MAKONI
JA:
1.
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
2.
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).
3.
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.
4.
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.
5.
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$610,000.00. 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$610,000.00 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$267,760.00 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.”
6.
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.
7.
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.
8.
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.
9.
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.
10.
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
regulations. Consequently, the appellant was dismissed from his post
as Deputy General Manager of the respondent on 14 August 2020.
11.
Aggrieved
by the decision of the Disciplinary Authority, the appellant filed an
appeal in the court a
quo.
SUBMISSIONS
BEFORE THE COURT A QUO
12.
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.
13.
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.
14.
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
15.
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.
16.
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.
17.
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.
18.
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.”
19.
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.
SUBMISSIONS
BEFORE THIS COURT
20.
At
the hearing of the appeal, and following
an exchange with the court, Mr Uriri,
counsel for the appellant, conceded that the second ground of appeal
was argumentative and not concise. He consequently abandoned it.
21.
On
the merits, Mr Uriri
submitted
that this
case shows that the court a
quo
grossly misdirected itself on the facts and that such misdirection
amounts to an error of law.
He contended that it was objectively impossible for the appellant to
perform the obligations in respect of which the charge was based
because of the following 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 in which the omission is alleged to
have taken place;
(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 had to pass through the general manager only; and
(iii)
there was no way the appellant could have known of the operational
challenges faced by the respondent in the circumstances because he
was a senior managerial employee who was not always on the ground.
Furthermore, none of the subordinates who would have had such
knowledge or information reported to him as they all reported
directly to the substantive General Manager.
22.
On
the contrary, Mr Dube,
for the respondent, submitted
that the appellant failed and/or neglected to advise 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 when he acted as the General Manager
and attended respondent's Board meetings. He further submitted that
the aforementioned material non-disclosures created the impression
that everything was in order when in fact there were serious
operational challenges that threatened the company's ability to
deliver its mandate. He concluded his submissions by arguing that the
appellant failed to perform his duties during the tenure of his
contract of employment as encompassed by his job description which
provided that he should report on the company's overall performance
and provide input for Board meetings.
ANALYSIS
23.
Although
the appeal raises several grounds of appeal, my considered view is
that there is only one issue for determination, that is, whether or
not there was sufficient evidence to justify the appellant's
conviction and dismissal from employment.
24.
The
complaint in appellant's first ground of appeal is that the court a
quo
erred in law in not finding that the principle lex
non cogit ad impossibilia
applied to the appellant's circumstances. The nub of the charges
that the appellant was facing was his omission to advise the Board on
the operational challenges that the company was facing. The principle
is that objective impossibility in discharging a legal duty is always
a defence when the type of conduct charged is an omission.
25.
The
appellant's main contention is that the court a
quo
erred by finding him guilty of committing
any act of conduct or omission inconsistent with the fulfilment of
the express or implied conditions of his contract, in circumstances
where it was objectively impossible for him to
perform the acts complained of as forming the charge against him.
26.
The
law regarding the defence of objective impossibility was espoused in
the case of Watergate
(Pvt) Ltd v Commercial Bank of Zimbabwe
2006 (1) ZLR 9 (S) at 14C-E, wherein this Court held that:
“…the
general rule is that the impossibility of performance is an excuse
for the non-performance of an obligation: impossibilium
nulla obligatio est.
However,
whether or not the general rule applies in a particular case would
depend upon the circumstances of the case and the nature of the
impossibility.
In this regard, I can do no better than quote what BOSHOFF JP said in
Bischofberger
v van Eyck
1981
(2) SA 607 (W). At 611BD, the learned JUDGE PRESIDENT said:
'…
when
the court has to decide on the effect of impossibility of performance
on a contract, the court should first have regard to the general rule
that impossibility of performance does in general excuse the
performance of a contract, but does not do so in all cases, and
must then look to the nature of the contract, the relation of the
parties, the circumstances of the case and the nature of the
impossibility to see whether the general rule ought, in the
particular circumstances of the case, to be applied.
In this connection, regard must be had not only to the nature of the
contract, but
also to the causes of the impossibility.
If the causes were in the contemplation of the parties, they are
generally speaking bound by the contract. If, on the contrary, they
were such as no human foresight could have foreseen, the obligations
under the contract are extinguished.'” (underlining for emphasis)
27.
In
order for the defence of impossibility to succeed, the impossibility
must be objective in the sense that it must be a real impossibility
which is not based on a party's disinterest or unwillingness to
perform their contractual duties. This is the position which has been
accepted by this Court in the case of Firstel
Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd
SC 1/15 at p10, where PATEL JA (as he then was) held that:
“It
is trite that the courts will be astute not to exonerate a party from
performing its obligations under a contract that it has voluntarily
entered into at arms length ……. In particular, it must be shown
that the impossibility is objective and absolute in contradistinction
to one that is merely subjective or relative.”
28.
Furthermore,
the impossibility to perform must not only temporarily prevent a
party from performing their contractual obligations. It must be one
where performance of the contract is finally and completely
impossible. See the case of Mutangadura
v TS Timber Building Supplies
2009
(2) ZLR 424 (H) at 429C-F.
29.
Having
outlined the principles to consider in applying the defence of
objective impossibility, I now turn to determine whether the
circumstances in which the appellant found himself, entitled him to
be excused for his failure or omission to appraise the respondent's
Board of the operational challenges that the company was facing.
30.
Mr
Uriri
for the appellant contends that it was impossible for the appellant
to perform his duties as the Acting General Manager in the following
respects. The appellant could not inform the Board of the operational
problems plaguing the company due to the fact that the Board did not
convene during the material times that he was acting as the General
Manager.
31.
That there was no Board that was convened at the relevant times is a
fact that is admitted by the respondent. Such an admission cements
the appellant's case that it was impossible for him to advise the
Board of the problems faced by the company for the simple reason that
the Board did not convene.
32.
The
effect of an admission has been held to be the following in the case
of Potato
Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd
& Ors
HH45-17 at p4;
“Indeed
the effect of an admission is settled law. Once made it binds its
maker with the attendant consequences: see Kettex
Holdingis P/L v S Kencor Management Services P/L HH
236-15.”
33.
The
consequences of making an admission which is not withdrawn is that it
will not be necessary to prove the admitted fact(s): Adler
v Elliot
1988
(2) ZLR 283 (S) at 288C. In addition, this Court, in the case of
Mashoko
v Mashoko & Ors
SC 114-22, held that:
“The
law on admissions in pleadings and indeed in evidence, is also
settled. A party to civil proceedings may not, without the leave of
the court, withdraw an admission made, nor may it lead evidence to
contradict any admission the party would have made. By equal measure,
a party is not permitted to attempt to disprove admissions made.”
34.
The
above position is also provided for in section 36 of the Civil
Evidence Act [Chapter
8:01]
in the following manner:
“36.
Admissions
(1)
An admission as to any fact in issue in civil proceedings, made by or
on behalf of a party to those proceedings, shall be
admissible in evidence as proof of that fact, whether the
admission was made orally or in writing or otherwise.
(2)…
(3)
It shall not be necessary for any party to civil proceedings to
prove any fact admitted on the record of the proceedings.”
35.
This
point was conceded by Mr Dube
upon being engaged by the court. He further conceded that no evidence
was led by the respondent tying down the appellant to the acts of
omission, as particularized in the charge sheet, to the specific
dates mentioned in count one when the appellant was the Acting
General Manager.
36.
I
agree with the appellant that as Mr Chiganze, the respondent's
Board Chairman, admitted under cross-examination at the disciplinary
hearing, that there was no properly convened Board at the material
times, there was no onus on the appellant to prove that indeed the
Board did not sit which resulted in him failing to advise it of the
problems faced by the company. In view of the above the court a
quo
should have upheld the appellant's defense of objective
impossibility in respect of count one.
37.
Regarding the second count, Mr
Uriri
submitted that it was also a misdirection for the court a
quo
to find that the appellant, as the Deputy General Manager, omitted to
advise the Board of the
operational
challenges when the common cause facts and evidence show that 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 done by the General Manager only. The
appellant was not the General Manager.
38.
To add on to the above submissions, the appellant's predicament was
further compounded by the fact that he had no subordinates reporting
to him on the company's operations. The respondent's organogram
was amended by removing all subordinates that were under him. The
amendment was countersigned by the General Manager. The position was
corroborated by the evidence led by the respondent. Two of its
witnesses confirmed that they would report operational challenges to
the Chief Engineer and not to the appellant. The Chief Engineer had
been removed as a subordinate of the appellant.
39.
It was also common cause that with this type of organizational
set-up, the appellant could not have known of any operational
challenges being faced by the company, which he would have had to
appraise the Board of unless he personally visited the sites.
40.
The next ground of appeal attacks the court a
quo's
finding that reporting to or advising the Board Chairman in respect
of issues meant for the whole Board of Directors at a properly
convened meeting was enough to comply with the requirement to inform
the Board and that appellant's failure and/or neglect to report or
advise the Board Chairman, as opposed to the Board, was fatal as to
go to the root of his employment contract.
41.
In so finding, the court a
quo
misdirected
itself. There is a clear distinction between the Board of Directors
and the chairperson of the Board. According
to Black's
Law Dictionary 2nd
ed
a
Board is defined to mean “a
committee of persons organised under authority of law in order to
exercise certain authorities, have oversight or control of certain
matters, or discharge functions…….”
Reporting
to the chairperson of the Board would not have sufficed as
performance of the appellant's duties as the Acting General Manager
or as Deputy General Manager for the simple reason that the chairman
does not constitute the Board on his own. This
court has time and again pronounced that what constitutes a Board of
Directors is a properly convened and constituted Board of Directors
as prescribed in terms of the company's articles of association or
other governing documents: Crown
and Anor v Energy Resources Africa
Consortium
(Private) Limited & Anor
SC
3/2017.
42.
This
proposition was alluded to by GARWE JA (as he then was) in the case
of Dube
v Premier Service Medical Aid Society & Anor
SC 73/19 at pp14-15 para 39:
“Whilst
the deponent may be the chairperson of the Board of Directors of the
first respondent, that position does not, on its own, clothe him with
the necessary authority to represent the first respondent's Board
of Directors.”
43.
The fact that no Board was convened is one that was admitted by
the respondent. The admission that there was no Board that was
convened sufficient proof that it was impossible for appellant
to advise the Board of the operational challenges that the
company was facing. The court a
quo
clearly misdirected itself in its finding that the appellant should
have reported to the Board Chairman as he is the face of the Board.
Such a finding has no foundation at law.
44.
Mr Uriri
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 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 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.
45.
In Proton
Bakery (Pvt) Ltd v Takaendesa
2005
(1) ZLR 60 (S) at p62E-F 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.”
46.
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.
47.
The next ground of complaint is that the court a
quo
erred and misdirected itself, in any event, in not finding that
there existed 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.
48.
Mr Uriri
submitted that the law is that the appellate court can interfere
with the factual findings of a lower court if such findings
are irrational. The principle is that the decision impugned must
on the facts be so grossly irrational and outrageous in its
defiance of logic that no reasonable person having applied his
mind to the question at issue could have arrived at that
decision. For the proposition he relied on the authority of Hama
v National Railways of Zimbabwe
1996
(1) ZLR 664 (S) at 670C-D.
49.
He further submitted that failure to properly apply one's mind to
the facts in issue amounts to failure to take proper and relevant
consideration of the question in issue. This Court can interfere with
a decision arising out of irrelevant considerations or upon mistaken
view of the facts.
50.
In
Barros &
Anor v Chimphonda
1999
(1) ZLR 58 (SC) at 62F-63A the
court said:
“The
attack upon the determination of the learned judge that there were
no special circumstances for preferring the second purchaser
above the first - one which clearly involved the exercise of a
judicial discretion - may only be interfered with on limited
grounds. See
Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.
These
grounds are firmly entrenched. 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, provided always has the materials for so doing.
In short, this court is not imbued with the same broad
discretion as was enjoyed by the trial court.”
51.
Based
on the above authorities, I find that it was an error and mistaken
view of facts for the court to find that the appellant was
guilty of the charges merely because he failed to advise the
Board Chairman when the charge sheet speaks of the Board of
Directors. In any event, the appellant's contract of employment and
his job description mandated him to report to the General Manager and
not to the Board. It is a fact that there was a resolution by
the Board that all communication to the Board be made only by
the General Manager. The appellant was not a General Manager of
the respondent. He was just a Deputy General Manager who fell
within the genus of those specifically prohibited from
communicating with the Board of the respondent on all issues to
do with the operations of the company. This was a common cause
fact which the court a
quo
was expected to accept as proven without further ado.
52.
It was also common cause that there were no subordinates who reported
to him on what was happening on the ground. The court a
quo
appositely described him as a “lone ranger”. There being no
subordinate reporting directly to the appellant, there was no
way that the appellant could have known of the
operational challenges that the company was facing. There
was therefore no basis for the court a
quo
to confirm the findings of the Disciplinary Authority in this regard.
DISPOSITION
53.
In
the light of the foregoing analysis, it is my finding that in the
circumstances of this case, the court a
quo
misdirected itself in a number of respects and this Court can safely
interfere with its decision. The Disciplinary Authority reached a
conclusion which was not supported by the evidence before it. The
court a quo erred in upholding that decision. The judgment must be
vacated.
54.
Accordingly,
it is ordered as follows:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside and substituted with the following:
“(a)
The appeal be and is hereby allowed with costs.
(b)
The judgment of the Disciplinary Authority, per Honourable W.
Mandinde be and is hereby set aside and is substituted with the
following:
'(i)
The finding of guilty by the Disciplinary Authority and the resultant
dismissal of the appellant from employment be and is hereby set
aside.
(ii)
The appellant be and is hereby reinstated without loss of salary and
benefits from the date of suspension, being the 20th
of September 2019.
(iii)
In the event that reinstatement is no longer tenable, the respondent
shall pay the appellant damages in lieu
of reinstatement to be agreed between the parties failing which
either party may approach the court a
quo
for quantification.'”
MAVANGIRA
JA: I
agree
CHITAKUNYE
JA: I
agree
Mutumbwa,
Mugabe & Partners,
appellant's legal practitioners
Dube,
Manikai & Hwacha,
respondent's legal practitioners
