DISTRIBUTABLE
(52)
Judgment
No. SC 56/04
Civil Appeal No. 284/03
VINCENT
MATIENGA CHIWARIDZO v
ZIMBABWE
TRAFFIC SAFETY BOARD
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, ZIYAMBI JA & GWAUNZA JA
HARARE,
JULY 13 & SEPTEMBER 9, 2004
A
M Gijima, for the
appellant
J
Muchada, for the
respondent
ZIYAMBI JA: The appellant
appealed against a decision of the Labour Court (formerly the Labour
Relations Tribunal) confirming his
dismissal from the employ of the
respondent. The grounds of appeal raised are that the court a
quo erred in finding
that the respondents cause of action had not prescribed in terms
of s 94 of the Labour Relations Act [Chapter
28:01] (the Act);
and, further, that the Labour Court erred in not taking into account
that the respondent had failed to prove the
charges laid against the
appellant.
The appellant was employed as the
finance manager of the respondent. On 10 December 1999 he
received the following letter from
the Board of the respondent:
RESOLUTION OF THE 80TH
BOARD MEETING HELD ON THE 9TH
DECEMBER 1999
I refer to a charge of misconduct
communicated to you by letter dated 7 October 1999, and your
subsequent response dated 22 October
1999. The charges that
were laid before you are as follows:
Please be advised that at its
sitting on 9 December 1999 the 80th Board
Meeting passed a resolution to suspend you with immediate effect
while further investigation(s) are made on this matter.
However,
you will be entitled to your full salary and benefits until a final
determination has been made by the Board.
On 29 February 2000 the
respondent, through its legal practitioners, notified the appellant
by letter that he was, as from that
date, being suspended without pay
for the reasons set out in the letter, pending an application to the
Ministry of Labour (the
Ministry) for authority to terminate
the appellants employment with the respondent. The labour
relations officer granted
the necessary authority on 7 August
2000.
Appeals
to the senior labour relations officer and to the Labour Court having
been dismissed, the appellant now appeals to this Court
on the
grounds stated above.
The
appellant contended, firstly, that the application to the labour
relations officer was brought outside the time limits prescribed
by
s 94(3)(b) of the Act.
Section 94 of the Act provides as
follows:
94 Prescription
of disputes
(1) Subject to subsection (2),
after the 1st January,
1993, no labour relations officer shall entertain any dispute or
unfair labour practice which
(a) arose before 1st January,
1993, unless it is referred to a labour relations officer within one
hundred and eighty days from 1st January,
1993, and any debts arising therefrom have not been prescribed in
terms of the Prescription Act [Chapter 8:11];
(b) arises after 1st January,
1993, unless it is referred to a labour relations officer within one
hundred and eighty days from the date when such
dispute or unfair
labour practice first arose.
(2) Subsection (1)
shall not apply to an unfair labour practice which is continuing at
the time it is referred to or comes
to the attention of a labour
relations officer.
(3) For the purpose of
subsection (1), a dispute or unfair labour practice shall be
deemed to have first arisen on the date
when
(a) the acts or omissions forming
the subject of the dispute or unfair labour practice first occurred;
or
(b) the party wishing to refer
the dispute or unfair labour practice to the labour relations officer
first became aware of the acts
or omissions referred to in
paragraph (a), if such party cannot reasonably be expected to
have known of such acts or omissions
at the date when they first
occurred.
It was contended on behalf of the
appellant that the facts forming the subject of the dispute occurred
as early as 18 June 1999
and that accordingly the date of
reference to the Ministry for authority to dismiss him was well
beyond the one hundred and eighty
days prescribed by the Act.
The respondent, while
acknowledging that the acts may have occurred more than one hundred
and eighty days before the application was
made, contended that it
only became aware of the facts on 7 October 1999 when it first
wrote to the appellant and that was well
within the period of one
hundred and eighty days.
It is common cause that the facts
forming the subject of the dispute are contained in an audit report
compiled by the Ministry of
Transport and dated 18 June 1999.
However, there is nothing on the record to show that the respondent
received the audit report
on 18 June 1999. The report shows
that it was addressed to the Secretary for Transport and Energy and
copied to various people,
none of whom represented the respondent.
In the absence of evidence as to when the respondent became aware of
the report, it is
not unreasonable to draw the inference that the
respondent became aware of the contents of the audit report on or
about 7 October
1999. Thus, counting from that date, the
Labour Court found that the date of reference to the Ministry, being
29 February
2000, was well within the time limits prescribed by
s 94. I find no misdirection in that approach by the court a
quo.
For this reason, the contention
on behalf of the appellant that:
the calculation of the dates were
(was?) so clearly more than 180 days that the decision that no such
length of time had passed was
so outrageous in its defiance of logic
that the appellant is entitled to appeal against it as a point of
law,
based
as it was on the premise that the audit report was seen by the
respondent on 18 July 1999, cannot be sustained. The appeal
must therefore fail on this ground.
The
appellant argued in the alternative that the Labour Court erred in
failing to find that the charges against the appellant were
not
proved. The charges against the appellant were as follows:
(a) any
act, conduct or omission inconsistent with the fulfilment
of the express or implied conditions of his contract;
(b) habitual and substantial
neglect of his duties;
(c) gross incompetence of
inefficiency in the performance of his work.
The
appellant was employed as the finance manager of the respondent.
One of his duties was to supervise the staff below him. It
is
common cause that one of the appellants subordinates,
Kelvin Chamboko (Chamboko), was not supervised by the
appellant.
As a result of such lack of supervision, Chamboko was
able to perpetrate frauds against the respondent totalling
$278 000.00.
It was alleged that the appellant:
failed
to enforce controls through updating of cash books, failed to check
journal vouchers completed by Chamboko, failed to put in
place
controls for the safekeeping of cheque books and failed to carry out
frequent reconciliation statements and good maintenance
of the
voucher register.
The
appellant admitted his failure to supervise Chamboko and generally
his failure to perform his duties as set out above, but claimed
that
this was due to pressure of work occasioned by the absence of the
deputy director as well as the breakdown of the computers,
rendering
him unable to satisfactorily perform his duties. The evidence of
the auditor was that, because of the lack of supervision
by the
appellant, Chamboko was able to write cheques, forge signatures,
destroy duplicate cheques and did not keep a record of the
cheques in
the cash book. The cash books were not timeously updated.
Generally the finance section of the respondent was in a
shambles and
the appellant was responsible for that state of affairs. There was
evidence that the appellants failure to supervise
or to perform
his duties continued well after the deputy director had returned to
work and assumed his duties.
Both
the labour relations officer and the senior labour relations officer
found the appellant guilty of the charges laid against him.
The
senior labour relations officer found that the appellants failure
to supervise his subordinates had resulted in the frauds
perpetrated
on the appellant. He found that although there was much work it was
the appellants duty to put into place measures
which ensured that
his subordinates were properly supervised. The Labour Court upheld
his findings.
I
find no misdirection in the judgment of the Labour Court and, having
regard to the evidence contained in the record, I am of the
view that
the charges against the appellant were amply proved.
In
the result, the appeal is devoid of merit and it is dismissed with
costs.
CHIDYAUSIKU
CJ: I agree.
GWAUNZA
JA: I agree.
Gill,
Godlonton & Gerrans,
appellant's legal practitioners
Dube,
Manakai & Hwacha,
respondent's legal practitioners