HLATSHWAYO
JA:
[1] This
is an appeal against the decision of the Labour Court where it
ordered that the appellant reinstate the respondent into employment
without loss of salary and benefits or be paid damages in
lieu
of reinstatement if reinstatement was no longer possible.
FACTUAL
BACKGROUND
[2]
The respondent was employed by the appellant as a Marketing Manager.
Sometime in 2012, the appellant resolved to renovate its front
office. The respondent being a senior employee was tasked to oversee
the implementation of the aforesaid resolution. Efforts to find
suitable vendors to do the renovations failed and as a result it was
suggested that the appellant engage the services of the respondent's
advertising agency, a company called DDH & M Advertising
(Private) Limited. It was agreed that the company would be engaged to
select reputable interior architects and to manage the project
implementation on behalf of the appellant.
[3] Sometime
in November 2012, the advertising agency wrote to the respondent
advising her of the outcome of its search for suitable contractors.
The agency brought forward three contractors. The first contractor,
Thuthukile International (Private) Limited was keen to supply but it
later pulled out due to pressures from other clients. The second
contractor was Kaschula and Co. It had certain conditions which the
advertising agency deemed not to have been standard procedures. The
last company Archi Craft Architect (Private) Limited was determined
by the advertising agency to have a combination of both the
mechanical and technical know-how to do the job.
[4] As
a result, acting upon the recommendation of the advertising agent,
the respondent on 6 November 2012 authored an internal memorandum in
terms of which permission was sought to award Archi Craft Architect
(Private) Limited the contract to renovate the offices. At a meeting
held on 28 November 2012 with the respondent's superiors including
the finance executive, it was decided that the contract would be
awarded to Archi Craft Architect (Private) Limited. This decision was
made with the respondent and her superiors being fully aware of the
company's written policy which prohibited the engagement of a
service provider without the involvement of the purchasing committee.
[5] As
the respondent and her superiors had failed to follow company
procedure, they were subsequently charged in terms of the appellant's
Code of Conduct, under Group IV offences; namely, gross negligence or
incompetence in the performance of their duties which damaged the
employer's interests. The appellant's disciplinary committee
found the respondent guilty of the charges and she was subsequently
dismissed. She appealed to the appeals committee which appeal was
also dismissed.
[6] Aggrieved
by the decision of the appeals committee, the respondent appealed to
the Labour Court seeking an order for the setting aside of the
decision of the appeals committee. The court a
quo
held that it was unproven that the respondent had flouted the
appellant's procurement policy. It further determined that all she
did was to merely advise that a certain vendor be contracted. It was
further held that in the circumstances, the respondent had not
advised anyone to by-pass the purchasing committee. In the result the
court a
quo
upheld the appeal and ordered that the respondent be reinstated or be
paid damages in
lieu
of reinstatement if reinstatement was no longer possible.
[7] Aggrieved
by the decision of the court a
quo,
the appellant has lodged the present appeal on the following grounds:
(a)
The court a
quo
grossly erred and misdirected itself on the facts when it failed to
find that the respondent had participated in the process that
culminated in the wrongful engagement of Archi Craft Architect
(Private) Limited to carry out renovations at appellant's offices.
Such a misdirection was so gross as to amount to a misdirection at
law.
(b)
The court a
quo
erred at fact, in that, on one hand it noted that in terms of the
appellant's procurement policy, all tenders had to be submitted to
the Procurement Committee for final approval and in the other failed
to find that the respondent had flouted this procedure, when all
facts pointed to this. Such misdirection was so gross as to amount to
a misdirection at law.
(c)
The court a
quo
erred in law when it failed to find that the conduct of the
respondent in that regard constituted gross negligence on her part.
(d)
The court a
quo
seriously misdirected itself when it proceeded to determine this
matter on the basis that the respondent had been accused of
contracting Archi Craft Architects (Private) Limited when in fact the
charge was that she had caused and/or facilitated the aforesaid
engagement such gross misdirection by the court a
quo
amounts to a misdirection at law.
(e)
The court a
quo
erred when it failed to find that the respondent through her
memorandum dated 6 November 2012 led to the wrongful engagement of
Archi Craft Architect (Private) Limited.
[8] At
the hearing of the appeal, the appellant submitted that the
respondent failed to follow proper channels as required by the
company's policy. The appellant further argued that instead of
securing three quotations and then submitting them to the company's
purchasing committee, the respondent secured two quotations only and
submitted them to her immediate supervisor. It was further argued by
the appellant that the court a
quo
erred in overturning the decision of the disciplinary committee which
was based on factual findings yet the court a
quo
had not found any gross misdirection on the part of the disciplinary
hearing.
Per
contra,
counsel for the respondent submitted that the respondent in the
discharge of its duties had merely recommended the engagement of
Archi Craft Architect (Private) Limited. It was submitted that the
respondent in recommending the vendor to her supervisor was not
grossly negligent nor was she incompetent in the execution of her
duties.
[9] After
hearing submissions by both parties, it seems to me that there are
only two issues for determination, and these are they:
-
Whether
the court a
quo
erred in not finding that the respondent had flouted the company
procedure; and
-
Whether
the court a
quo
erred in not finding that the conduct of the respondent constituted
gross negligence.
I
shall deal with the issues in turn.
Whether
the court a
quo
erred in not finding that the respondent had flouted the company
procedure
[10] The
appellant in its submissions argued that the respondent acted
unlawfully by setting in motion an unprocedural process that led to
the awarding of the contract to Archi Craft Architect (Private)
Limited. It further submitted that the respondent made the request to
recommend the awarding of the contract to Archi Craft Architect
(Private) Limited with the full knowledge that the appellant's
purchasing committee had not presided over the selection process. In
the circumstances the appellant submits that the court
a
quo
erred
in not finding that the respondent had flouted its company procedure.
On
the other hand, the respondent denied flouting any procedure. She
insisted that it was not her duty to select the ultimate vendor. She
further submitted that her role was to simply request, which request
could be granted or denied and that whoever contracted the vendor is
the one who by passed the company's purchasing committee.
[11] In
determining the issue before it, the court a
quo
was alive to the fact that the awarding of the contract to Archi
Craft Architect (Private) Limited violated the appellant's written
policy. Whilst recognizing this procedural irregularity the court a
quo
however did not put the blame on the respondent. In supporting the
respondent's case, the court a
quo
stated:
“… it
was not clear what her duties were in connection with the procurement
procedures… it is not clear who specifically contracted the vendor
but what is apparent is that it was not the appellant (now
respondent)… whoever contracted the vendor is the one who by passed
the committee and was thus answerable for flouting policy.”
[12] From
the record of proceedings, what is apparent is that on 5 November
2012, the respondent received a letter from the advertising agent to
the effect that they had found suitable contractors and from the
contractors found, they recommended Archi Craft Architect (Private)
Limited for the job. On 6 November 2012, the respondent acting on the
letter by the advertising agent wrote an internal memorandum that
stated as follows:
“We
are seeking the permission to contract Archi Craft Architect
(Private) Limited to carry out the Front Office renovations based on
the submissions by our agency DDH&M who we had contracted to
source for architectural and design firms bids to renovate the
offices.”
The
respondent in the memorandum sought “permission to contract”
Archi Craft Architect (Private) Limited. The respondent at that stage
and with her position as one of the senior employees implementing the
project ought to have known that as they now had a list of
prospective contractors, the list was supposed to have gone through
to the purchasing committee. That did not happen. The respondent
sought permission to contract, and permission was granted. The
respondent's submission that whoever awarded the contract was the
one who flouted policy lacks merit. What her superiors did was to
concur with the wrongful path that had been proposed by the
respondent. It follows that the procedure taken by the respondent and
the subsequent concurrence with the procedure flouted company policy.
Hypothetically,
if the renovations had been done in line with company policy and
credit was being given, surely the respondent would not have excused
herself and say that I was not involved in the final selection so do
not give me credit. The court a
quo
in
the circumstance erred in not finding that the respondent had flouted
company policy.
Whether
the court a
quo
erred in not finding the conduct of the respondent constituted gross
negligence
[13] The
argument proffered by the appellant was that at all times the
respondent was aware of the fact that the appellant had a Purchasing
Committee whose mandate was to preside over the selection of service
providers. Mr
Mutasa
for the appellant submitted that the respondent set in motion the
process that led to the unprocedural engagement of Archi Craft
Architect (Private) Limited and that the manner in which the
respondent handled the affairs of the appellant shows negligence of a
gross nature. On the other hand, the respondent submitted that she
had no final say in the awarding of the tenders and she did not
prevent anyone from complying with the procurement requirements. She
argued that the charge of “gross negligence of duty” was not
proved.
[14] To
determine if the court a
quo
erred in not finding the conduct of the respondent grossly negligent,
it is important to establish what the term gross negligence entails.
It was held in Standard
Chartered Bank of Zimbabwe Ltd v Chipininga
2004 (2) ZLR 94 (S) at 98F-99C that:
“It
has been pointed out that 'gross negligence' is a nebulous
concept, the meaning of which depends on the context in which it is
used and it is a futile exercise to seek to provide a definition
which would be applicable to all circumstances: see Govt
of Republic of SA (Dept of Ind.)
v Fibre Spinners and Weavers (Pty) Ltd 1977 (2) SA 324 (D) at 335E;
Bickle
v Minister of Law and Order 1980 (1)
ZLR 36 (H) at 41A.
It
has been described as 'ordinary negligence of an aggravated form
which falls short of willfulness'
(Bickle's
case supra);
'very
great negligence or want of even scant care or a failure to exercise
even that care which a careless person would use'.See
Prosser 'Law
of Torts'
4ed at 183.”
The
definition of the concept which has for practical purposes, been
quoted with approval in many cases was stated in City
of Harare v Chikwanda
SC70/20 wherein BHUNU JA quoted the remarks of MURRAY J in Rosenthal
v Marks
1944 TPD 172 at 180 where he said:
“Gross
negligence
(culpa
lata, crassa)
connotes
recklessness an entire failure to give consideration to the
consequences of his actions, a total disregard of duty:
see per WESSELS J in Adlington's
case supra at
p973, and Cordey
v Cardiff ke Co.
(88LT 192).” (My emphasis).
[15] It
is apparent that the question whether the respondent ought to have
been found guilty of gross negligence of duty can only be determined
by reference to evidence that proved on a balance of probability that
she totally disregarded her duties. It is common cause that the
appellant had a written down policy which provided for the procedures
to be followed in certain circumstances. It is also common cause that
the respondent had a procurement committee which had a mandate to
preside over the selection of suppliers as and when needed. In the
circumstances as there were renovations to be done, the procurement
committee was crucial in the eventual selection of the prospective
vendor. All bids that were to be considered would have to pass
through the procurement committee. This was a standard procedure that
was common to all employees especially the respondent as the
appellant's Marketing Manager. Her position in the company placed
her in a position that she knew, or she ought to have known, about
that written policy.
[16] It
is not denied that the respondent wrote to her superior recommending
the contracting of Archi Craft Architect (Private) Limited without
first going through the procurement committee. In her defence she
submitted that it was not her duty to select the ultimate supplier,
and that all she did was merely recommend which supplier they could
pick. I find no merit in that defence. As the marketing manager of
the company, and as one of the senior employees who were seized with
the duty of overseeing the implementation of the renovations at the
appellant's premises, she had a duty to ensure that the renovations
were done through lawful procedures and to ensure that the policy of
the appellant is implemented properly.
The
conduct of the respondent, as one of the employees who oversaw the
project, in recommending the awarding of the contract to Archi Craft
Architect (Private) Limited amounted to gross negligence. The fact
that she initiated the process that led to the unprocedural awarding
of the contract shows that she neglected her duty to follow proper
procedure. I associate myself with the remarks in Rosenthal
v Marks (supra)
that her actions were grossly negligent in that she totally
disregarded the consequences of her actions which amounts to a
disregard of duty. The court a
quo
after considering all the evidence should have found the respondent's
conduct grossly negligent. Accordingly this ground of appeal has
merit and it is upheld.
DISPOSITION
[17] The
respondent having been one of the senior employees and managers
responsible for the implementation of the renovation project at the
appellant's offices had the duty to make sure that at all times the
interests of her employer were looked after. It is common cause that
she authored the internal memorandum that culminated in the awarding
of the contract to Archi Craft Architect (Private)
Limited in
a way that was contrary to the appellant's company written policy.
As a result, the respondent was actively involved in the flouting of
the company's procedure. Her conduct of not following company
policy was grossly negligent as she disregarded the consequences of
her actions.
In
the result, the appeal is allowed with costs and the decision of the
court a
quo
is set aside and substituted with the following:
'The
Appeal is hereby dismissed with costs.'
BHUNU
JA:
I agree
BERE
JA: No
longer in office
Gill,
Godlonton & Gerrans, appellant's legal practitioners
Mbidzo,
Muchadehama & Makoni, respondent's legal practitioners
