Vhusile Kasiyandima v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/847/14
HARARE ON 13th OCTOBER, 2014
CASE NO. LC/H/435/14
AND 19 TH
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/847/14

HARARE ON 13th OCTOBER, 2014			                     CASE NO. LC/H/435/14

AND 19TH DECEMBER, 2014

In the matter between

VHUSILE KASIYANDIMA			–	Appellant

And

CITY OF HARARE	             			–	Respondent

Before The Honourable R.F. Manyangadze, J.

Appellant  		:	In  Person

For Respondent        :	Mrs R. Chimhenga (Principal Legal Officer)

MANYANGADZE, J.

This is an appeal against Honourable Mr Z. Mtimtema’s arbitral award, handed down on 15th April 2014. The award upheld the dismissal of the Appellant from employment after the Respondent’s Disciplinary Committee found him guilty of misconduct.

The facts of the matter are that the Appellant was employed by the Respondent as a Motor Mechanic from December 1988. He was later promoted to the position of Charge Hand (Motor Mechanic). Sometime in November 2011, the Appellant referred a Council Vehicle, a Renault Truck registration number AA 5308, to Ian Dickie Parts (Pvt) Ltd’s workshop for repairs. The vehicle was referred under requisition number HW No. 00299.

After the vehicle was delivered from Ian Dickie Parts, in February 2012, the Appellant confirmed that the parts indicated on Ian Dickie’s invoice had been fitted on the Council vehicle. The invoice showed 14 parts valued at US$9 400.00. The Appellant signed a Harare Water Store Department Goods Received Note to confirm that the invoiced motor parts were fixed onto the motor vehicle. He went on to pass the necessary invoice for payment, which in this case was invoice number 1006.

However, before payment was processed, Council received information to the effect that some parts on the invoice had not been fitted onto the vehicle. The parts that had not been fixed were valued at US$2 526.00. This is the amount Council would have been prejudiced of had it processed payment on the invoice confirmed and passed for payment by the Appellant.

The Appellant was charged with misconduct under the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct), Statutory Instrument 171 of 2010. The misconduct allegation was that;

“his act, conduct or omission was grossly inconsistent with the fulfillment of express or implied conditions of his contract of employment when he failed to verify vehicle parts supplied by Ian Dickie Parts (Pvt) Ltd as he confirmed that fourteen (14) instead of nine (9) motor vehicle parts where fitted (received) on a Council vehicle registration number AAE 5308 Renault.”

The Disciplinary Committee found the Appellant guilty as charged, and imposed a penalty of dismissal, on 9th August 2013.

The Appellant lodged a complaint of unfair dismissal with the Harare Municipal Undertaking National Employment Council. A Certificate of No Settlement was issued and the matter was referred to arbitration, leading to the arbitral award which is the subject of this appeal.

The grounds of appeal are stated as follows:

“1.	The Honourable Arbitrator grossly misdirected himself in finding of guilty when no specific or implied term of contract had been breached. The Appellant only signed to acknowledge receipt of the motor vehicle in sound and good condition. There was no implied term of contract or a specific term of his contract which required him to check on the specific parts on the vehicle.

2.	The Honourable Arbitrator grossly misdirected himself in finding that the Appellant’s conduct breached the trust bestowed on him when in fact no evidence was led to prove that the Appellant had connived with Dickie Parts (Pvt) Ltd.

3.	The Honourable Arbitrator grossly erred in holding that a penalty or (sic) dismissal was appropriate especially when regard is had to the following:-

the labour law principles encourage rehabilitation penalties than punitive penalties

there was no actual prejudice suffered

there was no aggravating circumstances and the mitigatory circumstances of Appellant stand uncontroverted.”

One fundamental issue emerges from a perusal and consideration of the grounds of appeal, and the written and oral submissions made by the parties. The issue is whether the Appellant had responsibility for the discrepancy in the invoiced vehicle parts and the parts actually supplied. It appears the Appellant’s averment is basically that his responsibility ended on acknowledging that he received the motor vehicle in sound condition. It did not extended to verifying the quantity of the parts supplied. It was not an implied term of his contract to do so.

The Respondent, on the other hand, insists that the Appellant had responsibility to check and verify the parts supplied. It relied on his expertise for such verification. By endorsing the Goods Received Note and passing it for payment, the Appellant placed the Respondent at the risk of paying US$2 526.00 for goods not received.

The Respondent made reference to some portions of the record of Disciplinary Proceedings, which indicated that the Appellant was aware he should have checked the invoice against the parts supplied. He did not do so, on the basis that he trusted Ian Dickie Parts as a reputable company. The following exchanges are instructive: (pages 58 to 60 of the record).

“DEFENCE	The reason why you are being charged is that you appended your signature

on a document labeled Harare ‘Water Stores Goods Received Note” what did it mean when you signed the document?

ACCUSED 	When I signed the document to me it meant Ian Dickie had done everything and stores was in concurrence with the quotation by Ian Dickie.

DEFENCE	Did you also look at the invoice by Ian Dickie when you examined the vehicle?

ACCUSED 	Yes

DEFENCE	Did you notice that some of the services rendered by Ian Dickie such as the battery and a new starter which you say you noted were not appearing on the invoice?

ACCUSED	Yes

DEFENCE	Did the situation present any problems to you?

ACCUSED 	Ian Dickie has been previously repairing this vehicle so we had to built a good relationship and I thought maybe he had foregone some of the charges for the extra work that he had done on the vehicle?

DEFENCE	Do you wish to state anything further in your defence?

ACCUSED 	Ian Dickie usually does good jobs for the city council therefore we had a good working relationship. So  I did not suspect that he would overstate the quotation because previously he had done a wonderful job on the vehicle building it from scratch, even offering his spares in doing so.

DEFENCE	So in other words you signed the Goods Received Note in good faith basing on that trust?

ACCUSED	Yes, also the user section gave me a positive answer when I gave them the chance to test the vehicle.”

These answers were given in response to questions from Appellant’s own representative, during examination-in-chief.

The Appellant’s answers, in my view, show that he appreciated there was a need to check the parts supplied. He did not do so because he trusted the company he was dealing with. He endorsed the Goods Received Note on the basis of good faith. He did not bother to check as he thought Ian Dickie Parts could not inflate their invoice.

The Arbitrator found that failure to verify the goods supplied was inconsistent with the implied terms of the Appellant’s contract of employment.  The pertinent portion of the arbitral award reads as follows;

“Basing on his own admission, I am of the view that claimant failed to carry out his duty of care or good faith thereby committing an act which was inconsistent with the implied terms of his contract of employment. In Basson et al ‘Essential Labour Law 5th Edition, Labour Law Publication, 2009 p43, the learned authors stated as follows:

“the employee, on entering into a contract of employment, implicitly guarantees that he or she is capable of doing the work. If a person appointed as a foreman proves to be incapable of doing the necessary administrative tasks associated with that position, the employer may terminate the contract of employment for that reason”.

Indeed in this matter claimant failed to do the verification of the vehicle parts and as a foreman respondent relied on his advice to ascertain the parts supplied and to process the payment thereof.

The rest of the arguments that there was a vendetta between claimant and the 1st witness and that there was no manual of procedures will not in anywhere help claimant’s claim because my decision is based on his own version. He admitted that the goods he signed for were overstated and he did not exercise his duty of reasonable care owing to trusting Ian Dickie. The failure to take such reasonable care could have resulted in the loss of US$2 526.00 by the Respondent had it not been the act of a whistle blower that cause investigations. I therefore find the dismissal to be fair.”

In casu, the Appellant was promoted to the position of Charge Hand. He was the Foreman. He could not, in that position confine himself only to the duties of  mechanic, and abdicate the administrative responsibilities that inevitably come with the higher position of foreman. He could not cling to the benefits and reject the duties. He would be approbating and reprobating. He cannot be allowed to do so.

In the circumstances, the Arbitrator properly upheld the conviction of the Appellant. I find no basis for interfering with it.

On penalty, the Appellant’s abdication of responsibility nearly cost his employer an amount of US$2 526.00. It does not matter that the expense was not actually incurred. There was a real risk it could be incurred. The loss was averted by the timely intervention of an undisclosed informer.

The point is that the Appellant was entrusted with responsibility, which responsibility he did not take seriously. Some of his remarks during oral submissions reflected this lack of seriousness if not arrogance, such as:

“For them to give Ian Dickie the contract they were trusting the company. I was not the one who picked Ian Dickie to supply Harare.”

The Appellant was infact shifting the blame on his employer. It was none of his business that the employer chose that particular supplier, he seems to be saying.

The Respondent took a very dim view of Appellant’s conduct. This is clearly reflected in paragraph 31 of its Heads of Argument:

“Breach of trust by the Appellant shook the very foundations of the contract of employment between the Appellant and the Respondent and it rendered the employment relationship untenable.”

In Innscor Africa v Lettron Chimoto 6/12 SC, MALABA DCJ made it clear that where misconduct goes to the root of the employment contract, it matters not what amount of prejudice is involved. In that case, it was not even theft of the pizza, valued at only US$4.00, that was in issue. It was breach of the procedures required in its production. It is such breach which often creates opportunities for theft or fraud. The DCJ stated that;

“……………………………… The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers. The finding that the pizza was only $4.00 was of no consequence. The offence committed involved a betrayal of trust and confidence reposed in the respondent by the appellant thereby going to the root of the relationship between the employer and employee. …………………………….”

Thus in casu, the fact that the Appellant is a first offender, has served Council for a long time, and that there was no actual prejudice, does not help him much.

Sentencing discretion is primarily the prerogative of the employer. There has to be serious misdirection for an appellate court to interfere with a penalty of dismissal, where the employer regards the misconduct as serious. In this regard the Court, in the Chimoto case, supra, further stated:

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court. In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the Arbitrator. The Labour Court merely substituted its own discretion for that of the Arbitrator, without finding any recognizable misdirection on the part of the Arbitrator.”

In the instant case, the Court finds no basis for interference with both the conviction and the sentence imposed by the Disciplinary Committee, which were upheld by the Arbitrator.

In the result, it is accordingly ordered that the appeal be and is hereby dismissed in its entirety with costs.