REPORTABLE
(47)
Judgment
No. SC 57/03
Civil
Appeal No. 304/01
TM
SUPERMARKET v ELISHA MANGWIRO
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA
HARARE,
NOVEMBER 3, 2003 & FEBRUARY 23, 2004
T
Biti,
for the appellant
S
Mushonga,
for the respondent
GWAUNZA
JA: The appellant appeals against an order of the Labour Court, which
gave it the option to either reinstate the respondent
without any
loss of benefits, or pay him damages in lieu of reinstatement.
The
facts of the matter are as follows: The respondent was employed as
a branch manager by the appellant, which operates a chain
of
supermarkets throughout the country. In December 1998, the
appellant was charged with and found guilty of conduct, act or
omission
inconsistent with the fulfillment of the expressed or
implied terms of his contract. He was subsequently dismissed from
his employment.
The details
of the conduct of which he was found guilty are contained in his
letter of dismissal and are cited as follows in the
judgment of the
court a
quo:
1. He
failed to discover and investigate three missing reset numbers. (one
that occurred between 20 and 31 October 1998 and two on
consecutive
weeks between 10 and 25 November 1998).
The total cash lost by the company from one till operator was $24
896,67.
2. He
did not timeously take disciplinary action against eight till
operators with huge cash shortages in one week totalling $6 721,14
(see the attached auditors report for the breakdown).
3. He
failed to adhere to basic administrative systems and procedures
stipulated for controlling and managing cash generated at the
branch.
His failure to adhere to stipulated systems resulted in the loss to
the company of a total of $69 975,11.
4. He failed to ensure proper
filing and storage of till audit rolls and DBS printouts. Some
audit rolls and DBS printouts were
missing on 15 December 1998 when I
was carrying out investigations and are still missing to date.
The
letter from the appellant, in which these charges were laid out, had
the following conclusion:
Cash
management is critical to the success of our business. Mr Mangwiro
had abdicated critical controls notwithstanding the fact
that he was
instructed to handle such very important aspects of control himself.
The degree and extent of his ineptitude coupled
with the
consequential loss suffered by the company were found to be acts,
conduct or omission inconsistent with the fulfilment of
the express
or implied conditions of his contract of employment.
Therefore his blatant abdication and negligence of critical
controls of our business could not be condoned.
Mr
Biti for
the appellant contends the decision of the court a
quo on
the various counts with which the respondent was charged were wholly
questions of law and that therefore the appeal is properly
before
this Court.
Mr
Mushonga,
for the respondent, argues on the other hand that there were no
issues of law arising in the grounds of appeal cited by the
appellant.
Further, that even were this court to arrive at a
different conclusion on the facts placed before the court a
quo, it
would still have to determine whether the decision of the court a
quo was
so outrageous in its defiance of logic that no sensible person who
had applied his mind to the question to be decided, would have
arrived at it.
This Court must therefore first
determine whether the appeal is properly before it.
It is trite
that an appeal from the labour court to this Court can only be on a
point of law. (See the numerous authorities on the
determination of
what constitutes a point of law, that include Muzuwa
v United Brothers (Private) Limited 1994
(1) ZLR 217 (S),
National Foods Limited v Mugadza SC
105/95
and
Reserve Bank of Zimbabwe v Granger and Anor SC
34/2001).
Mr
Biti submits, in
relation to the first charge brought against the respondent, that the
court a quo
misdirected itself on a question of law in two ways;
(i) by determining that the task
in question was one that could be delegated; and
(ii) by making a finding of
fact to the effect that the respondents role was restricted to
spot checks when his job
description specifically provided that
the responsibility to record the till resets was his (ie branch
managers) personally.
As
far as the issue of delegation of the responsibility in question is
concerned, I am persuaded by the appellants contention that
the
determination of whether or not the function in question was one that
the respondent could delegate was a question of law.
In Media
Workers Association of South Africa and Ors v Press Corp of South
Africa Limited 1992
(4) SA 791 (A) the learned judge pointed out that the term question
of law is used in three distinct though related senses.
In
relation to the third sense, he stated:
and third, any question which is
within the province of a judge instead of the jury is called a
question of law.
I
am satisfied the determination, based on an interpretation of the
provision in question, of whether or not the respondent could
delegate the task in point, properly falls within the province of
a judge.
The
evidence before the Court shows that the respondents
responsibilities in respect of re-set numbers mentioned in the first
charge
brought against him were explained during the proceedings in
the court a quo.
The relevant paragraph of the TM Management Controls Manual was read
to the court a quo,
as follows:
Reset
numbers are recorded separately in a book by the Branch Manager and
cross-checked with the weekly Balance Summary.
By
his own admission, the respondent did not personally record the till
reset numbers in a Tills Reset Control Book, as required,
but
delegated the function to one of his subordinates. He thereafter
failed to follow the matter up to ensure that the task had
been
properly carried out. One result of this delegation of
responsibilities was that the appellant was defrauded of the amount
referred to. Given the facts placed before the court on that charge
it is evident that the court a
quo did not give due
weight to the clause in the appellants manual that set out the
function that the respondent was to personally
carry out. This is
evident from the courts assessment of this charge, where it is
noted as follows in the judgment:
I
find it incredible and highly improbable that the Branch Manager
could have been required to scrutinize the work of till operators
when there were supervisors and section managers to do the job. It
sounds more probable and reasonable to this Tribunal that it
was the
responsibility of supervisors and section managers to scrutinize the
work of till operators and draw any irregularities to
the appellants
attention. In the circumstances I believe the appellant when he says
his roll (sic)
was restricted to carrying out spot checks which were not meant to
unearth all anomalies and irregularities.
Mr
Biti contends,
correctly, in my view, that contrary to this assessment, the
responsibility in question was not about scrutiny or spot
checks, but
about who recorded the till resets. The manual was very specific as
to who was to shoulder this responsibility. It
was the manager.
Therefore, the question of it being probable that supervisors
were to do it, did not arise.
I am also persuaded by the
contention that the court a
quo in this particular
respect misinterpreted the evidence placed before it. This Court has
held, in Reserve Bank
of Zimbabwe v Corrine Granger
supra
that such a circumstance amounts to a misdirection in law. At p 6
of that judgment, MUCHECHETERE JA stated as follows:
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.
This
authority, I find, is apposite in
casu. The court a
quo took the view that
the responsibility in question entailed simply checking the resets
and not recording the reset numbers. The evidence
makes it clear
this was not so. The misdirection of the court is thus evident.
The
other charges brought against the respondent put in question his
style of management in relation to:
(i) the
extent to which he supervised the work of
various levels of subordinates
working under
him.
(ii) the
determination of what responsibilities to
delegate, and to whom and
(iii)
the actions he was expected to take to ensure
that those subordinates who stole
from the
supermarket or
otherwise failed to perform to
expectation,
were disciplined.
I
find merit in the appellants submission that the decision of the
court a quo
on these issues was on points of law.
Lastly
the appellant takes issue with the decision of the court a
quo that even if there
was admitted negligence on the part of the respondent, that alone was
not enough to justify his dismissal. The
contention is made for the
appellant that the respondent was not charged with negligence, but
with conduct inconsistent with the
implied or express terms of his
employment contract. As a result, the appellant contends, the
determination by the court a
quo that negligence
was not a basis for the respondents dismissal was a serious
misdirection.
I
have no doubt that the basing of a conclusion on non-existent facts,
in the case, the absence of a charge of negligence, does amount
to a
misdirection at law.
I
am satisfied, in the result, that the sum effect of the appellants
appeal is to raise points of law. Such appeal therefore,
is properly
before this Court.
Before
I deal with the merits of the appeal, it is pertinent to note that
the respondent, while admitting that the appellant did suffer
the
financial loss referred to, denied any fault on his part. It is
noted in the judgment of the labour court that his defence
was simply
that as branch manager, he was not expected to attend to the minute
details pertaining to the running of the supermarket.
With
regard to the first charge brought against the respondent, and on the
merits, it is contented for the appellant that while in
terms of its
Management Controls Manual, various functions were assigned to
different officers (e.g. section managers and till operators),
the
function of recording reset numbers separately in a book and cross
checking with the weekly balance summary, was assigned specifically
to the Branch Manager, who in this case was the respondent. It is
further contented that therefore, this was not a function that
he
could delegate. Even assuming he could delegate, it is also
contended, the onus lay on him to carefully supervise the subordinate
he had delegated the function to, to satisfy himself the work had
been done properly. The appellant avers the respondent had not
discharged this burden.
I
am persuaded there is merit in these submissions. Had the intention
of the appellant been for any other official to record the
reset
numbers separately in a book, it is not unreasonable to assume that
the relevant provision in the management manual would have
been so
worded as to convey that intention. That this is not so in this
case suggests an intention to have the particular function
personally
carried out by the branch manager. According to the evidence, the
task in question was directly linked to cash management,
said to be
critical to the success of the appellants business. It is
stressed that for any supermarket, it is the cash generated
on a
daily basis that has to be protected most. The evidence of Mr
Mashingaidze
(Mashingaidze), representing the appellant in the count below,
was to the effect that a missing reset number represented
a loss to
the supermarket since the cash paid for the purchase of goods through
the till in question would not be recorded. According
to
Mashingaidze this meant nobody knew:
that the till has been operated
and the only check for the manager on a weekly basis is to check
those reset numbers.
It
was also Mashingaidzes evidence that this was the reason the reset
control book had to be kept personally by the branch manager.
In
the face of the respondents abdication of this
responsibility, it is contended for the appellant that the
respondents
actions amounted to gross dereliction of duty since he
not only delegated where he should not have done so, he then failed
to check
that the task he had delegated had been carried out
properly. Because of that conduct, the appellant suffered financial
loss.
I
am satisfied the respondent delegated to a subordinate a function
that, given its sensitive nature, he should have carried out himself.
He compounded the error by not checking to see that the work had
been done properly. This, in my view, suggests an inability to
appreciate the seriousness of ones responsibilities. This is
particularly so given the fact according to Mashingaidze,
that the appellant had
taken the trouble to stress to each and everyone of its managers, the
importance of personally keeping the reset
control book. The
respondent thus defied both the appellants Management Control
Manual, and the appellants explicit instructions.
His conduct
resulted in substantial financial loss to the appellant.
I
am satisfied such conduct was inconsistent with the fulfillment of
the implied and express conditions of his contract.
The
respondent was also charged with failing to timeously take
disciplinary action against eight till operators responsible for
shortages in one operational. He did not deny that the loss
suffered by the appellant was due to the conduct of the errant till
operators. His defence was that it was not his responsibility to
initiate disciplinary proceedings, since such responsibility lay
with
one of his subordinates, referred to as a designated officer. He
believed that he would have been accused of interfering with
the
investigations of the designated officer if he had pressed the
latter on his handling of the task.
I
do not find merit in these averments. The respondent occupied a
senior position within the appellant. As branch manager, he had
overall responsibility to ensure that the business of the appellant
was conducted properly and efficiently. He was ultimately
accountable
for all that happened at and within his branch. Because
of that overall responsibility and accountability the respondent
would have
been acting within his mandate had he instructed the
relevant subordinates to investigate the shortages that had been
drawn to his
attention.
That
this is what the appellant expected the respondent to do was made
clear by Mashingaidze, who said there could not have been any
question of the respondent interfering if what he had done was
to properly and timeously instigate investigations into the
suspected
cases of fraud. Mashingaidze made it clear that the appellant
expected its branch managers to maintain total control
over all that
happened within the supermarket, and not to entertain high
expectations of subordinates being able to efficiently and
honestly
discharge their respective duties.
I
find, again, that the respondents conduct is
suggestive of an inability to appreciate the importance of his
responsibilities. It also indicates a readiness to delegate, which
was not matched with an appropriate degree of supervision. That
such conduct clearly fell short of what is expected of a manager
was
underlined by the resultant financial loss to the appellant.
The
respondent was also charged with failure to ensure proper filing and
storage of audit rolls and DBS printouts. The audit rolls
were
supposed to be collected and filed daily by the section manager.
That officer did not assiduously carry out this task, and
the
respondents spot checks, it would appear, failed to identify
this laxity. The appellant asserted it was the role of
the branch
manager to ensure the audit rolls were collected, accounted for and
securely stored not only through checking this was
done, but
requiring the relevant section manager to do so where he/she had not.
Mashingaidze for the appellant asserted in relation
to this
responsibility that it was specifically listed in the Management
Controls Manual as one of the branch managers responsibilities.
The
respondents defence to this charge was that he could not be
expected to do a thorough checking of all the audit rolls filed
and
in any case, only one audit roll out of many that were stored in
about fifteen to twenty bags went missing. It was missing
not
because it had been mis-filed but because it had been deliberately
removed and destroyed by the employees who had perpetrated
the fraud.
So no blame, according to the respondent, should be placed on him.
The
labour court was persuaded by this argument and determined that the
respondent could not be blamed for the loss of one out of
fifteen to
twenty bags of audit rolls, in circumstances where the roll had been
deliberately removed and destroyed by the employees
who had
perpetrated the fraud. The court rejected the appellants
contention that if the respondent had been vigilant, he would
have
discovered the loss of the audit roll, since he was responsible for
everything that went on at his branch.
It
would appear the court a
quo missed the point,
which was that the respondent had not checked properly to see that
all audit rolls had been collected, accounted
for and stored
securely, not that the missing audit rolls had been mis-filed or
destroyed. In particular, the respondent had failed
to perform a
function specifically assigned to him, resulting in loss to the
appellant. As Mashingaidze put it:
Mr Mangwiro
seems to think that it is not his role to look after the safe custody
of all records, in our view the branch manager as
the head of that
particular branch is responsible for everything that goes on at his
branch; everybody else does it for him, in other
words, he is in
charge
.
There
were functions that were to be personally carried out by the
respondent, and others that were to be performed by other people,
who, albeit at different levels of operation, were all ultimately
accountable to the respondent. While he could not thoroughly
check
the work of each and every employee at the branch, the respondent
could nevertheless have ensured that the spot checks
that he
carried out were effective both as a deterrent to errant employees
and as a means to monitor the various operations of the
supermarket.
The evidence before the Court shows that the spot checks that
he carried out failed to detect any sign of the
fraud that was being
perpetrated at his branch.
The
appellants attitude in light of all this, was that the
respondents conduct evinced an inability to fully appreciate his
responsibilities as a manager, to adequately supervise subordinates
or to establish the controls necessary to minimise the loss of
cash
to it. In other words the appellant was saying, (and I am persuaded
to the same view), that the respondent was not possessed
of the
managerial, administrative and leadership skills requisite for the
discharge of a branch managers responsibilities.
The
respondent conceded in relation to all the charges that he faced,
that his conduct amounted to negligence but denied such negligence
warranted his dismissal. The appellant, on the other hand,
submitted that while the conduct in question did amount to
negligence,
that specific charge had not been brought against the
respondent.
There
is substance in this submission. The appellant alleged against the
respondent, conduct inconsistent with the terms of his
employment
contract. It placed before the court evidence to prove the charges in
question. The respondent denied the charges but
admitted his conduct
amounted to another act with which he had not been charged. The
court a quo then
decided that the latter conduct did not warrant the respondents
dismissal. It is my opinion that such a determination was
not
justified on the evidence before the Court, and is therefore
unsustainable.
I
have no doubt that the respondents conduct as analysed above was
inconsistent with the implied and express conditions of his
contract
of employment. It follows that the decision to dismiss him was
properly taken.
The appeal must, accordingly,
succeed.
It is in the
result ordered as follows:
1. The
appeal is allowed with costs.
2. The decision of the Labour
Tribunal is set aside and substituted with the following:
The appeal is dismissed with
costs.
CHIDYAUSIKU
CJ: I agree.
CHEDA JA:
I agree.
Honey
& Blankenberg,
appellant's legal practitioners
Mushonga &
Associates,
respondent's legal practitioners