THE
BACKGROUND TO THE APPEAL
The respondent was employed by the appellant (alternatively
referred to as “the Authority”) as an accountant. On 5 January 2011, he
appeared before a disciplinary hearing of the appellant on two charges of misconduct,
the first being that he had committed an act or conduct inconsistent with the
terms of his contract of employment, as provided in section 4(a) of the Labour
Employment Code of Conduct; and the second being a violation of section 4(d) of
the Code: theft or fraud. The charges arose from the following events.
On 29 May 2009, as part of his conditions of employment,
the respondent signed a document entitled: ZIMBABWE NATIONAL WATER AUTHORITY:
CONDITIONS OF USE OF AUTHORITY VEHICLES. Of relevance are the following
clauses:
Clause 3: The vehicle shall not be used after 19.00hours
during weekdays, during weekends, and holidays, except while on official duty,
for which written approval will have been issued by my Head of Catchment
Department.
Clause 9.0: I will not tamper with, or attempt to have the
vehicle that has been involved in an accident repaired without the prior
consent of management.
Clause 10: Any
breach of these Conditions of use of an authority vehicle will constitute a
breach of my contract of employment which may lead to such disciplinary action
as the offence warrants.
It is common cause that the respondent went to his rural home
on Saturday 13 November 2010 driving a vehicle (AAA 0773) owned by the
appellant. The record does not indicate whether written approval was obtained
but nothing was made of it in the disciplinary proceedings.
The vehicle, being driven by the respondent, broke down a
few kilometers from his destination, upon which he called for assistance from
two of the Authority employees who proceeded to tow the vehicle. During the
towing process, the rope broke causing the two vehicles to ram into each other.
On his return, on Sunday 14 November 2010, he gave instructions to the
employees assisting him that the vehicle be taken to Surprise Panel Beaters for
repairs.
It was alleged that the respondent did so in the full
knowledge that only the hearing committee or management could take a decision
to send for repairs an Authority vehicle involved in an accident. Even then,
the requirement was that there must be three quotations from the prospective
panel beaters before such a decision could be taken. Further, his abuse of
authority as an accountant caused the drivers of the two vehicles to disobey
clause 9.0 of the Conditions of use of Authority vehicles as set out above.
In addition, in his accident report to the Catchment
Manager, he gave a false report, namely, that one of the vehicles, ABA 7366,
had incurred minor damage yet internal investigations revealed that the two
doors of this vehicle were interchanged with those from vehicle AAA 0773 (the
vehicle driven by the respondent) and that vehicle number ABA 7366 was spray
painted to match the colours of the foreign doors with the vehicle body.
Regarding the second charge, it was alleged that he
deliberately sent an Authority vehicle, registration number AAM 8967, to
Surprise Panel Beaters for bodywork and re-spray without proper authorization
'as evidenced by the following papers on record', namely:-
“(i) Internal purchase requisition number 10090, dated
10/11/10, sought quotations for the “bodywork and re-spray” to vehicle AAM 8967
which resulted in the responses from the three companies below:
(a) Quotation number 0000462 from Surprise Panel Beaters
for US$350= was dated 9/11/10.
(b) Quotation number 00423 from Cagon Engineering for
US$650= dated 09/11/10.
(c) Quotation number 001228 from Perfect Panel Beaters
& Spray Painters for US$1,138=50 dated 9/11/10.
The dates on the three quotations were all altered to read
10/11/10 to synchronize with the date on the internal purchase requisition
purchase number 10090.
(ii) Comparative Schedule numbered 07702 was regularized by
the Acting Catchment Manager on 15/11/10 to facilitate payment of US$350= only
to Surprise Panel Beaters.
(iii) You passed for payment Invoice number 0000483 from
Surprise Panel, dated 18/11/10, with an amount of US$650= contrary to the
figure on the comparative schedule 07702. The Authority could have (been)
prejudiced with an amount of US$300= for a service that was not rendered.
(iv) As the Catchment Accountant, you seriously breached
the trust bestowed on you by Management when you altered the schedule. Such
action now makes it difficult for Management to trust you to handle Catchment
financial matters.”
The respondent was represented by a legal practitioner at the
hearing. He denied both charges but was found guilty as charged and dismissed.
Thereafter, internal appeals having failed to exonerate him, the matter ended
before an Arbitrator who stated his terms of reference to be:
“To look into the substantive fairness of the dismissal” of
the respondent from the appellant's employ.
The record contains no information as to how the matter
ended up before the arbitrator. Part of the award reads:
“Appellant was dismissed and a penalty of dismissal meted
out. Dissatisfied, he appealed to the respondent's Appeals Officer. His appeal
was dismissed on 1 February 2011. The appellant then appealed to the Labour
Court in error but only had to be referred to this Tribunal by the Registrar of
the Labour Court…,. His grounds of appeal before me are as follows…,.”
In terms of the Labour Act [Chapter 28:01], the matter
could have come to the Arbitrator as a dispute referred either by a Labour
Officer for compulsory arbitration in terms of section 93 of the Labour Act
[Chapter 28:01]; or by the Labour Court in terms of section 89.
Neither of the two sections refers to appeals to an
Arbitrator.
The Arbitrator proceeded to determine the matter as an
appeal. Before him, the respondent's 'grounds of appeal' were, as to the first
charge:
(a) That he had authority, as part of management, to direct
the vehicles to be sent to Supreme Panel Beaters and have them repaired:
(b) That item no. 9.0 of the conditions of use of Authority
vehicle did not apply to him in this case since he was not driving the
vehicles. It only applied to the mechanics who were driving the vehicles that
got involved in an accident.
(c) Regarding the tender procedure he is alleged to have
flouted, there are exceptional situations in which discretions (sic) were used
to procure services for the Authority. He submitted that a situation such as
this one has been treated in the same way for countless times with no adverse
consequences.
Regarding the second charge:
(d) That all the appropriate documentation supporting the
transactions were available;
(e) That the alleged offence was discovered only through
documents that had been sent to the Catchment Manager for seeking approval and
authorization. Therefore, it was improper to charge him with an offence which
had not materialized.
(f) That the alteration of dates on the quotations was done
at the instance of the Catchment Manager who had insisted on it (being) done to
enable him to process the transaction. He approved it thereafter.”
These 'grounds of appeal' formed the basis of his
submissions. They found favour with the Arbitrator.
The Arbitrator heard no evidence but relied on that
contained in the record of disciplinary proceedings before the appellant.
In respect of the first charge, he concluded that the
respondent, being an accountant, was a part of management, and, as such, had a
discretion to make decisions that help the authority; that the respondent's
action was reasonable in that he had to use his discretion to make decisions
that help the Authority; and that the vehicle which had been sent for repairs
was a utility vehicle which needed immediate attention.
With regard to clause 9.0 of the Authority's Conditions of
Use of Authority vehicles; since the respondent was not the driver of any of
the vehicles, he had the authority, as part of management, to send the vehicles
for repairs. He was “of the informed view” that there was no exclusive way of
securing services to the appellant and the respondent had used his discretion
'to elect from the many ways accepted in the organization to secure service for
the vehicles in this matter…,.'
Regarding the second charge, he found no evidence to
support a charge of theft or fraud.
He upheld the appeal, set aside the findings made by the
domestic tribunals and ordered the reinstatement of the respondent.
Aggrieved by the Arbitrator's award, the appellant
appealed, unsuccessfully, to the Labour Court, contending, in the main, that
the Arbitrator had no jurisdiction to set aside the factual findings of the
lower tribunals.
THE APPEAL
The main issue to be decided in this appeal is whether the Labour
Court was wrong in law to uphold the award of the Arbitrator in quashing the
findings of the disciplinary committee as confirmed by the Appeals Officer.
A resolution of this issue depends on a determination as to
the whether or not the Arbitrator, sitting as an Appeal Court, could set aside
findings of fact made by the lower tribunal.
It is settled that an appellate court will not interfere
with factual findings made by a lower court unless those findings were grossly
unreasonable in the sense that no reasonable tribunal applying its mind to the
same facts would have arrived at the same conclusion; or that the court had
taken leave of its senses; or, put otherwise, the decision is so outrageous in
its defiance of logic that no sensible person who had applied his mind to the
question to be decided could have arrived at it (see Hama v National Railways
of Zimbabwe 1996 (1) ZLR 664 (S)…,; Metallon Gold Zimbabwe v Golden Million
(Private) Limited SC12-15): or that the decision was clearly wrong.
Although the background of the matter is unclear, I proceed
from the premise that the Arbitrator sat as an appellate tribunal. In that
capacity, he could not set aside findings of fact made by the disciplinary
tribunal unless such findings were so irrational that no reasonable tribunal
applying its mind to the same facts would arrive at the conclusion that it did.
There was no such finding by the Arbitrator or the Labour Court. The Arbitrator's action in this regard
constitutes an error of law and the Labour Court fell into the same error. In
upholding the award, it said:
“Even the Arbitrator, sitting as an appeal tribunal, it
cannot be said that the award was misplaced. It is accepted that an appellate
tribunal/court does not lightly interfere with the decision of a lower court
but it appears that this is a proper case for interfering.”
It gave no explanation as to the reason for the
interference.
In the absence of a finding by the Arbitrator of
irrationality on the part of the Disciplinary Committee, the Labour Court erred,
in law, in upholding the award.
The Disciplinary Committee made the following factual
findings:
“(i) The vehicles were towed past the Zinwa premises to the
panel beaters on the respondent's instructions.
(ii) The respondent gave verbal instructions to the panel
beaters to commence work on the Authority vehicles without following up with
immediate documentation.
(iii) No requisitions were raised for urgent repairs in
respect of the vehicles nor were quotations sought from Surprise Panel Beaters
or any other service provider in that connection.
(iv) The respondent agreed that he was aware of the appellant's
tender procedures but chose to ignore them.
(v) The respondent showed no signs of remorse and indicated
that he would do the same thing again if he found himself in the same
circumstances.”
These findings by the Committee are supported by the evidence
on record. In addition, the respondent admitted that he deliberately chose to
flout the Authority's service procurement procedures on the grounds that he, as
part of management, could use his discretion to act in the Authority's
interests. On these facts, the Committee's conclusion that the respondent
committed an act inconsistent with the express or implied conditions of his
employment was, in my view, unavoidable.
The respondent was the Accountant of the Authority,
employed to safeguard its finances. A high degree of integrity was expected of
him. The evidence showed that he ignored all procedures put in place by the
appellant for the very purpose of safeguarding its finances and brazenly told
the Committee that he would repeat that performance if he was retained in that
position as an Accountant. The evidence also revealed that the respondent did
not obtain the approval of the leader of the management team, one Juma,
although he spoke to him after the accident. His actions are those of someone
who had something to conceal.
The finding by the Arbitrator that there was no exclusive
way of ordering services went contrary to the evidence. It was repeatedly put
to the respondent at the hearing before the Disciplinary Committee that his
actions ran contrary to established procedures in the company.
There is no reason apparent on the record as to why the
respondent did not obtain verbal approval from Juma. If, as he repeatedly said,
he was also part of management, since this was a matter concerning an accident
in which he was involved, the prudent course would have been to wait for the
following day to obtain the proper approval. If the matter was so urgent that
action had to be taken on a Sunday he ought to have obtained verbal approval
from Juma when he had an opportunity to do so, and before ordering the vehicle
to be repaired in apparent violation of the Authority's rules. The evidence
revealed that he saw Juma shortly after his return and advised him of the
accident. He was asked, at the hearing, why he felt constrained to send the
vehicle for repairs on a Sunday to which he replied that the company was short
of vehicles. In my view, this presented all the more reason for urgent
consultation with Juma on the matter.
Surprise Panel Beaters is apparently located beyond the
appellant's premises. The respondent caused the vehicles to be towed past the
appellant's premises on the way to Surprise Panel Beaters. When asked why he
did not have the vehicles moved onto the appellant's premises, he gave the
reply that he was considering the company's need for vehicles. Since there was
no indication that the vehicles were going to be repaired that night, it was
not established how his unholy haste in towing the vehicles to Surprise Panel
Beaters, on a Sunday, would benefit the appellant. In any event, going by the
Authority's procedures, the vehicles would have had to await a go-ahead from
the Management of the appellant after quotations had been obtained - in
accordance with the Authority's accounting procedures.
When the facts are examined, it becomes evident that the
respondent, by sending the vehicles for repairs, was himself in breach of
clause 9.0 of the Conditions of use of the Authority's vehicles. There is no
provision in the document which he signed that this clause would only apply if
he was the driver of the vehicle. He caused the vehicles to be driven to
Surprise Panel Beaters and gave instructions for their repair without following
laid down procedures and without seeking approval. Surprise Panel Beaters were
the very ones whom he attempted to pay an extra $300= without supporting
invoices and for no work done. (This is the subject of the second charge).
I find no irrationality in the factual findings made by the
Committee or in its approach.
Regarding the second charge, the factual findings by the Committee
were that:
“(i) The respondent authorized an increase in a service
value without supporting documentation, namely, a requisition, comparative
schedule, and order.
(ii) There was no evidence on the invoice to show that an
additional service was requested; and there was no proper documentation to
support an extra payment even if that were genuine.
(iii) The respondent had admitted to instructing his
subordinates to process payment of an extra charge without the Catchment
Manager's authority.
(iv) There was no indication on the invoice that it was an
advance payment.
(v) The respondent agreed that he was aware of the tender
procedures but he chose to ignore them.
(vi) By so doing, the respondent showed utter contempt for
Authority procedures.
(vii) The respondent authorized payment for a service that
was neither requested nor provided.
(viii) That the respondent was grossly incompetent, in that
he processed a 'lot of papers' without documentation.”
And in passing verdict, the Committee said:
“After a thorough scrutiny of the circumstances surrounding
all the documentary evidence, the committee regretfully noted that Mr
Mwoyounotsva has no respect for the organization's policies and that he has utter
contempt of the Authority. Furthermore, the panel sadly noted that because of
his I know-everything attitude, it is difficult to make him follow authority
policies and procedures. Despite him acknowledging that he was well aware of
the appropriate procedures, Mr Mwoyounotsva deliberately chose to ignore them.
The panel was convinced, beyond reasonable doubt, that Mr Mwoyounotsva was not
trustworthy and unashamedly betrayed the trust bestowed upon him by the
Authority. The last thing an Accountant would do, would be to deliberately
authorize payment of anything without proper documentation, not to mention an
attempt to temper ( sic) with dates and figures. Mr Mwoyounotsva is therefore
found guilty as charged.”
In my view, there was nothing irrational about this
reasoning. If anything, it was sound and did not warrant interference by the
Arbitrator. The Labour Court therefore erred, in law, in failing to find that
the Arbitrator had acted improperly in interfering with the findings of the
Committee; which findings are supported by the evidence on record.
I would observe, though, that while the Committee Chairman
explained the charge to be 'intention to defraud' the evidence would appear to
support a charge of attempted theft or fraud. To obtain approval for payment of
$350= and then to pass payment for $650=, without an invoice or supporting
document, suggests dishonest behavior. This is moreso because the respondent's
duties, as accountant for the Authority, would necessarily involve strict
accounting and payment procedures. In the absence of any allegation, whatever,
by the respondent, that he passed the payment in error, the Committee's
assessment of the evidence against him and their consequent verdict cannot be
said to be irrational.
If there was any irrationality displayed in this matter it
was in the Arbitrator's acceptance of the respondent's claim that it was up to
his Catchment Manager to detect the fact that the respondent had passed an
overpayment to Surprise Panel Beaters.
In any event, the conviction on the first charge carried
with it the penalty of dismissal.
For the above reasons, I conclude that the Labour Court
erred, in law, when it upheld the award of the Arbitrator. Accordingly, the
appeal is upheld with costs.
The judgment of the Labour Court is set aside and
substituted with the following:
“1. The appeal is allowed with costs.
2. The award of the Arbitrator is set aside.
3. The dismissal of the respondent is hereby
confirmed.”
