Zimbabwe Agricultural Society v Tawanda Mutsambi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/524/2016
HARARE, 15 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/524/2016

HARARE, 15 JULY 2016			     	    CASE NO. LC/H/142/16

AND 9 SEPTEMBER 2016

In the matter between:-

ZIMBABWE AGRICULTURAL SOCIETY			Appellant

And

TAWANDA MUTSAMBI						Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr E T Moyo (Legal Practitioner)

For Respondent	Mr O Kondongwe (Legal Practitioner)

HOVE, J:

The respondent in this case was employed as a human resources manager by the appellant.

He was charged with the offence of falsifying employment records of one Robert Mallet by drawing up an employment contract for the said Robert Mallet without using his actual name but using an alias, Robert Matenda.

The employer argued that the respondent’s intention was to conceal the identity of the employee in question who was the then Chief Executive Officer’s son.

He was found guilty and the Presiding authority imposed the penalty of final written warning.

The employer was aggrieved by the penalty and noted an appeal to a Labour Officer. The basis of the appeal was that the disciplinary authority grossly misdirected itself with regards to the penalty by failing to dismiss the respondent.

The employer noted an appeal against the Labour Officer’s ruling and contends in terms of its grounds of appeal that the Labour Officer exceeded her mandate and granted relief in respect of which there was no cross appeal and further that she grossly misdirected herself in failing to find that there was serious misdirection in the penalty arrived at by the initial disciplinary authority given the seriousness and nature of the misconduct for which the respondent had been convicted.

Both the initial hearing authority and the Labour Officer were of the opinion that the offence did not warrant the penalty of dismissal.  It may be necessary to consider the facts of the matter and I can do no better than to quote the former chief executive officers affidavit which outlines the facts and general background of how the offence was committed.

“I Leslie Charles Mallet ID number 63-742473W00 do hereby make oath and swear:

Until February 2014 I was employed by the Zimbabwe Agricultural Society as chief executive officer.”

In early 2012 the society agreed to purchase an amusement Park from South Africa.  Prior to arrival of the amusement Park, the Society conducted interviews for the post of Operations Manager.

One of the Individuals interviewed was Mr Frank Hussey.

The panel agreed that Mr Hussey was not suitable for the post of Operations Manager.  Alternatively he was to be offered the opportunity to run the amusement Park.

The Panel tasked the Human Resources Manager (Mr T Mutsambi) and myself to discuss with Mr Hussey position of running the Amusement Park.

Mr Hussey agreed to take up the position but he would be formally employed once the Amusement Park equipment was in the country.  Mr Hussey was to be paid at the rate of $2 500 (two thousand five hundred dollars) per month, less deductions.

In August 2012 we were advised that the Amusement Park would arrive just  the 17th August 2012.

I advised the (Human Resources Manager) later advised that Mr Hussey had advised that he was no longer available since he had accepted other employment.

The Amusement Park arrived at Exhibition Park on 17th August 2012 which was the first day of the Harare Agricultural Show.

There was a requirement to assemble the equipment as fast as possible and maximize the income during the show time.

I called a meeting with the Human Resources Manager and the Finance Manager (Mrs S Levy) to discuss the way forward.

In this meeting I suggested to both of them (Human Resources and Finance) that my son Robert was available but the decision was up to them.

I also advised them that I did not want to be involved and I did not want to see Robert’s name anywhere.

Robert was recruited on the basis that he had the Mechanical know how and was able to communicate with the sellers, who were mainly Afrikaans speaking.  Robert would be assisted by an electrician and staff that had been recruited through Mr C Looker. Robert was to be paid $2 000 (two thousand dollars) per month less deductions.

Those individuals that had been recruited were known to Mr. Looker, since they had previously, been employed by canard Metal Box (a company which employs Mr Looker).

I was aware that Robert was not being identified as Robert Mullett according to the instructing I had given.  The Finance Manager and I authorized his payment.

The Society did not suffer any financial prejudice out of this recruitment.

Robert was aware of this arrangement and would receive his salary through Finance Department of the Society.

In February 2014, I resigned from the position of Chief Executive Officer of Zimbabwe Agricultural Society and Mr Eben Makonese (chairman of the executive committee) assured the acting chief executive position.

At a meeting with Mr Makonese, in March 2014 at Cafe Expresso, Mr Makonese advised me that he knew that I had resigned the position to protect the staff involved but he could not “put up” with Mutsambi and he would be dismissing Mr S. Chapman as Operations Manager.

“Thus done and signed at Harare this day of 11th December 2014.”

The above is the background and the circumstances that led to the commission of the offence.

From my reading of the record and listening to the submissions, there appears not to have been any problems with the fact that Robert was recruited.  The only issue was that he had been referred to, not by his actual name but had used an alias i.e. Robert Matenda.

The respondent did not deny that he used an alias and not Robert’s actual surname.  He however argued that he was acting under instruction of the chief executive officer.

Whether or not the Labour Officer misdirected herself

The first issue raised on appeal is that the Labour Officer misdirected herself when she granted relief which was outside that which had motivated by the grounds of appeal especially where there is no cross appeal.

As correctly pointed out by the respondent, this is a ground of review and not an appeal ground.

Procedural issues like the one raised in casu, that the Labour Officer exceeded her mandate, ought to be raised in an application for review and not in an appeal.  In an appeal, the litigants will essentially be challenging the decision itself and not the manner of arriving at the decision or other reviewable issued like the allegation that an arbitrator has exceeded her mandate.

In his book “a guide to Zimbabwean Administrative Law” 3rd edition 1998 at Page 14, Professor Feltone expounds this as follows;

“The main differences between the two remedies is that in an appeal, what is in question is the substantive correctness of the original decision whereas on review, the court is not delving into the substantive correctness of the decision but only determining whether there was any action which is reviewable because it was ultra vires powers allocated to the Tribunal.”  See Muringi vs Air Zimbabwe Corporation and Anor 1997 (2) ZLR 488 (SC) at 490.

In this first ground of appeal, the appellant complains that the Labour Officer exceeded her powers by delving into aspects which were not brought before her on appeal.  The correct way to challenge this is by way of a review application and not an appeal.  That ground of appeal is thus improperly before the court which is dealing with an appeal.  The ground of appeal is dismissed for being improperly before the Court.

See in this regard the case of Pioneer Transport (Pvt) Ltd v Delta Corperation Ltd & Anor HH 18/2012.

Whether or not the Penalty was appropriate:

The next issue to consider is whether or not the Labour Officer and the disciplinary authority were correct in taking a less serious view of the misconduct in the face of the facts of this matter.

Both the initial disciplinary authority and the Labour officer considered that the alleged act of misconduct was induced by the employer itself.  The initial disciplinary authority considered the facts and came to the conclusion that the alleged act of misconduct was an instruction by the chief executive officer made with full knowledge of the other members of the executive body of the appellant.  The respondent was not deceiving the appellant as the chief executive officer and the finance chief were aware of this instruction.  There was no element of deceit under those circumstances the initial hearing officer considered that the penalty of dismissal would be manifestly unjust and grossly unreasonable and disproportionate given the circumstances.

This issue of what penalty to impose was within her discretion.

The issue of penalty was brought up on appeal before the Labour officer, who also was of the view that the circumstances of the matter did not warrant dismissal.  She found that the misconduct against the respondent was not gross.  She considered that there were a great number of factors which weighed in mitigation and which could not be ignored.  The Labour Officer concluded that dismissal was to be grossly unreasonable, unjust and disproportionate given such circumstances.

In considering the matter, this court must consider two points of law;

That the issue of penalty or sentence is a discretionary matter and an appellate court cannot interfere unless it is shown that the tribunal a quo grossly misdirected itself in the exercise of its discretion; and

The fact that an appellate court will not lightly interfere with findings of fact in view of the advantages enjoyed by the Trial Court in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial, an appeal court is thus generally reluctant to disturb the findings of a trial court o questions of fact.

I am not of the view that this court should interfere with the factual finding that dismissal was not warranted as indicated, issues of sentence are discretionary and cannot be lightly interfered with unless it can be alleged that in the exercise of their discretion, there was gross unreasonableness or irrationality.  In casu, there is nothing to point to gross irrationality or the fact that the trial court acted unreasonably in having a less serious view of the offence committed by the employee.

That sentence is an issue that is firmly in the court of first instance’s discretion, is a position of law that is now firmly entrenched and an appellate court cannot interfere.  See in this regard.

Toyota Zimbabwe v Posi SC 55/07

Innscor Africa (Pvt) Ltd v Letwin Chimoto SC 6/12

Tregers Plastics (Pvt) Ltd Woodreck V Sibanda & Anor SC 22/12

Further and in any event, it is an accepted principle of law that an appellate court can only upset the findings of fact by the Labour Officer if the exercise of her discretion was irrational in the light of the evidence placed before him.

See in this regard Tirivangana v University of Zimbabwe SC 21/13

This court cannot interfere with findings of facts were no gross unreasonableness, capriciousness and malafide are provided.

See also the case of Coh-Coh Enterprises (Pvt) Ltd vs Mativenga & Anor SC 30/01.

In the case of Attorney General v Howman 1988 (2) ZLR 402 the point was made that it is trite that an appeal court will not interfere with the exercise of discretion unless such exercise has been afflicted by a serious misdirection which makes nonsense the decision to grant the discretion in the first place.  The court stated as follows;

“The principles justifying interference by an appellate court with the exercise of an original discretion are firmly entrenched.  If the discretion has been exercised on judicial grounds and for sound reasons, that is, without caprice or bias or application of wrong principles, an appellate court will not interfere and substitute its own decision.  It is not enough that it considers, if it had been in the position of a lower court, that it would have taken a different course.”

In casu, there are no allegations proved of gross irrationality. No evidence of malice, caprice or bias.  The court canthus not interfere with the exercise of discretion on the part of the tribunal a quo.

In Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC)

“The court also stated that an appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.” My emphasis.

Such a case has not been made before me in casu and there is no basis for me to interfere with the decision to hold that dismissal was not appropriate.

In the result, the appeal is one without merit and must be dismiss.  I make the following order;

The initial decision to impose a final written warning is confirmed.

The appellant will bear the costs.

Scanlen & Holderness, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners