This is an appeal against the entire judgment of the Labour Court (“the court a quo”), sitting at Harare, wherein it dismissed the appellant's appeal and upheld the decision of the respondent's disciplinary authority dismissing the appellant from employment.
FACTUAL BACKGROUND
The appellant was employed by the respondent as a Deputy General Manager on 1 November 2014. During the course of his employment, he was appointed as Acting General Manager during the following periods:
(i) 6 to 22 January 2016 (16 days);
(ii) 21 to 25 August 2017 (4 days);
(iii) 10 to 11 July 2018 (1 day);
(iv) 15 to 16 August 2018 (1 day); and
(v) 11 to 21 January 2019 (10 days).
The appellant was later charged with two counts of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 (“the Regulations”), that is, committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.
On the first count, the appellant was charged with failing and/or neglecting to advise the Board of Directors of the respondent (the Board) of the various problems and challenges that the company was facing in implementing its projects during the periods that he was employed as the Deputy General Manager, and, in particular, during the above-mentioned periods when he was the Acting General Manager.
On the second count, it was alleged, that, during the appellant's employment as Deputy General Manager, from 1 November 2014 to 22 March 2019 (when he was placed on mandatory leave), he attended PetroZim Board meetings and failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects, in particular, the items numbered A to A(v) below:
“A. The following are the incidences you failed and/or neglected to report to the Board when you were Acting General Manager and during Board meetings as Deputy General Manager:
A(i) You failed and/or neglected to advise the Board that the Company had purchased two DRA skids from Kaltrade amounting to US$610,000. The purchase order was for new DRA skids. Kaltrade failed to deliver the skids. On their failure to deliver, Kaltrade then offered to sell to the Company the two used demo DRA skids. The Company accepted the old demo skids (which were bought as test kits against a deposit of US$35,000), as a replacement for the new skids that Kaltrade had failed to supply. Despite the skids being previously used, the Company accepted them at the price of US$610,000 that had been quoted for the supply of new skids by Kaltrade.
A(ii) You further failed and/or neglected to advise the Board that the Company had irregularly accepted a purported 5-year warranty on the demo skids from Kaltrade for the period 2013 to 2019. Despite the demo skids being purported to be on a 5-year warranty, the Company subsequently approved the purchase of DRA skid spares at a cost of US$91,082=30.
A(iii) You also did not advise the Board, that, despite various outstanding orders from Kaltrade, including 2 outstanding DRA skids which had been paid for in 2013, as late as September 2018, the Company went ahead and authorised the payment of US$267,760 to Kaltrade for the supply of another DRA skid. To date this has still not been delivered.
A(iv) You did not report to the Board that the ethanol project that had been purported to be commissioned as 100% functional was actually operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed, and, you failed and neglected to ensure delivery of the remaining 3 pumps from Kaltrade (Private) Limited despite having paid, in advance, the full purchase price.
A(v) You failed to advise the Board that the tank gauging system at Feruka was not working since its failure in 2017. Further, you did not advise the Board that the Company was relying on tank readings from the customer, NOIC, which compromised the Company's efficiency and systems.”
A disciplinary hearing was subsequently held.
It was the respondent's case, that, the material non-disclosures by the appellant, during the course of his employment, created the impression that everything was in order when, in fact, there were serious operational challenges that threatened the company's capacity to deliver on its mandate. The respondent averred, that, the appellant had failed to perform his duties in line with the dictates of his job description which was stipulated in the contract of employment. The contract required the appellant to report on overall company performance and provide input for Board meetings.
The appellant denied the charges.
He argued, that, he was never appointed as the Acting General Manager of the respondent and that the affairs of the company were regulated by a joint venture agreement between Lonrho and NOIC, which agreement reserved the right of appointment of a General Manager to Lonrho.
The appellant also claimed, that, in terms of the company organogram, no subordinates reported to him in his capacity as the Deputy General Manager. He further stated, that, all employees reported to the General Manager.
In addition, the appellant submitted, that, he had previously informed the Board that none of the other employees, including the Chief Engineer and the Accountant, were reporting to him, and, further, that he was being left out of project meetings and appraisals. The Board did not resolve this anomaly, but, instead, passed a resolution that only the General Manager was to communicate with the Board on all issues.
The Disciplinary Authority found, that, the evidence before it established that the appellant, as the Deputy General Manager, had been periodically appointed as the Acting General Manager of the respondent, in terms of the joint venture agreement.
It also found, that, the appellant, by virtue of being the next senior person available as the Deputy General Manager, would automatically be the Acting General Manager in the absence of the substantive General Manager when she either travelled or was on leave.
It further found, that, this evidence was conceded to by the appellant during cross-examination.
Furthermore, the appellant's contract of employment and job description showed, that, he was required to know and be responsible for the day-to-day monitoring of company operations and projects.
Regarding the question of whether the appellant had an obligation to report to the Board or the Board chairperson, it found that there were no Board meetings held during the time that the appellant was Acting General Manager. There was thus no way that the appellant could have reported challenges being faced by the company to the Board.
Nevertheless, it found, that, despite there being no meetings, the appellant was still expected to update the Board chairman on operational issues.
However, the Disciplinary Authority observed that the substantive General Manager, one Mrs Katsande, who the appellant would stand in for as the Acting General Manager, deliberately withheld information from the appellant such that this had an effect on his capacity to perform his duties as Acting General Manager.
It was also found, that, despite being excluded, the appellant was still aware of the challenges concerning the prover loop and metering project.
In light of the above, the Disciplinary Authority concluded, that, the appellant was aware of his responsibilities as stipulated in his contract of employment and the joint venture agreement.
It further held, that, the appellant had an obligation to report to the Board, through the chairperson, to inform it of the prover loop metering project problems and the other problems that he admitted to being aware of, because, as the Acting General Manager, he was the “gateway to the Board.”
The Disciplinary Authority ruled, that, the appellant was guilty, on both counts, of contravening of section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006. Consequently, the appellant was dismissed from his post as Deputy General Manager of the respondent on 14 August 2020.
Aggrieved by the decision of the Disciplinary Authority, the appellant filed an appeal in the court a quo.
SUBMISSIONS BEFORE THE COURT A QUO
At the hearing of the appeal, the court a quo struck out grounds of appeal one and two because they were improper. The appeal was, therefore, heard on the basis of the remaining three grounds of appeal.
The appellant submitted, that, the Disciplinary Authority erred at law by making wrong factual considerations and failing to consider factual evidence presented at the hearing which absolved the appellant from the allegations of misconduct.
It further erred at law by failing to consider, as it should have done, that the admission by the respondent, that, only the General Manager was permitted to report to the Board resolved the matter before it in favour of the appellant.
Having noted the admission by the respondent, that, there were no Board meetings convened during the period in which the appellant was accused of misconduct, the Disciplinary Authority erred in proceeding to find that the appellant was guilty of the misconduct alleged in that he should have reported to the Board Chair.
Finally, he argued that the Disciplinary Authority erred in failing to consider, as it should have done, that the respondent had failed to prove, on a balance of probabilities, that, the appellant was guilty of the alleged misconduct.
Per contra, the respondent argued, that, the appellant had a duty to report to the Board, which duty he was well aware of and did not perform.
It contended, that, the appellant had numerous occasions to report to the Board on the challenges faced by the company, even when it was not sitting, as he communicated with the Board Chairman on various occasions. The respondent was of the view, that, the appellant was the Acting General Manager at the material times in issue and had a duty to protect his employer's property and interests, hence, he could not escape liability for failure to act.
FINDINGS OF THE COURT A QUO
The court a quo opined, that, the appellant was an expert who had an obligation to perform his job for the benefit of the respondent. In view of this, the court a quo held, that, the appellant had a duty to report any anomalies concerning the functioning of the company, especially during the periods he was the Acting General Manager.
In relation to the grounds of appeal, the court a quo held, that, they had no merit.
It reasoned, that, in the absence of the General Manager, the appellant was the Acting General Manager who had a duty to report to the Board. It was also the court's view, that, even when the Board did not convene, the appellant still had access to the Board Chairman whom he should have advised of any challenges bedevilling the company.
The court a quo thus concluded, that, there was no need for it, as an Appellate Court, to interfere with the findings and the exercise of discretion by the Disciplinary Authority as there was no misdirection on its part, taking into account the evidence that was before it.
In the result, the court a quo dismissed the appeal and upheld the decision of the disciplinary authority.
Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:
GROUNDS OF APPEAL
“1. The court a quo erred in law in not finding, that, the principle lex non cogit ad impossibilia applied to the appellant's circumstances, that is to say, that, objective impossibility of discharging a legal duty is always a defence when the type of the conduct charged is an omission.
2. A fortiori the court a quo erred and grossly misdirected itself on the facts and the evidence, such misdirection amounting to a misdirection in law, in not finding as it ought to have done, that, it was objectively impossible for the appellant to perform the obligation in respect of which the omission charged was alleged because on the common cause facts and evidence:
(i) There was no Board meeting that took place or a properly convened and constituted Board meeting that sat at all to deal with the affairs of the respondent during the period the omission is alleged to have taken place; and
(ii) There was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, was to be through the General Manager only of which the appellant was not; and
(iii) There was no way appellant could have known of the operation challenges faced by the respondent in circumstances where it was clear, that, as a senior managerial employee who was not always on the ground, none of the subordinates with which (sic)? such information reported to him as they all reported directly to the substantive General Manager; and
(iv) In terms of his contract of employment, the appellant had no subordinate who reported to him.
3. The court a quo erred and grossly misdirected itself in law in finding, that, reporting to or advising the Board Chair in respect of issues meant for the whole Board of Directors, at a properly convened and constituted meeting, was enough to comply with the requirement to inform the Board and that appellant's failure and/or neglect to report the Board Chairman, as opposed to the Board, was fatal as to go to the root of his employment contract.
4. The court a quo having found, that, appellant's interpretation of the emails he received from the General Manager is correct, erred and grossly misdirected itself in any event in finding, that, he was appointed the Acting General Manager with duties and responsibilities of advising the Board of Directors on the operational challenges of the company.
5. The court a quo erred in law in considering, that, it was being asked to interfere with the exercise of a discretion (sic) in circumstances wherein the appellant impugned findings of fact.
6. The court a quo erred and misdirected itself, in any event, in not finding that there existed the jurisdictional facts upon which the court a quo could interfere with the factual findings of the disciplinary authority and in not interfering with the same.”
The appellant prays, that, the appeal be allowed with costs and that the decision of the court a quo be set aside and substituted with one allowing the appeal and setting aside the decision of the Disciplinary Authority....,.
Counsel for the appellant further contended, that, a further complaint by the appellant is that the court a quo erred in law in considering that it was being asked to interfere with the exercise of a discretion in circumstances wherein the appellant impugned findings of fact.
It is submitted, that, the record is clear that the appellant's grief a quo related to the disciplinary authority's findings of fact. The appellant clearly pointed out how impossible it was, on a careful application of the law to the facts, for the Disciplinary Authority to find him guilty of the charges he faced.
The fact that the court a quo went on to frame the appellant's grounds of appeal as impugning the exercise of discretion by the Disciplinary Authority, was a question that the court a quo invented for itself and answered.
In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)..., GWAUNZA JA said:
“The appellant argues, in the light of all this, that, the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.
I am, for the reasons outlined below, persuaded by this argument....,.
The misdirection on the part of the court a quo is left in no doubt. It is my view so serious as to leave this Court with no option but to interfere with the determination of the lower court.”
I associate myself with the above sentiments. The court a quo created its own ground of appeal and answered it, which was a misdirection on its part.
