Vimbai Mbundure v Old Mutual Investments Group Property Investments Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/83/13
HELD AT HARARE 15TH MARCH 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/83/13

HELD AT HARARE 15TH MARCH 2013			CASE NO LC/H/227/12

VIMBAI MBUNDURE					Appellant

OLD MUTUAL INVESTMENTS				Respondent

GROUP PROPERTY INVESTMENTS

ZIMBABWE (PRIVATE) LIMITED

Before The Honourable G Musariri, President

For Appellant		Mr G Machingauta, Attorney

For Respondent		Mr I Chagonda, Attorney

MUSARIRI, G:

The following facts are common cause:

1.

Appellant worked for Respondent as a Property Manager.

2.

At the material times she was responsible for the Eastgate complex in Harare.

3.

The complex contained office space, a food court and retail business.

4.

Respondent leased space at the food court to a company called Opticare.

5.

Opticare then set up and ran a business called Captain’s Grill at the food court.

6.

Appellant’s husband Mr Allan Vutuzah,  was connected to Opticare.

7.

The connexion led in due course to charges of misconduct being laid against Appellant by Respondent.

8.

The charge stemmed from Respondent’s Code of Conduct which, in paragraph 4.8.9, creates an offence of,

“failing to declare an interest in any transcation involving Old Mutual in circumstances where a personal advantage for a close relative or friend could be gained from the transaction.”

9.

A hearing was held at the conclusion of which the Hearing Officer returned a guilty verdict together with a penalty of dismissal.

Appellant’s case was aptly set by her attorney in his Heads of Argument as follows,

“8.	The Respondent erred in failing to appreciate that even with the so

called non disclosure held against the Appellant, nonetheless, there was no actual or potential conflict of interest proved against Appellant, either by reference to the working definition of conflict of interest as given by Appellant in her defence or that given in the Respondent(s) conflict of interest policy version (thus punishment under the code is reserved only for non disclosures that results in actual or potential conflict) and generally for employee conduct that actually harm or have the potential to harm the interests of the employer and not those that do not have the same effect.

9.	The Respondent committed the error at law in regarding the

conduct preferred against Appellant as a strict liability offence where punishment follows automatically on proof of occurrence of an event, regardless of the state of mind of the employee, in this case absence of any guilty intent or improper motive, (Respondent accepted that no dishonesty, fraud, theft or corruption could be proven against Appellant) prompting its attitude that the non disclosure was adequate for its purposes.”

Respondent’s attorney in his Heads Of Argument, countered thus,

“9.	That the Appellant knew that there was need to disclose is clearly borne out  by the fact she made a declaration appearing at page 34 of the record as well as on page 38 of the record where she simply disclosed that her spouse runs a consultancy service company.  On the Declaration at page 34 she merely declared that her husband was a Director in Walladan Consultancy Services.

10.	With greatest respect, she did not declare an interest in the transaction. What she declared was the profession of her husband and not an interest in a particular transaction.

In fact, the fact that the declaration was clearly not sufficient to meet the specific demands of the requirement is clearly admitted by her when she states as follows:  In 2011, I had declared that Allan is into consultancy but unfortunately did not declare the details of the arrangement which I sincerely apologise for.”

I am persuaded by Respondent’s arguments.  The definition of offences relates to an interest in a transaction involving Old Mutual.  Stating that her husband had an interest in the consultancy called Walladen was inadequate.  Why?  This was because Walladan had a deal with Opticare who leased premises at Eastgate from Respondent.  The deal entailed Appellant’s husband actually running Opticare’s outfit called Captain’s Grill.  This was a significant interest in the lease or transaction involving Old Mutual.  This exposed the conflict of interest scenario when one considers that Opticare got the lease at the time when Appellant was the Property Manager at Eastgate.  She was responsible for all of Respondent’s properties at Eastgate.  People who saw Appellant’s husband running, or is it managing, Captain’s Grill would be led to think that Appellant wrongly or corruptly pushed for the award of the lease by Respondent to Opticare.  I have no doubt that the guilty verdict returned by the Hearing Officer was justified in the circumstances.  I am fortified in this view by the dicta of Malaba JA in the matter of Zimasco v Zakeyo 2007 (1) ZLR 132 (S) which reads, at p 140c

“Once it is established that, without disclosure, an employee entered into an engagement with a party doing business with the employer where he has a personal interest which is likely to conflict with the interests of his employer no consideration is to be had of other matters raised as part of the defence to the charge of misconduct.”

Appellant also argued that the penalty of dismissal was too drastic.  A perusal of the proceedings shows that the Hearing Officer outlined both the aggravating  and mitigating factors.  He then ruled that the “appropriate sentence” was dismissal.  It is not the function of the Labour Court, sitting as an appellate court to second-guess the decisions of lower tribunals.  That this Court might have imposed a lesser penalty is not sufficient.  What is required is proof that the tribunal erred or misdirected itself.  In this case it considered the pertinent factors, mitigating and aggravating, the offence.  It came to its conclusion on penalty.  I am satisfied that no reversible error or misdirection was proved.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT