Wellington Madade v National Oil Infrastructure Company of Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/275/2023
HARARE, 21 JUNE 2023
CASE NO LC/H/640/22
18 SEPTEMBER 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/275/2023

HARARE, 21 JUNE 2023	CASE NO LC/H/640/22 18 SEPTEMBER 2023

WELLINGTON MADADE	APPELLANT

NATIONAL OIL INFRASTRUCTURE COMPANY	RESPONDENT OF ZIMBABWE (PVT) LTD

Before the Honourable G. Musariri Judge:

For Appellant	- Mr E. Mubaiwa, Attorney

For Respondent	- Mr A. Maguchu, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment (for misconduct) by Respondent. The appeal is provided for by section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were quintuple thus,

“1. The Appeals Officer grossly erred in finding that the testimony of the Chief Executive Officer was not crucial to the charges when it was for the said Chief Executive Officer to specify the exact instructions given to the Appellant instead of relying on hearsay evidence on that crucial aspect of the case.

In so accepting the hearsay evidence without bothering to hear from the Chief Executive Officer the Appeals Officer erred in not finding that the Disciplinary Committee exhibited bias or, at the very least, justified such perception.

The Appeals Officer grossly erred and misdirected himself in upholding that appellant exposed the company to a potential loss of an amount of US$512,277-29 in the absence of any proof thereof, in the face of clear and undisputed evidence that the submission of the call back letter would not have resulted in the honouring of the bank guarantee and without taking into account the values of the items that had been delivered or the fact that the guarantee was specific to the supply and delivery of the items and not the labour.

The Appeals Officer erred in accepting the disciplinary hearing’s misplaced reliance and emphasis on the events that occurred on the 21st March 2022 which were simply a genuine attempt by the Appellant to ensure that the employer’s interests are safeguarded. The Appeals Officer accordingly erred in confirming the Appellant’s guilt to conduct which is inconsistent with the terms of his-employment contract on the basis

of the events of the 21st March 2022 within were a genuine follow up on the call back letter.

Alternatively the Appeals Officer erred in finding that the Appellant’s conduct was not consistent with his employment contract when the act complained of was so insignificant and inconsequence particularly when regard is had to the inconsequential nature of the instruction and the fact that Appellant went away on official business shortly after the purported instruction.”

These diverse grounds raise issues which I shall deal with ad seriatim.

1. WHETHER THE EMPLOYER IMPROPERLY RELIED ON HEARSAY EVIDENCE IN FINDING THE EMPLOYEE GUILTY:

The finding complained of it captured in the minutes thus “Count 2

Accused disobeyed a lawful order or instruction given to him by the Chief Executive Officer on the 4th of March 2022 to call back the advance Payment Guarantee from Metbank for USD 512,277,49. He was supposed to call it on that day. The instruction was given to him while the Acting Operations Director (AOD) was listening on the phone whilst it was on loud speaker in the Chief Executive Officer’s office. The AOD confirmed during the hearing that the accused was indeed given the instruction to call back the guarantee on 4 March 2022 by the CEO.

It is evident from the above that the case hinged on the instruction given by the CEO. The employer led evidence of the instruction through the AOD who heard it. The CEO did not give evidence. It is on that basis that appellant argues that the employer improperly relied on hearsay evidence. Appellant overlooked the provisions of section 27 of Civil Evidence Act Chapter 8:01. In terms thereof first-hand hearsay is admissible in a court of law.

The Acting Operations Director stated that he heard the instruction being issued by appellant by the Chief Executive Officer. That makes the Acting Operations Director’s statement first-hand hearsay which is admissible.

Whether the acts of misconduct were proven. Three key witnesses testified thus

“Mr Gwaindepi (AOD). The CEO called me and asked about the showground issue and whether we would call back the guarantee. I responded that there was a risk in that the contractor was still to do the installation. I suggested we would call back the guarantee following Monday which was the 7th March 2022 which was the expiry date. The Chief Executive Officer said that the recall letter was supposed to be sent that same day the 4th of March 2022. He then asked Mr Madade do you hear me and he responded by saying yes”.

“Mrs Zambuko (Legal Advisor): It was on 14 May 2022 Mr Madade came to my office and told me that he forgot to submit to the bank the recall that we drafted on 4 March 2022. I remember expressing (a) shock because he had sent us an email a letter he had

signed on 4 March 2022. I thought he had sent to the bank. I advised him to talk to the Chief Executive Officer and apologize.”

Mrs Mazo (Metbank Manager): On 21 March 2022 Mr Madade came to our Head Office and requested to see the Account Relationship Manager. I met him in our interview room. At the time he had a letter addressed to the bank referring to a bank guarantee which we had issued to NOIC. The guarantee had expired on 7 March 2022. When I enquired what he wanted from us he referred to the fact that the guarantee had expired and needed to be renewed. The letter was not signed. On the issue of dates expiring, he indicated that he was bringing the issue to our attention. On the issue of signature, I asked if he could sign the document on behalf of NOIC. He did so in my presence. I accepted the letter and stamped it. I gave him a copy.”

The evidence set out above shows that appellant was instructed to renew the bank guarantee on the 4th March 2022. He failed to do as instructed. On the 14 March 2022 he admitted to the Legal Advisor that he forgot to act as instructed. On 21st March 2022 Appellant belatedly went to the bank to renew the guarantee. The evidence shows on a balance of probabilities that appellant failed to obey a lawful instruction. His belated attempt to renew the guarantee belies his attempts to disown responsibility for the renewal of the guarantee. This Court is satisfied that appellant was properly found guilty of misconduct.

Appellant also sought to trivialise the consequences of his actions. Yet his acts led to the premature expiry of a bank guarantee worth over US$500,000-00. Thus he exposed his employer to prejudice in a humongous amount. His attempt to trivialise the offence was misguided.

Wherefore it is ordered that

The appeal be and is hereby dismissed, and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E