant had refused, failed or neglected to comply with a condition of service as these did not assign ullaging to him.  Instead the checking of ullage levels is assigned to the chargehand.

I note that the job description was not placed before the two committees.  It is the only document that explicitly assigns ullaging to appellant.

I therefore find that ground of appeal 3 succeeds.

Ground 4

Appellant alleges that he should not have been found guilty of falsifying an official document or electronic record of a company or causing the falsification of same.

The committees found that by allowing an independent agent to do the ullaging the appellant had wilfully caused to be recorded false or misleading information since he did not report that he had not monitored the wagons being loaded or ullaged.

The evidence shows that appellant did not deny having let the independent agent do ullaging.  He claims that the monitoring was the responsibility of the chargehand and depot supervisor.  He did not not see the loading chart to ascertain the amounts loaded.  This is in light of my finding above that the chargehand had delegated ullaging to appellant.  He failed to report that the had only ullaged two out of seventeen wagons.

In the above circumstances I find nothing outrageous in the Appeals  Committee finding on this issue and find no merit in this ground of appeal.

Ground 5

Appellant questions why he was found guilty of dishonesty in failing to account for property or moneys belonging to the company or in its lawful possession, in respect of which it was his duty to look after or safeguard.

In the disciplinary hearing appellant admits that his duties entailed opening the valves to begin the loading process.  Further I have already found he had been instructed to load and ullage rail tankers.  I find therefore that he was in temporary possession of the diesel.  By failing to carry out ullaging and allowing an independent agent to do so, thereby causing potential prejudice of 39 000 litres of diesel valued at USD51 000.00, appellant was correctly found guilty in this respect.

There is therefore no merit in this ground of appeal.

Ground 7

Appellant alleges that the chargehand was an interested party and should not have been called as a witness as the procedures manual gave him the responsibility of checking ullage levels.

On the other hand respondent makes the point that the committee was right after considering all the evidence before it in concluding there was no reason why Mr Chisaka would lie to the committee.

The evidence before the committee was appellant’s admission that he carried out the instructions of the chargehand, Mr Chisaka to load and ullage rail tankers.  It was this same evidence that Mr Chisaka gave to the committee.  No other evidence was led to sway the committee either way.

This ground of appeal does not assist appellant’s case and I find no merit in it.

In conclusion, there being no merit in appellant’s grounds 1, 2, 4, 5, 6 and 7, the appeal be and is hereby dismissed with costs.

H Mukonoweshuro & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners