Tongai Machona v Old Mutual Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/605/2013
HARARE ON 4 NOVEMBER, 2013
CASE NO. LC/H/51/2011
AND 22 NOVEMBER, 2013
JUDGMENT NO. LC/H/605/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/605/2013

HARARE ON 4 NOVEMBER, 2013			CASE NO. LC/H/51/2011

AND 22 NOVEMBER, 2013

In the matter between

TONGAI MACHONA		     			–	Appellant

And

OLD MUTUAL LIMITED					–	Respondent

Before The Honourable Hove, J.

The Honourable Manyangadze, J.

For the Appellant: 		Mr K. Gama (Legal Practitioner)

For the Respondent: 	Mrs R. Matsika (Legal Practitioner)

MANYANGADZE, J.

This is an appeal against the decision of the Respondent’s Disciplinary Committee, which found the Appellant guilty of misconduct and dismissed him from employment.

The Appellant was employed by the Respondent as an Accounts Clerk.  He was suspended from duty on 16 December 2010 for alleged acts of misconduct committed during the period January 2010 to November 2010.  The misconduct involved overstating and unjustifiably claiming overtime hours.

On 17 December 2010, he was formally charged with misconduct in terms of the Respondent’s Code of Conduct.  The misconduct charge was contravening Section 4.8.3 of the Old Mutual Code of Conduct (Dishonesty, Theft, fraud and other related offences), which consists in:

“Deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing.”

The Disciplinary Committee held its hearing on 23 December 2013, and Appellant’s dismissal was confirmed by the Works Council on 31 December 2010.  The dismissal was upheld by the Appeal Hearing Officer on 3 January 2011.

Having exhausted the domestic remedies available, appellant then lodged his appeal with the Labour Court.

The grounds of appeal are outlined as:

The Respondent violated provisions of the Code of Conduct by suspending the appellant without convening a meeting with him as required by clause 5.4.5. of the Code.

The Respondent did not comply with the provisions of clause 5 of the Code of Conduct.

The Respondent erred by dismissing the Appellant in the absence of proof, on a balance of probabilities that the Appellant had committed the misconduct alleged or any other misconduct.

The Respondent did not make a finding that Appellant deliberately gave untrue, erroneous or misleading information or testimony.

The first and second grounds of appeal raise procedural issues.  The third and fourth grounds go to the merits.

On the procedural aspect, Appellant contended, in his heads of argument, that the requirements of the Code of Conduct were not complied with and the Disciplinary proceedings were therefore a nullity.  Appellant draw the court’s attention to clause 5.4.5. of the Code of Conduct which deals with suspension pending dismissal.  It requires that a sort of preliminary hearing be conducted before an employee is suspended.

In order to fully appreciate what the clause entails, it must be reproduced verbatim.  It reads as follows:

“The Divisional Manager convenes a meeting with the employee, his workers’ committee representative, his super-senior, the Personnel Development Adviser and witnesses…”

Appellant’s contention is that these requirements are obligatory and have the effect of rendering disciplinary proceedings a nullity if they are not complied with.  Clause 5.4b is couched in peremptory terms:  “where an employee has committed an offence for which suspension pending dismissal is a penalty … the following procedure must be followed to arrive at the decision to suspend the employee …”

The Appellant referred the court to several decided cases where failure to adhere to laid out procedure was considered fatal to disciplinary proceedings. Among these cases are those of Mugwebi v Seed Co. Ltd & Anor 2000(1) ZLR 93(S) and Philemon v OK Bazaars S-22-95.

The fundamental point argued by the Appellant is that failure by the Respondent to conduct a preliminary hearing before ordering Appellant’s suspension makes such suspension unlawful. Consequently, it vitiates any disciplinary proceedings conducted following such suspension. The proceedings which resulted in Appellant’s dismissal should therefore be declared a nullity and the matter be disposed of on that basis.

The Respondent has countered Appellant’s challenge of procedural irregularity mainly on two grounds. Firstly, it argues that the suspension was with pay, and therefore does not call for compliance with clause 5.4.5. of the Code of Conduct.  The Appellant suffered no prejudice by reason of the suspension, as he was on full pay and benefits.

Secondly, Respondent contents that procedural technicalities should not be the basis on which disciplinary disputes are decided.  Such disputes should be determined on the merits.  In this regard, Respondent referred the court to the cases of Dalny Mine v Banda 1999(1) ZLR 220(S) and Air Zimbabwe P/L v Chiku Mensa and Mavis Marweye SC 89/04.

On the first point i.e. that a suspension preceded by a preliminary hearing is a suspension without pay, Respondent drew the court’s attention to clause 5.4.7. of the Code of Conduct, which provides:

“When the Divisional Manager is convinced that the employee committed an offence which warrants suspension pending dismissal, he consults with his Assistant General Manager before telling the employee in writing that he is suspended. He specifies the effective date of the suspension. He has to state that the suspension is without pay …” (emphasis added by Respondent).

Respondent contends that the obligatory procedure outlined in clause 5.4. is intended to deal with suspensions without pay.  If a suspension is with pay, it falls outside the ambit of this clause.  The suspension can therefore not be faulted on the basis of non-compliance with the requirements stipulated therein.

There seems to be considerable merit in Respondent’s argument.  There is an express and explicit requirement that the suspending Divisional Manager must mention or specify that the suspension is without pay.  If the issue was inconsequential, the Divisional Manager would simply have been required to specify whether the employee was being suspended with or without pay.  Instead, there is specific mention that it must be stated the suspension is without pay.  It then becomes a question of interpretation.  The express mention of “without pay” excludes “with pay”.

The onerous requirements of clause 5.4, it seems to me, were intended to cover a suspension without pay, having regard to its drastic nature.

Be that as it may, procedural irregularities must be considered in the context of the prejudice they are likely to cause.  I will advert to this aspect later in the judgment.

The Appellant addressed his second ground of appeal in his supplementary Heads of Argument.  It is not clear whether it was an oversight that the Heads of Argument do not address this issue.

In his supplementary Heads of Argument, Appellant itemizes numerous procedural issues which he holds up as a “flagrant” violation of the Code of Conduct (paragraphs 117-139 of the Supplementary Heads of Argument).  These procedural details include role of the immediate supervisor, super-senior, Divisional Manager, and Works Council in the various stages of the disciplinary proceedings.  Appellant’s attack covers the whole gamut of the disciplinary process from the initial report, suspension, hearing and dismissal.

Disciplinary authorities must indeed be diligent and take necessary care to comply with the provisions of Codes of Conduct or statutes that govern them.  Failure to comply may vitiate the proceedings.  It is however, not in all cases that non-compliance will constitute fatal irregularity.  A number of factors come into play, such as the extent of the delay from the date of suspension up to the time the disciplinary hearing is held and observance of the fundamental principles of natural justice.

In casu, Appellant was suspended on 16 December 2010.  The suspension was with pay.  The disciplinary hearing was held on 23 December 2010.  The decision of the Disciplinary Committee was confirmed by the Works Council on 31 December 2010, and the dismissal was upheld by the Appeal Hearing Officer on 3 January.  A microscopic examination of the entire process will most likely reveal some gaps at some points.  It is a question of whether such gaps constitute prejudicial and fatal irregularities.  Whilst endeavoring to achieve both procedural and substantive justice, one must avoid a slavish adherence to procedural technicalities, which may end up subverting substantive justice.

It appears the trend is to determine disciplinary cases on the merits rather than on procedural technicalities. (see Air Zimbabwe v Chike Mensa SC 89/04). There will of course be situations where the procedural irregularities are so prejudicial and material that the case turns on them.  In Nyahuma v Barclays Bank (Pvt) Ltd 2005(2) ZLR 445(S) it was stated:

“It is not all procedural irregularities which vitiate proceedings.  In order to succeed in having proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

In the present case, I am not convinced that there were fatal irregularities that prejudiced the Appellant in the conduct of the disciplinary proceedings.

On the merits, it is trite that the standard of proof in disciplinary proceedings, just like in all civil cases, is proof on a balance of probabilities.  Appellant avers that the Respondent failed to discharge its onus as Appellant rebutted all allegations leveled against him.

This being an appeal, the question that has to be determined is whether the Disciplinary Committee seriously misdirected itself in accepting Respondent’s evidence against the Appellant.  In order to satisfactorily resolve this question, one must look at the evidence the Disciplinary Committee relied on and the Appellant’s rebuttal.

The Respondent asserts that the “record of proceedings is replete with evidence linking the Appellant to the offence.”  (para 4.4 of Respondent’s Heads of Argument). The investigation method was quite simple.  It basically involved a comparison of the overtime claim forms which were completed by the Appellant with the access control report from the security department.  The hours actually worked, as reflected on the access control report, were less than the hours claimed, as reflected on the overtime claim forms submitted by the Appellant.

The evidence that was considered by the Disciplinary Committee is contained in the minutes of the hearing (pages 16-18 of the record).  Part of the evidence, which in fact appears to be an essential part of the evidence, is the Committee’s summary and analysis of Mr Zvenyika, the complainant’s evidence.  This evidence covers pages 1 and 2 of the disciplinary hearing minutes.  The summary which is in narrative form, will be clearer and easier to follow if it is laid out in tabular form as submitted in complainant’s written report.  The table, contained on pages 44-45 of the record, is reproduced as follows:

OVERSTATED HOURS

UNJUSTIFIED CLAIMS

In his findings and analysis of the evidence, the hearing officer who chaired the Disciplinary Committee found that Appellant admitted claiming unjustified overtime on the following dates:

7 January 2010

8 Janaury 2010

12 April 2010

20 April 2010

4 August 2010

Unjustified overtime is claimed were an employee did not stay behind for overtime on the dates concerned.

The Hearing Officer also found that Appellant submitted inflated overtime claims on:

11 January 2010

12 January 2010

13 January 2010

27 April 2010

20 May 2010

24 May 2010

27 July 2010

8 July 2010

12 July 2010

13 July 2010

These are the days Appellant claimed he was dropping off staff at their respective residences.

It was the hearing officer’s finding that Appellant tried to withdraw his November 2010 unjustified claim only when he learnt that management was carrying out a verification exercise of his overtime claims.

The court finds no basis on which to fault the factual findings of the Disciplinary Committee.

The court notes that Appellant filed his Heads of Argument on 6 September 2011.  He then filed Supplementary Heads of Argument on 27 June 2013.  The supplementary Heads of Argument, which are quite lengthy, much lengthier than the Heads of Argument, raise issues of Appellant’s admissions, overtime claims by other employees and overtime claims by Appellant not included in the charges preferred against him.

In my view, the issues raised in the Supplementary Heads of Argument do not advance Appellant’s defence further than the initial Heads of Argument.

On the issue of the admissions done in the disciplinary hearing, there is no reason why these were not rebutted from the outset.  Appellant cannot at this stage aver that such admissions were never made.  They were not even part of his grounds of appeal, despite the disciplinary authority having relied on them in finding him guilty.  Appellant is reasonably suspected to have made this issue part of his grounds of appeal, if not the main ground of appeal.  This is a critical issue, which together with the access control report and overtime claim forms, formed the core of the Respondent’s case against him.

I agree with Respondent’s submission based on the case of DD Transport (Pvt) Ltd v Abbott 1988(2) ZLR 92(S), that Appellant cannot at this stage seek to contradict his admissions.

Still on this issue, Appellant’s case is not made better when one looks at his fourth ground of appeal.  On this ground, he impugns the disciplinary hearing on the basis that “respondent did not make a finding that Respondent (sic) DELIBERATELY gave untrue erroneous or misleading information …”

From this, it appears the Appellant is not disputing the inflated overtime, but is instead proffering an explanation that it was done in error.  The point Appellant is making implies that the inflations were done, but without mens rea.

Appellant gives further emphasis to this ground of appeal in his supplementary heads of argument.  In paragraphs 6 to 9 he points out that Appellant should not be penalized for making “innocent errors”.

Indeed humans are prone to blunder, due to a variety of factors.  Such factors often include fatigue, rush to meet deadlines, exacting demands of superiors and general pressure of work.  Taking all factors operating in a given situation, the blunders committed may very well be innocent and excusable.

In the present case, what is disquietening is the magnitude and persistence of the “innocent errors”.

In this respect, it was argued on behalf of the Respondent, and quite correctly in my view that inflation of a total of 47 hours cannot be taken as a mistake.  The explanation is not credible, that over the period in question, Appellant consistently make the same mistake of claiming hours he was not entitled to.

The other aspect argued in the supplementary heads of argument was that some overtime claims relating to Tracy Maruta and Sharon Chidzere were overlooked.  The point Appellant is trying to bring out is that the access control report should not be relied on.  It is not credible as some employees got away with the same mischief.  If it was thorough and credible it should have netted all the culprits.

This line of argument appears to be of questionable relevance to Appellant’s defence.  It implies that if some perpetrators of a crime escape undetected, the ones who have been arrested should also be set free.  Perhaps the analogy of perpetrators of crime may seem extreme.  Bringing the same analogy to the more appropriate scenario of disciplinary proceedings, if two or more workers commit acts of misconduct, and only one is charged, he surely cannot be absolved from liability on the basis that the investigation failed to detect the misconduct of his colleagues.  See Lancashire Steel (Pvt) Ltd v Elijah Zvidzai Mandevana & Ors SC 29/2005.

In my view, the Disciplinary Committee did not misdirect itself in finding the Appellant guilty of the misconduct he was charged with.

I note that nothing much has been said on the penalty of dismissal, both in the initial heads of argument and the supplementary heads of argument.  Appellant has concentrated on the question of liability.  By inference, it seems he is conceding that in the event that he is found liable, he has no meaningful submissions to make on penalty.  Indeed, the acts of misconduct in question are acts of dishonesty.  The misconduct therefore goes to the root of the employment relationship and was appropriately met with a penalty of dismissal.  In the result, it is ordered:

The appeal be and is hereby dismissed in its entirety.

Each party shall bear its own costs.

………………………………………………………..

Hon. Manyangadze, J.

…………………………………………………………..

Hon. Hove, J.

Gama and Partners Legal Practitioners, Representing the Appellant.

Wintertons Legal Practitioners, Representing the Respondent.