KUDYA
JA:
[1]
The
appellant appeals against the whole judgment of the Labour Court (the
court a
quo),
which was handed down on 9 January 2015. The court a
quo
dismissed his appeal against the determination of the disciplinary
authority, which found him guilty of misconduct and dismissed him
from employment.
The
Facts
[2]
The appellant was employed by the respondent as a Sales Distribution
Services Manager. He was suspended from employment without any salary
or benefits on 13 December 2010. On 4 January 2011, he was charged by
the disciplinary authority with an act of conduct or omission
inconsistent with the fulfilment of the express or implied conditions
of his contract of employment in contravention of section 4(a) of the
Labour (National Code of Conduct) SI 15/2006 (the National Employment
Code).
[3]
He was alleged to have authorized the dispatch of seed maize valued
at US$931,735.06 on credit to Nelmah Holdings (Pvt) Ltd (the
agro-dealer) in violation of the requisite internal procedures of the
respondent. He contested the charge but was subsequently convicted
thereof on 13 January 2011 and dismissed with effect from the date of
suspension.
[4]
He was legally represented at the hearing. He raised two defences.
The first was that he was verbally authorized by his immediate
supervisor, Ivan Craig, to dispatch the seed maize to the
agro-dealer. The second was that the respondent's electronic credit
management system broke down and disabled him from detecting the
breach of the credit limit of the agro-dealer and stop the sales
transactions in real time. He, however, conceded that he was well
versed with the respondent's manual pre-credit check system.
[5]
The disciplinary authority found his “evidence to be full of
inconsistencies” and his “conduct reckless”. It held that Ivan
Craig did not authorize him to dispatch the seed maize to the
agro-dealer. It was common cause that the appellant did not conduct
any pre-credit checks. It was also common cause that the manual
pre-credit checks preceded the credit sales and the electronic
notification of the breach of a credit sale. It was further common
cause that the respondent's electronic sales management system was
down and could not therefore alert the Sales Office of any credit
limit breach in real time. The disciplinary authority found that by
virtue of his seniority, the appellant knew the manual internal
pre-credit checking procedures required of him before he could
authorize the sale of seed maize on credit. It, therefore, held that
the failure of the electronic system to flag the breach would not
absolve him from physically verifying the credit limit and status of
the agro-dealer before authorizing the sale. Lastly, it found that
even though the electronic warning system was down, he ignored the
verbal warning given to him by the credit controller one Thomas
Mavhurumutse on 22 October 2010 and on 28 October 2010 that the
agro-dealer had exceeded its credit limit. He, therefore failed to
stop any further deliveries to the prejudice of the respondent. He
was thus convicted of misconduct and duly dismissed from employment.
[6]
Aggrieved by the determination of the disciplinary authority, he
filed an appeal and an application for review in the court a
quo,
raising
15 grounds of appeal against conviction, an additional 5 grounds
against the penalty and a further 4 grounds of review.
The
Contentions
a
quo
[7]
In the court a
quo,
counsel for the appellant impugned the disciplinary authority's
factual findings on the basis that they constituted a gross
misdirection, which amounted to a misdirection of law to which no
sensible court applying its mind to the facts would have made. He
contended that the disciplinary authority incorrectly found that the
appellant had mero
motu
authorized the dispatch of seed maize to the agro-dealer. He argued
that the appellant had acted, as he was wont to do, on the verbal
instruction of his immediate supervisor. He contended that the
contrary finding of the disciplinary authority ignored the testimony
of Thomas Mavhurumutse and the contents of the input credit
application forms submitted by the agro-dealer for its respective
winter wheat and summer maize programs. He argued that Mavhurumutse
and the agro-dealer's representatives confirmed that Craig had
verbally authorized the appellant to sell seed maize on credit. He
further argued that Craig's signature for and on behalf of the
respondent on the summer maize application form signified two things.
Firstly, the execution of a binding contract between the agro-dealer
and the respondent. Secondly, the written authorization by Craig to
sell maize seed to the agro-dealer on credit.
[8]
He also contended that, Bramwell Bushu, who replaced Craig as his
immediate supervisor, had prior knowledge of the agro-dealer's
credit transaction. This, so he argued, was demonstrated by the
letter written to the agro-dealer by Bushu on 6 October 2010. In the
letter Bushu affirmed the respondent's ability to supply the agro
dealer's seed maize requirements specified in its letter dated 5
October 2010. Counsel further argued that the failure by the
respondent's electronic sales management system to block the
excessive credit sales led the appellant to believe that it had an
extant credit limit that had not yet been reached.
[9]
The appellant did not motivate any of his grounds of review in his
main written heads of argument a
quo.
He was prompted to do so in his supplementary heads, which he filed
in response to the respondent's heads. He, therein, strenuously
argued that his references to the conduct of Bramwell Bushu, which
only came to his attention after the disciplinary proceedings,
established his four grounds for review. The only relevant ground for
review was that Bushu was an interested and biased party who for that
reason could not have represented the respondent as the complainant
in the disciplinary proceedings. This was because he had concealed
his letter of 6 October 2010 from the disciplinary authority. The
other three grounds for review related to the subsequent fraud
charges levelled against Bushu after the hearing and the recovery
efforts the appellant purportedly initiated and negotiated with the
agro-dealer, after the misconduct came to light.
[10]
Per
contra,
the respondent made the following contentions in its written heads of
argument a
quo.
The application for review was fatally defective in that it sought to
introduce new evidence which was not before the disciplinary
authority. This evidence, comprised the arrest of Bushu for fraud
arising from the same transactions subsequent to the disciplinary
proceedings and his letter of 6 October 2010. The letter did not
constitute a credit guarantee letter but was a supply guarantee
letter. In any event, the new evidence was not only irrelevant to the
resolution of the dispute before the disciplinary authority but also
negated the hallowed principle of finality to litigation. It was
improper for the appellant to seek to try out new issues on fresh
facts simply because the first set of facts had proved inadequate.
The remaining grounds of review did not impugn the manner in which
the disciplinary proceedings were conducted. They raised mitigatory
factors, which rightly fall into the ambit of an appeal against
sentence rather than the legality, procedural propriety and
rationality of the hearing.
[11]
Regarding the appeal, it argued that the determination was rationally
linked to the facts and evidence and could not be interfered with on
appeal. It submitted that the appellant was correctly convicted and
rightly dismissed because the offence went to the substratum of and
destroyed the employment relationship between the parties.
The
findings of the court a
quo
[12]
The court a
quo
reduced 15 grounds of appeal to a single issue of whether the hearing
officer grossly misdirected himself by convicting the appellant on
the evidence that was placed before him. Likewise, the issue raised
against sentence was whether or not the sentence of dismissal was
appropriate. It held that the review grounds did not constitute
proper grounds of review. It however regarded them as abandoned as
they had not been motivated but did not make a determination on the
application.
[13]
Regarding the appeal, the court a
quo
held that the appellant authorized credit sales above the
agro-dealer's US$20,000 limit. He did so without adhering to the
prevailing manual procedures, which were known to him. He was
required to follow them before authorizing the sale. The electronic
credit sales management system would only be activated subsequent to
the mandatory manual pre-credit checks. The malfunctioning of the
electronic system did not therefore absolve him from making the
manual pre-credit checks.
[14]
It also upheld the factual findings of the disciplinary authority
that Craig did not authorize any sales in excess of the agro-dealer's
credit limit. The findings were supported by the oral and written
testimonies of Craig, Mavhurumutse, Melody, Locadia Marongwe and
Muzadzi who all interacted with the appellant at all material times.
They were also confirmed by the documentary evidence and the
probabilities. It further found that the agro-dealer could not have
concluded a summer seed maize credit sale contract with the
respondent, as suggested for the first time on appeal by the
appellant, without submitting the required credit insurance cover.
The court a
quo
further found that the probabilities demonstrated that the
appellant's conversation with Craig over the Zimbabwe Farmers Union
(ZFU) seed maize voucher program could not reasonably be construed as
constituting the disputed verbal authorization. The court a
quo,
therefore, held that the appellant had disingenuously authorized the
credit sale for the benefit of the agro-dealer in
lieu
of the ZFU voucher program.
[15]
By consent, the parties called on appeal the evidence of Craig and
Bushu and produced the letter written by the agro-dealer on 5 October
2010 and Bushu's 6 October 2010 reply. It found that Bushu's
reply did not constitute the requisite authority to open a credit
sales trading account; its absence at the disciplinary hearing did
not prejudice the appellant and its production thereat would have
served no useful purpose.
[16]
The court a
quo,
consequently, dismissed the appeal with no order as to costs. It,
however, did not pronounce itself on the application for review.
The
grounds of appeal
[17]
Irked by the decision of the court a
quo,
the appellant appeals to this court on the following grounds of
appeal:
1.
The court a
quo
erred at law in confirming appellant's dismissal when there was no
evidence that the appellant acted in a manner inconsistent with the
fulfillment of the express or implied conditions of his contract of
employment.
2.
The court a
quo
erred at law in confirming the appellant's dismissal contrary to
the evidence of Ivan Craig and Bramwell Bushu which exonerated the
appellant of any wrong doing.
3.
The court a
quo
erred at law in confirming the appellant's dismissal for misconduct
yet the record clearly shows that appellant sought authorization
before dispatching seed to Nelmah.”
He
seeks the success of the appeal with costs, the vacation of the court
a
quo's
judgment and its substitution with an order granting both the appeal
and the application for review with costs, his reinstatement with
salary and other benefits, alternatively damages, which may be
computed by the Labour Court, if the parties fail to agree thereon
within 30 days of the substituted order.
[18]
At the commencement of the hearing, Mr Magogo,
for the appellant moved for the addition of two other grounds of
appeal. After some initial opposition, Mr Sithole
for the respondent conceded to the addition thereof. Consequently,
the following two grounds of appeal were, by consent, added to the
notice of appeal as numbers:
(4)
The court a
quo
erred in finding that the appellant's 1st
ground of review alleging interest in the cause did not raise a
review ground and;
a
fortiori,
having heard new evidence on review, in failing to record the full
evidence given by the parties and to determine the effect of the new
evidence on that review ground; and
(5)
The court a
quo
erred in groundlessly commenting that the review application had been
abandoned and in leaving the same hanging and undetermined.
The
contentions before this Court
The
preliminary applications
[19]
At the commencement of the hearing before this Court, Mr Magogo,
for the appellant, took two preliminary applications. Firstly, he
sought the vacation of the judgment of the court a
quo
and the remittal of the matter before a different judge. This was
because of the common cause fact that the transcript of the
proceedings and notes of the presiding judge a
quo
could not be located after diligent search. The transcript and the
notes could also not be reconstructed due to the 5-year time lapse
between the dates on which judgment was handed down and the request
for reconstruction was made. Secondly, he sought the amendment of the
notice of appeal by the addition of the two grounds that are set out
in para (18), above.
[20]
After interacting with the Court, Mr Magogo
abandoned the first application. He conceded that it was in the
interests of the due administration of justice that there be finality
to this matter, which has been raging between the parties for the
past decade. It was therefore dismissed. The second application was,
however, granted by consent.
The
substantive contentions on the merits
[21]
On the merits, Mr Magogo
contended that the conviction was not established by the evidence
called at the disciplinary hearing. He argued that Craig and Bushu
exonerated the appellant of any wrongdoing. He strenuously argued
that the court a
quo
did not properly assess the common cause evidence of the telephonic
conversation between Craig and the appellant, which took place when
the appellant was in the company of Nyathi and the agro-dealer's
Mahupete. He submitted that a proper consideration of the evidence
would have led to the inevitable conclusion that Craig had verbally
authorized the sales transaction and resulted in the appellant's
acquittal. He also argued that an acquittal would also have followed
from the correct appreciation of the minutes of the meeting held at
Wild Geese Lodge on 15 December 2010 between the top management of
the respondent and the agro-dealer.
[22]
Regarding the two additional grounds of appeal, Mr Magogo
argued that they raise the issue of whether or not the review
application was dealt with and the manner of its disposal. The review
grounds concerned the alleged interest and bias of Bushu, who acted
as the complainant at the hearing. Counsel argued that the
non-disclosure of Bushu's letter of 6 October 2010 and of his
arrest for fraud ex
post facto
the hearing, constituted a gross misdirection by the disciplinary
authority. He, however, failed to articulate how the disciplinary
authority's failure to consider evidence that was never placed
before it could ever amount to a misdirection. He also argued that
the failure to make a substantive order on the application for review
was a misdirection, which would be subject to correction by this
Court.
[23]
Mr Sithole
made the following contrary submissions. The evidence on record
confirmed that the appellant was guilty of the misconduct for which
he was charged with. The evidence of Craig, Bushu, Muzadzi and
Locadia Marongwe implicated him of wrongdoing. The tele conversation
between Craig and the appellant on 19 October 2010, which preceded
the first dispatch of seed maize, and the minutes of the meeting at
the Wild Geese Lodge did not exonerate him of any wrongdoing. His
assertion that he did not have access to the credit limit modules was
controverted by Melody and Mavhurumutse. In any event, it was common
cause that he never conducted the pre-creditworthiness checks
required of him before authorizing the dispatch of the seed maize.
[24]
He further submitted that the two additional grounds of appeal could
not properly be related to by this Court in view of the finding a
quo
that the appellant had abandoned the application for review. He
submitted that the court a
quo
dealt with the application for review and concluded that it had been
abandoned. He argued that the court a
quo
only assessed the evidence of the two witnesses that were called
before it in the context of an appeal and not of an application for
review. He further contended that the appellant's failure to assail
the finding on abandonment is fatal to his case. He therefore
implored the Court to dismiss the appeal in its entirety.
The
Issues
[25]
The two issues that arise from the grounds of appeal are, firstly,
whether the court a
quo
correctly upheld the conviction of the appellant, which resulted in
his dismissal from employment and secondly, whether the application
for review was abandoned and a substantive order pronounced a
quo.
Analysis
Whether
or not the court a
quo
correctly upheld the conviction of misconduct and dismissal from
employment
[26]
It is trite that an appeal court will not lightly interfere with the
factual findings of a trial court unless that court is found to have
proceeded on some material misappreciation or misapplication of the
law and/or the facts or where it has relied on some extraneous or
irrelevant consideration or has failed to take into account some
particularly relevant matter. See
Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 and
Zimbabwe Homeless People's Federation et al v Minister of Local
Government and National Housing & Ors SC 94/20 at p37.
[27]
The disciplinary authority made the following findings. The tele
conversation between the appellant and Craig on 19 October 2010
related to the supply of seed maize to the ZFU's Nyathi. Craig
confirmed that the respondent had an extant voucher program with the
ZFU and not the agro-dealer. The seed maize for the voucher programme
would be drawn down on the trading account of the ZFU but there were
no vouchers or orders bearing the ZFU stamp and the signatures of its
signatories. The appellant mero
motu
demanded vouchers from the agro-dealer and proceeded to sell seed
maize to it on credit. He was duty bound to conduct manual
pre-creditworthiness checks of the agro-dealer before he could
authorize his subordinates to sell seed maize to it on credit. He was
warned by the credit controller Mavhurumutse when the credit limit
exceeded the authorized limit of US$20,000 by US$83,936.90 on 22
October 2010 and by US$489,000 on 28 October 2010. He ignored both
warnings. In any event, he had no reason to mero
motu
stop further deliveries of seed maize on 30 October 2010, if his
version that he had been authorized to accord unlimited credit to the
agro-dealer was true.
[28]
The ratio
decidendi
of the court a
quo,
in respect of the conviction, is found at page 145 of the appeal
record. The court stated that:
“In
the present case, if the evidence led is accepted, it does not appear
that the decision arrived at was outrageous in its defiance of logic.
The defence to the charge was that Ivan Craig had authorized the
purchase by Nelma. He denies it and his denial is supported by other
witnesses. It is also supported by the fact that Nelma did not have a
good history as a credit customer. This was known to the appellant.
The so-called authority as explained by the appellant himself does
not strictly refer to Nelma but to Mr Nyathi and ZFU. Whichever way
the matter is taken, the appellant had a duty to check on the credit
limit. He had to know that in order to monitor. In the light of all
this the decision to convict does not sound wrong.”
[29]
The court a
quo
thus confirmed the factual findings of the disciplinary authority.
The confirmation is indeed supported by the oral testimony of the
witnesses, the documentary evidence and the probabilities of the case
that was before the disciplinary authority. Its findings do not fall
into the ambit of those that are so, outrageous in their defiance of
logic or accepted moral standards that no sensible court applying its
mind to the questions at issue could have arrived at. We are
therefore satisfied that he was properly convicted by the
disciplinary authority and that the court a
quo
correctly upheld the conviction. The first three grounds of appeal
are therefore devoid of merit and ought to be dismissed.
[30] It
is noteworthy that the appellant did not impugn the penalty of
dismissal in his grounds of appeal. We, therefore uphold it.
Whether
the application for review was abandoned and whether the court a
quo
pronounced a substantive order thereon
[31]
Mr Magogo's
submission that the application for review was not abandoned runs
contrary to the findings of the court
a quo.
It remarked thus in its judgment, at p143 of the appeal record:
“It
will be noted that the application for review appeared to have lost
its way and was not heard of in the addresses. The issues that were
clearly pursued were those of the appeal. In fact, these are not
review issues except for the first one if it can be proved. If it can
be proved it would fall under the appeal grounds as facts which can
show that the hearing officer grossly misdirected himself on the
facts proved. Therefore, there was no review case at all. None was
genuinely pursued. There was no need to have a separate case for
review.”
[32]
In our view, the correctness of this finding is affirmed by the fact
that the appellant did not assail these findings in its written heads
of argument or even in the additional grounds of appeal. This was in
spite of the categoric assertion advanced by the respondent in para
2.5 of its written heads of argument that:
“The
court a
quo
found that the same was not pursued at the hearing as the appellant
only pursued the appeal. See
page 143 of the record, last paragraph. This
finding by the court a
quo
has not been challenged in the present appeal and the issue of the
review is therefore, resolved”. (emphasis by the respondent).
[33]
We also agree with Mr Sithole's
submission
that, the appellant's failure to impugn the finding was fatal to
the appeal. In our view, the appellant could not properly appeal
against a review that it had abandoned. In the circumstances, we
would dismiss the fourth ground of appeal.
[34]
We, however, agree with Mr
Magogo
that the application for review was before the court a
quo.
It is trite that where a party fails to motivate a ground of appeal,
it is regarded as abandoned. An abandoned ground of appeal is struck
out. See Colcom
Foods Ltd v Taruva SC 107/20
at
p5 and Equity
Properties (Pvt) Ltd v Al Sham Global BVI Limited
SC
101-21 at p9. In our view, where, as in this case, an application for
review is enrolled before a court and is regarded as abandoned, it
ought to be dismissed. We, therefore agree with Mr Magogo
that the court
a quo
ought to have pronounced itself on the application for review. In
terms of section 22(1)(a) of the Supreme Court Act [Chapter
7:13],
this Court:
“shall
have power to confirm, vary, amend or set aside the judgment appealed
against or
give such judgment as the case may require.”
(my emphasis)
We
believe that this a proper case to invoke the power vested in this
Court by the closing phrase of section 22(1)(a),
supra,
that is “to give such judgment as the case may require.” We
will, therefore, amend the order a
quo
by inserting an additional para 2 to the effect that: “the
application for review be and is hereby dismissed.” The net effect
of the amendment is that the initial para 2 will therefore become
para 3.
[35]
In view of the finding in para [34] above, the fifth ground of appeal
partially succeeds.
Costs
[36]
The employer has substantially succeeded in this appeal. However, as
this is a labour case, we see no reason why each party should not
bear its own costs.
Disposition
[37]
Accordingly, it is ordered that:
1.
The appeal succeeds in part.
2.
The appeal against conviction is dismissed in its entirety.
3.
The judgment of the court a
quo
is amended by the insertion of para 2, so that it reads:
“2.
The application for review be and is hereby dismissed.
3.
Each party shall bear its own costs.”
4.
Each party shall bear its own costs.
GWAUNZA
DCJ:
I agree
MWAYERA
JA:
I agree
Matsikidze
Attorneys-At-Law,
the appellant's legal practitioners
Kantor
& Immerman, the respondent's legal practitioners
