In a judgment delivered on
16 April 2013, the Labour Court set aside an award made by an arbitrator
reinstating the appellant to his former position without loss of salary or
benefits. In its place, the Labour Court substituted a finding that the
appellant was guilty of gross negligence and withholding information. In
consequence of that finding, the Labour Court imposed the penalty of dismissal
and ordered that each party pays its own costs.
This appeal is against that order.
FACTUAL BACKGROUND
The respondent is a Rural District Council set up in terms
of the Rural District Councils Act [Chapter 29:13]. Like all other local
authorities, it is constituted by elected councillors and salaried employees,
the latter falling under the aegis of a Chief Executive Officer.
The appellant was employed by the respondent as its
Executive Officer, Finance. In this position, he was the financial advisor to
the respondent on all financial issues. He was also responsible for the
purchase of all Council assets and controlled all Council income and expenditure.
In a routine audit of Council
books, auditors found that statements were not being produced timeously. They
recommended that the respondent purchase more computers. Following a meeting of
the respondent's Finance Committee, it was resolved to buy four (4) computers
for the Finance Department and one for the Audit Department. The four computers
for the Finance Department were to enhance Council operations in the income,
debtors, and creditors sections whilst the main server was to consolidate and
record daily transactions of all sections. As Finance Officer, the appellant
was tasked with the responsibility to ascertain the computer specifications
necessary for this task and to make recommendations on the suppliers.
The appellant prepared a document for consideration by the Finance
Committee. The document, which was presented to the Finance Committee on 4
February 2005, made two recommendations on the hardware specifications. On the
server minimum specifications, the appellant recommended a “Compaq Pentium
4-IBM, Dell”. On the workstation minimum specification, he recommended “Compaq
Dell/Clone/IBM Microsoft Windows 2000 Professional TM/Windows XP.”
In his presentation to the Finance Committee, the
appellant reported that
he had received nine quotations, that he had
investigated the companies concerned and that, after due diligence, he
recommended that the tender be awarded to a company called Powertec
Distribution (Pvt) Ltd (“Powertec”).
In its tender, Powertec
had quoted the price for five IBM Clone Pentium
IV computers. That Powertec had
tendered to supply clone computers was not disclosed by the appellant during
the presentation before the Finance Committee.
Although a member of the Finance Committee – a councillor -
expressed some disquiet on whether the recommendation by the appellant had been
prepared after due diligence, the Finance Committee, following assurances by
the appellant that he had carried out due diligence, and that the company was
reputable, resolved to award the tender to Powertec.
The computers were delivered by Powertec, the delivery note
reflecting that what had been delivered were clone computers. The appellant
authorized their payments without reference to the Chief Executive Officer.
Payment was made on the same day that the computers were received.
It further appears from the papers that the respondent was
not entirely happy with the performance of the computers. Consequently, the
respondent engaged the services of an information technology expert who advised
Council that the computers procured were clones and that clones were not
original computers but were assembled using parts from different computers.
Attempts to locate Powertec were in vain. The box number reflected on the
quotation was found to belong to the Anglican Church. The respondent concluded
that Powertec was a briefcase company and that its physical location could not
be traced.
Following this development, on 12 May 2005, the respondent
charged the appellant with the following:-
(a) Negligence, in that the appellant had failed to take
reasonable care to inspect the computers received to ensure they complied with
technical specifications, that he had proceeded to pay Z$25 million on a
voucher which described the computers as clone, that he had failed to submit
the payment voucher to the Chief Executive Officer for his endorsement, and,
lastly, notwithstanding that he had not signed the payment voucher, released payment.
(b) Withholding information in that he had inserted a
password in the computer system which he refused to disclose on request; that
he had collected the tender documents and minutes of the Tender Board meeting
from Council offices and had refused to return them; that he had refused, when
requested, to disclose the password for the networked computers, by the Chief
Executive Officer.
(c) Fraud, in that he misrepresented that he had thoroughly
investigated the background of the company, Powertec, and had recommended that
it be awarded the tender when, in fact, the company was not operational but was
a shelf company.
The disciplinary hearing took place before the Council
disciplinary committee on 6 July 2005. The Committee found the appellant guilty
of all three charges and, consequently, determined that he be relieved of his
duties in terms of the Code of Conduct for the
Council.
PROCEEDINGS
BEFORE THE ARBITRATOR
The appellant appealed to an arbitrator against the
dismissal. Whether or not this was the correct procedure is not an issue
before me.
In essence, the arbitrator found that the computers
received were in accordance with the quotation. He further found that, since
the appellant had not previously received a warning, he was not guilty of
negligence. On the charge of withholding information, he found that the
computers in question were still functional, and, if not, could have been
returned to the supplier. On the allegation of fraud, he found that no evidence
of such fraud had been proffered and that, to the contrary, Council operations
had been enhanced following the procurement of these computers.
In consequence, he found that the verdict of guilty of
misconduct was unlawful and accordingly set the verdict aside and ordered his
reinstatement without loss of salary and benefits from the date of his dismissal.
RESPONDENT'S
GROUNDS OF APPEAL BEFORE THE LABOUR COURT
Dissatisfied, the respondent appealed to the Labour Court.
In view of the grounds of appeal raised in this appeal, it
is necessary to restate those grounds. The respondent's grounds of appeal may
be summarized as follows:-
(a) That the arbitrator erred in concluding that, since the
appellant was supervised by the Finance Committee and the Chief Executive
Officer, he was not responsible for the events that subsequently unfolded
following the award of the tender.
(b) That the arbitrator erred in finding that, in terms of
the quotation, Council wanted clone computers and not new IBM computers.
(c) That the
arbitrator erred in concluding that the computers purchased had been approved
by the Finance Committee in circumstances where such Committee had acted on the
appellant's advice.
(d) That the arbitrator erred in concluding that, since the
appellant had not previously been given a warning, the charge of negligence was
not sustainable and the appellant was therefore not guilty.
(e) That the arbitrator erred in concluding that the clone
computers were still functional in the absence of evidence. The computers were utilised
for less than six months and it became necessary for Council to buy new IBM computers.
(f) That the
arbitrator erred in concluding that if the clone computers had been defective,
they should have been returned to the supplier, when it was the respondent's
case that the supplier was a briefcase company that had given a non-existent address.
FINDINGS BY
THE LABOUR COURT
In a judgment delivered on
16 April 2013, the Labour Court set aside the arbitrator's award and in its
place substituted a finding of guilty of gross negligence and withholding
information. The Labour Court found the appellant not guilty of fraud. It
however imposed a penalty of dismissal.
In arriving at the above conclusions, the Labour Court made
a number of conclusions:
(i) First, that
although the grounds of appeal by the respondent largely raised issues of fact,
the “bottom line” was that the respondent was alleging that the arbitrator had
misdirected himself on the facts and had, consequently, come to the wrong
conclusion.
(ii) That the appellant passed the documents for payment
without the authority of the Chief Executive Officer and paid for them
immediately without such authority.
(iii) That the computers failed to meet Council standards.
As the suppliers could not be traced, Council was forced to purchase more computers.
(iv) That the arbitrator had misdirected himself in
concluding that, because the appellant had never previously been warned, he was
therefore not guilty of negligence.
(v) That the appellant had admitted that he had released
payment without signing the payment voucher.
(vi) That the arbitrator made a finding on the functioning
of the computers without evidence on that aspect.
(vii) That on the evidence, negligence had been proved. So
was the charge of withholding information. The charge of fraud was not
supported by the evidence.
(viii) That the negligence was gross and accordingly that
finding was substituted.
(ix) That a penalty of dismissal was, in the circumstances, justified.
APPELLANT'S
GROUNDS OF APPEAL IN THIS COURT
Dissatisfied, the appellant noted an appeal to this Court
against the decision of the Labour Court. He has attacked the decision on
various grounds:
(i) That the appeal before the court a quo was based on issues of fact and not law
and therefore incompetent. Relying on the judgment of this Court in Reserve
Bank of Zimbabwe v Granger & Anor SC34-01, he submitted that no allegation
had been made that there was a misdirection on the facts which was so
unreasonable that no sensible person applying his mind to the facts would have
arrived at such a conclusion.
(ii) That there was no basis upon which the Labour Court
could interfere with the finding by the arbitrator that the appellant was not
guilty of withholding information as no competent ground had been raised in
respect of it. In any event, the conclusion was drawn in the absence of a
finding that there was an error in the exercise of discretion by the arbitrator.
(iii) That the finding by the court a quo on the issue of negligence, premised as
it was on a ground which was meaningless, was incompetent.
(iv) That the penalty of dismissal was ill-founded as the
requirements of gross negligence were not met.
RESPONDENT'S
SUBMISSIONS ON APPEAL
The respondent does not agree that the court a quo misdirected itself. It has submitted
as follows:-
(i) On the charge of negligence, the finding by the court a
quo that the arbitrator had
misdirected himself could not be faulted as there was no need for previous
warnings to be taken into consideration in determining whether or not the
appellant was guilty of misconduct.
(ii) On the charge of withholding information, the court a
quo was correct in finding that the
insertion of a password in the networked computers, the refusal to disclose
such password, the collection of tender documents, and refusal to surrender
them, constituted withholding information.
APPEAL TO
THIS COURT MUST BE ON A POINT OF LAW
It is correct, as submitted by the appellant, that an
appeal to this Court must be based on a point of law.
What constitutes a point of law has been stated and
restated in a number of decisions of this Court. See for example Muzuva v
Limited Bottlers (Pvt) Ltd 1994 (1)
ZLR 217 (S); Hama v NRZ 1996 (1) ZLR
664; RBZ v Granger & Anor SC34-01.
It is also correct that in
RBZ v Granger & Anor SC34-01,
this court stated that if an appeal is to be related to the facts, “there must
be an allegation that there has been a misdirection on the facts which is so
unreasonable that no sensible person who had applied his mind to the facts
would have arrived at such a decision. And a misdirection of fact is either a
failure to appreciate a fact at all, or a finding of fact that is contrary to
the evidence actually presented.”
In my view, the
remarks made in RBZ v Granger & Anor SC34-01
need to be qualified, to the extent that they may be interpreted as saying
that, to constitute a point of law, in all cases where findings of fact are
attacked, there must be an allegation that there was a misdirection on the
facts which was so unreasonable that no sensible person properly applying his
mind would have arrived at such a decision. One must, I think, be guided by the
substance of the grounds of appeal and not the form. Legal practitioners often
exhibit different styles in formulating such grounds. What is important, at the
end of the day, is that the grounds must disclose the basis upon which the
decision of the lower court is impugned in a clear and concise manner. If it is
clear that an appellant is criticising a finding by an inferior court on the
basis that such finding was contrary to the evidence led or was not supported
by such evidence, such a ground cannot be said to be improper merely because
the words “there has been a misdirection on the facts
which is so unreasonable that no sensible
person…, would have arrived at such a decision” have not been added
thereto. If it is evident that the
gravamen is that an inferior court mistook the facts and consequently reached a
wrong conclusion, such an attack would clearly raise an issue of law and the
failure to include the words referred to above would not render such an appeal
defective. After all, there is no magic in the above stated phrase and very
often the words are simply regurgitated without any issue of law being raised.
See, for example, the case of Sable Chemical Industries v David Peter
Easterbrook SC18-10 where it was
noted that the words “erred on a question of law” are sometimes included in
grounds of appeal but without any question of law actually being raised.
WHETHER
APPEAL BEFORE THE COURT A QUO WAS PROPER
The issue that arises is whether the court a quo was correct in concluding that,
although inelegantly cast, the grounds of appeal raised an issue of law.
I am inclined to agree with the court a quo that indeed the complaint raised in the
appeal was that the arbitrator had misdirected himself on the facts and had
consequently arrived at a wrong conclusion. Amongst other things, the reference
by the arbitrator to the absence of past warnings resulted in him finding the
respondent not guilty of negligence on that basis alone – a finding based on a
clear misunderstanding of the facts. The finding that the computers were
functioning normally and that Council operations were enhanced was made on no
evidence at all.
Clearly, therefore, whilst greater care should have been
taken in drafting the grounds of appeal, some of the grounds certainly raised
issues of law based on the allegation that the decision was either irrational
or not supported by the evidence. I am therefore satisfied that the matter was
properly before the court a quo.
However, I also agree that not all of the grounds raised
issues of law.
DISPOSITION
The charge of negligence, which was upheld by the court a
quo, was based on the conduct of the
appellant in processing and receiving clone computers without advising Council
and in effecting payment for the clone computers without the authority of the
Chief Executive Officer.
Those facts were largely not disputed by the appellant. The
decision by the court a quo, to
substitute a verdict of guilty of negligence cannot, in these circumstances, be
said to be irrational or wrong.
The court found the negligence to be gross on the facts.
Considering the appellant's crucial role in the administration of Council
funds, that finding cannot be said to be irrational….,.
Given the finding that the appellant was guilty of negligence
and that the negligence was gross, I find no basis for interfering with the
order by the court a quo upholding
the employer's decision to dismiss the appellant.
The appellant occupied a position of responsibility within Council.
In financial matters, he was the
expert and under obligation to properly advise Council so that correct
decisions could be made. As observed during the disciplinary proceedings,
councillors who constitute the Finance Committee are politicians and not
experts at financial issues and tender procedures. They have to rely on advice
given by the appellant as to who should be awarded a tender. That the quotation
by Powertec included clone computers was never brought to their attention and
it is clear, from a consideration of all the facts that they may have thought
that they were buying new, original, brand computers. The clone computers were
delivered and irregularly paid for the same day. It is also pertinent to note
that the specifications for the server required an original brand name
computer, viz “Compaq Pentium 4-IBM, Dell” and not a clone.
In my view, the
appellant cannot complain that the penalty of dismissal was inappropriate. The
Council was certainly entitled to take a serious view of the manner in which he
had misconducted himself.
The appeal must therefore succeed only to the extent that
the verdict of guilty of withholding information should be set aside.
In the result, it is
ordered as follows:
1. The appeal is allowed to the extent that the verdict of
guilty of withholding information is set aside.
2. The appeal is otherwise dismissed with costs.
