UCHENA
JA: The appellant appealed against the
decision of the Labour Court which upheld his dismissal from employment.
In 2001 the appellant was
employed by the respondent as a warehouse clerk in the Distribution Department.
He rose through the ranks to the
position of Distribution and Transport Manager, a position he held until 1 July
2013, when he was transferred to the post of Port Division Manager. While he was in charge of the Port Division it
came to the attention of his superior that there were 40 containers which had
been received in May 2013 which had not been invoiced. According to the record the appellant had by
September 2013 become aware of the containers but they were not invoiced till
January 2014. The appellant was asked to
submit a report on why the containers had not been invoiced. In his statement in respect of the inquiry
about the containers, appellant acknowledged having received information that
there were 40 containers that needed unpacking and he prepared a spreadsheet to
make it easy for officials under him to calculate storage charges upon dispatch
and/or unpacking the containers. However, nothing was done to invoice these
containers till January 2014.
The appellant was charged
with contravening s 4(f) of the Labour (National Employment Code of Conduct)
Regulations, 2006 (SI 15 of 2006), “gross incompetence or inefficiency in the
performance of his duties.” He was
charged for failing to account for daily activities under his department which
resulted in non-tracking of 40 containers and failure to put in place a system
that controlled his subordinates' daily activities, concealing information on
the non-invoicing of the containers from September 2013 to January 2014 and
failing to consult his superiors on issues requiring clarity.
A disciplinary hearing
was conducted. The appellant was found
guilty of gross inefficiency in the performance of his duties in that he was
unable to perform his duties to the best advantage resulting in targets being
missed. He was dismissed from employment.
Prior to his transfer to the post of
Port Division Manager he had been given a final written warning for
inefficiency. He appealed to the Managing
Director against his subsequent conviction and dismissal for the subsequent
charge of gross inefficiency. His appeal
was dismissed and his dismissal from employment was upheld. The case was referred for conciliation where
a certificate of no settlement was issued.
From conciliation the
case was referred to arbitration. The
two terms of reference before the arbitrator were; whether or not the appellant
was unfairly dismissed and the appropriate remedy if any. The arbitrator found
the dismissal to be unfair and ordered that the appellant be reinstated into
his position without loss of salary and benefits or in the event that
reinstatement was not tenable, to be paid damages.
The respondent was
aggrieved by the arbitrator's determination. It appealed to the Labour Court. The Labour Court set aside the decision of the
arbitrator and upheld the decision of the Appeals Officer. The appellant then noted this appeal against
the decision of the Labour Court to this Court.
The appeal is premised on
the following grounds:
1.
The learned Judge in the Court a quo erred in interfering with a finding
of fact by the Honourable arbitrator regarding whether or not the appellant had
been guilty of gross incompetence in circumstances where that finding of fact
was not so outrageous as to create a question of law for the Labour Court.
2. The
distinction drawn by the Labour Court a quo
between principles of law applicable to gross incompetency and those applicable
to gross inefficiency does not exist at law, thereby committing an error of
law.
3. Alternatively,
the Honourable Court a quo, after
setting aside the arbitrator's finding /on the guilty verdict, erred in law in
not applying section 12B (4) of the Labour Act (Chap 28:01) to set aside the
penalty of dismissal.
The
issues which fall for determination are:
1.
Whether the court a quo erred by interfering with “a finding of fact by the arbitrator”
on whether or not the appellant was guilty of gross inefficiency.
2.
Whether there is a distinction at law
between gross inefficiency and gross
incompetence.
3.
Whether the court a quo erred in not applying section 12B (4) of the Labour Act [Chapter 28:01] to set aside the penalty
of dismissal.
Whether the court
a quo erred by interfering with 'a
finding of fact by the Arbitrator' on whether or not the appellant was guilty
of gross inefficiency.
Mr Madhuku
for the appellant submitted that the Labour Court erred in interfering with the
factual finding of the arbitrator that the charge of gross incompetency/inefficiency
was not proved. He submitted that the
arbitrator made factual findings that the respondent failed to prove gross
incompetency/inefficiency and by interfering with such finding of fact where it
was not so outrageous, the Labour Court grossly erred. Mr Magwaliba
for the respondent submitted that the Labour Court correctly interfered with
the finding of the arbitrator because it was irrational and contrary to the
evidence presented before him.
The starting point on this
issue is whether the arbitrator made findings of fact as to whether or not the
appellant was found guilty of incompetence. When the dispute was referred to arbitration,
the issues for determination were whether or not the respondent unfairly
dismissed the appellant and whether or not the penalty imposed was justified. In that regard, the arbitrator was to
determine whether the respondent (employer) was correct in finding the
appellant guilty and imposing the penalty of dismissal in view of the evidence
filed of record. In so doing the
arbitrator was dealing with a record of proceedings. It was not the duty of the arbitrator to
determine whether the appellant committed the offence, rather the arbitrator's
duty was to find on the evidence filed of record, whether the employer was
correct in its findings.
Findings of fact in any
proceedings except where an appeal is heard in the wide sense (a rehearing) are
made by the initial disciplinary authority, tribunal or court of first instance. They can, except in the case of an appeal in
the wide sense, only be made once by such disciplinary authority, tribunal or
court. In this case, they were made by
the initial disciplinary authority. Thereafter
from the respondent's internal appeals officer to the Labour Court, the task
was not to make findings of fact, but to assess the findings of fact made by
the disciplinary authority against the standard of gross unreasonableness in
the circumstances they were made. The
arbitrator could therefore not make factual findings. The appellant therefore laboured under a
misconception in thinking that the arbitrator makes factual findings. As a result, I dismiss the first ground of
appeal on the ground that it proceeds on the mistaken view that the arbitrator
made findings of fact.
Be that as it may, I find that the
question the arbitrator had to ask himself was whether in light of the evidence
and all the circumstances, of this case the findings of fact made by the
disciplinary authority were so unreasonable as to be outrageous in their
defiance of logic. The principle to
apply is that when one appeals, they appeal against an order and not the
reasoning. In the spirit of that principle,
it is important to look at whether the decision of the disciplinary hearing was
so unreasonable in its defiance of logic that the arbitrator could interfere
with it.
The appellant was charged
for gross inefficiency or gross incompetence in the performance of his duties. The allegations were that the appellant failed
to account for daily activities in his division. It is also important to note that appellant
was found guilty of gross inefficiency in that he failed to perform his duties
to the best advantage resulting in targets being missed. It is necessary to assess the evidence led to determine
whether the finding that appellant was grossly inefficient in the performance
of his duties was reasonable.
It is not in dispute that before the
appellant was transferred to be a Port Manager, there were 40 containers which
had come around May 2013. The appellant
became a Port manager on 1 July 2013 and as the head of the department he was
responsible for supervising the daily activities of his department. As of January 2014, these containers which
came in May 2013 were not recorded in the system. During the hearing before the disciplinary
hearing, appellant admitted having received information that there were 40
containers which had to be unpacked and he prepared a spreadsheet to make it
easy for his staff at the invoicing desk to calculate storage charges upon
dispatch and/or unpacking the containers. The spreadsheet demonstrated that the
appellant knew that there were some invoices to be prepared. There also exists a manual which shows the
invoicing and charging procedures to be followed at Port Bak and the appellant
had attended an ISO training. In the
manual with the procedure for Port Bak processes, the following was stipulated
as a procedure to be followed before release of consignments:
“Once
Customs has completed the examination and goods have been moved into the
warehouse, the Importers have to submit to Port Bak the customs clearance
documents. Port Bak issue each Importer a computer Dispatch Note and raise an
Invoice for the handling and storage charges. All payments are made before the
consignments are released.”
The appellant had this manual at his
disposal which should have guided him in the performance of his duties. The preparation of the spreadsheet with two
tentative ways of invoicing shows an awareness of the duty to prepare invoices.
At the very least such knowledge should have guided the appellant to ensure the
invoicing of the containers. In his
statement when asked why there was non-invoicing, appellant accused Ruth Leman
of having deliberately concealed the figures relating to storage costs. At p
190 of the record the appellant said:
“Myself (sic) and my supervisor would assume that all
figures being represented concerning the unpacking of the containers cover all
the charges involved since she already had or knew all the figures that were supposed
to be invoiced also including the spreadsheet that I had given her for the purpose
of our tracking”.
What is apparent from his
response is that the appellant acted on the assumption that everything was
working perfectly well. However, it is
that act of assuming, which grounds the misconduct because a divisional head
cannot rely on assumptions without checking on actual performance of his
Division for a period of almost six months.
Further with the procedures
in place and because such invoicing and charging was central to his duties, the
appellant ought to have found out even from his predecessor or the manual what
his Department should have done. It must
be noted that Ruth was retained to help with the appellant's orientation. He could
have, sought his predecessor's assistance, or inquired at ZSS (another
invoicing office), if the containers, had been invoiced at that office, instead
of relying on assumptions. One further
important point to note is that the appellant set his performance target which
he took before his superior for approval. He in that performance target scored four out
of five. This shows that the appellant
had a full understanding of his role but failed to perform it efficiently.
It
is apparent that the evidence led established that appellant was guilty of the
charge of gross inefficiency in the performance of his duties. It was therefore not the duty of the
arbitrator to interfere with such findings where there was no misdirection. The arbitrator was therefore wrong in finding
that appellant was unfairly dismissed where the evidence prove that appellant was
grossly inefficient in performing his duties.
Whether there is a distinction at law between gross
inefficiency and gross incompetence.
The appellant was charged for gross incompetence or gross inefficiency
in the performance of his duties but was found guilty of gross inefficiency. The arbitrator set aside the conviction and
dismissal on the basis that the facts did not prove that appellant was grossly
incompetent or inefficient. In terms of
the arbitrator's finding, for one to be found guilty and be dismissed from
employment for gross inefficiency, the principles to be applied are those which
are applicable to gross incompetence as stated in the case of Kwangwari v CBZ
2003 (1) ZLR 551 (H) at 559 E-G. That is whether the appellant was made aware
of the standard that he was required to meet, whether he was given sufficient
training and whether he was given an opportunity to reform.
In support of that finding, counsel for the appellant, Mr Madhuku, submitted that the findings of
the arbitrator are correct because there is no substantial difference between
gross incompetency and gross inefficiency. He submitted that since the offence is
characterised as gross incompetence or inefficiency, the test is the same. Mr Madhuku
further submitted that incompetence is broader and inefficiency is its
component. I do not agree.
On the other hand, counsel for the respondent, Mr Magwaliba submitted that gross incompetency and inefficiency are
two different offences that is why the framers used the disjunctive 'or'. He further submitted that the requisites of
these two offences are different. I agree.
The
misconduct was couched as “gross incompetence
or inefficiency in the performance of his duties.” The use of the word “or” means either of the
two but the requirement is that it be gross of either incompetence or
inefficiency. This means for one to be
guilty of misconduct, he has to be found to be either incompetent or
inefficient. A distinction at law between the two is found in the fact that it
can be either of the two.
The literal meanings of the two words can be
useful in establishing a distinction between them. Incompetence is defined as “the lack of skill
or ability to do a job or a task as it should be done." Inefficient is defined as “not doing a job
well and not making the best use of time, money, energy etc” (see the Oxford Advanced Learner's Dictionary,
International Student's ed pp 760 and 766).
An
incompetent employee lacks the knowledge of what to do and how to do it, while
an inefficient employee knows what to do and how to do it, but simply fails to
exact himself in doing what he knows. There
is therefore a difference between the two.
Thus an inefficient employee may be competent in so far as having the
necessary skill or ability to do his work but does not do it efficiently due to
dereliction of duty, laziness, carelessness, negligence, lack of zeal, lack of
personal drive, not being thorough, procrastination of performance of duties or
some other personal traits which hinders him from doing his job efficiently and
make use of resources optimally.
An
incompetent employee could be able to use time and energy well but his lack of
skill will not be remedied by such good use of time and other resources. In this case the appellant by setting targets
which earned him a respectable four out of five demonstrates competency. He on the other hand demonstrated inefficiency
by arranging to meet the owners of the containers Grindsberg on three occasions
but failed to avail himself for such meetings on all three occasions when the
owners come for the meetings at his invitation
This demonstrates that the appellant's
conviction was not based on a single incident. It was based on failure to supervise his
Department over a period of six months and failure to perform his duties
efficiently. He set targets which earned
him a good rating but did not exact himself to implement them.
That said, it is important to know the
relevance of this ground of appeal which seeks to impugn the decision of the
court a quo based on making this
distinction. It would appear that the appellant
seeks to put across the point that it matters not what principles the
arbitrator applied, incompetence or inefficiency, there is no real distinction
at law between the two. That is not correct
because the misconduct itself is couched disjunctively. As has been highlighted
above, appellant was grossly inefficient when he failed to supervise his
department and relied on assumptions for almost 6 months and failed to attend
three meetings he had scheduled.
Whether the court
a quo erred in not applying section
12B (4) of the Labour Act to set aside the penalty of dismissal.
The last issue relates to the issue of the
penalty imposed by the disciplinary hearing. It is trite that penalty is in the discretion
of the employer. See Malimanjani v CABS 2007 (2) ZLR 77 (S), Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S). The employers' discretion
can only be challenged where its exercise was grossly unreasonable, capricious
or mala fide. See the case of ZFC v Geza 1998 (1) ZLR 137 (S). In the case of Barros v Chimpondah 1999 (1)
ZLR 58 (S) the court held as follows:
“It
is not enough that the appellate court considers that if it had been in the
position of the primary court, it would have taken a different course. It must
appear that some error has been made in exercising the discretion. If the
primary court acts upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it mistakes the facts, if it does
not take into account some relevant consideration, then its determination
should be reviewed and the appellate court may exercise its own discretion in
substitution.”
In the absence of a finding of gross unreasonableness, the appellate
court or tribunal cannot substitute its own discretion simply because it would
have taken a different course. In casu, the appellant had a final warning
for inefficiency albeit from a different department but within the same
organisation as an employee of the respondent. Inefficiency need not be related to the same
duties but is a reflection of the employee's inability to produce the best
possible output. It is not like incompetency which is centred on lack of skill
or ability to do a certain task but instead it is the manner of performing his
duties. In the negative, inefficiency
relates to a person's failure to perform optimally. In light of the final warning, the respondent's
exercise of discretion resulting in the dismissal of the appellant was not
outrageous and did not defy logic and thus did not warrant interference.
Section 12B (4) of the Labour Act provides as follows:
“(4)
In any proceedings before a labour officer, designated agent or the Labour
Court where the fairness of the dismissal of an employee is in issue, the
adjudicating authority shall, in addition to considering the nature or gravity
of any misconduct on the part of the dismissed employee, consider whether any
mitigation of the misconduct avails to an extent that would have justified
action other than dismissal, including the length of the employee's service,
the employee's previous disciplinary record, the nature of the employment and
any special personal circumstances of the employee.”
In interpreting s 12B
(4), this court in Mashonaland Turf Club
v Mutangadura SC 5/12 held that;
“In
the exercise of their powers in terms of s 12B (4) of the Labour Act, the Labour Court and arbitrators must be
reminded that the section does not confer upon them an unbounded power to alter
a penalty of dismissal imposed by an employer just because they disagree with
it. In the absence of a misdirection or unreasonableness on the part of the
employer in arriving at the decision to dismiss an employee, an appeal court
will generally not interfere with the exercise of the employer's discretion to
dismiss an employee found guilty of a misconduct which goes to the root of the
contract of employment.”
The court a quo considered the propriety of the
dismissal penalty and decided that the final warning justified the penalty. The employee's previous disciplinary record is
a relevant consideration in terms of s 12B (4) of the Labour Act. In the case of Zimbabwe Alloys Ltd v Muchohonyi 2006 (1) ZLR 389 (S), failure to
take into account the disciplinary record of an employee was held to be a
misdirection on the part of the Labour Court in exercising its powers under s
12B (4) of the Labour Act. As stated
above, the task of the Labour Court sitting as an appellate body was to take
into consideration the provisions of s 12B (4) of the Labour Act in determining
whether the employer was grossly unreasonable in the exercise of its
discretion. It found none. It did not therefore err in finding that the
misconduct went to the root of the contract of employment and warranted the
penalty of dismissal.
I therefore find that the court a
quo correctly found that the appellant was guilty of gross inefficiency and
that the penalty of dismissal was accordingly reasonable in the
circumstances. Accordingly, it is
ordered as follows:
“The appeal is dismissed with costs.”
MALABA DCJ: I agree
MAVANGIRA JA: I agree
Mundia & Mudhara, appellant's legal practitioners
Wintertons, respondent's legal practitioners
