DISTRIBUTABLE (111)

Judgment No. SC 119/02

Civil Appeal No. 30/2000

PHANUEL CHATORA v ZIMBABWE SUN LIMITED

SUPREME COURT OF ZIMBABWE

McNALLY  JA, MUCHECHETERE  JA & MALABA JA

HARARE, OCTOBER 16, 2001 & MARCH 20, 2003

J Dondo, for the appellant

A K Maguchu, for the respondent

MALABA JA: This is an appeal from a judgment of the Labour Relations Tribunal (“the Tribunal”) dated 16 July 1999 dismissing without an order of costs an appeal from a decision of the personnel director of the respondent upholding a disciplinary committee’s decision dismissing the appellant from employment for committing a wrongful act which caused the respondent financial loss.

The appellant, to whom I shall refer as “Mr Chatora”, was employed by the respondent, to whom I shall refer as “ZimSun”, as an internal auditor. On 10 January 1995 Mr Chatora was assigned by Mr A Zindoga, the audit manager, to attend to the computerisation of the Bulawayo Sun Hotel. He was booked into the hotel from 10 to 31 January 1995. Mr Chatora stayed in the hotel again on official duty from 4 to 27 February 1995. ZimSun paid for Mr Chatora’s accommodation and meals at the hotel. It also bore 60% of the cost of his beverages.

Invoices issued by the Bulawayo Sun Hotel showed that Mr Chatora had meals (breakfast, lunch and dinner) with one other person on each of the days he was booked into the hotel. On one occasion he had a meal with three people. Mr Chatora signed the invoices relating to the meals eaten by his friends or relatives and passed the cost on to ZimSun. The receipts from the bars show that Mr Chatora had beverages which cost $811.76. He was supposed to pay $544.23 for beverages at cost but only paid $176.39, thereby passing the balance of $367.84 on to ZimSun.

On 8 July 1994, Mr Chatora, together with other internal auditors, had been made aware of the fact that it was a breach of ZimSun policy to charge meals consumed by friends or relatives to the company account without the prior approval of the audit manager. The internal memorandum addressed to all internal auditors by Mr Zindoga, who was then the senior internal auditor, reads:

“It has come to my attention that some of you are getting drinks on the Zimbabwe Sun Hotel Account when you are booked at Monomatapa Hotel. Please be warned that I am not going to approve drinks on the Zimbabwe Sun Hotel Account without my prior approval. You all know the policy and do not be caught wanting.

I have also noticed that some of you were having meals with friends on such occasions. This must stop.”

On 16 August 1994 Mr Chatora had charged a meal consumed by his wife at Monomatapa Hotel to the Zimsun account in breach of the memorandum of 8 July 1994. On 21 September 1994 Mr Zindoga, who was now the audit manager, addressed a letter to Mr Chatora in these terms:

“On 8 July 1994 I wrote a memorandum to all internal auditors noting that there were some of you who were having drinks at Monomatapa Hotel and also signing for meals for friends in defiance of company policy. I am deeply concerned to note that you still found it fit to ignore my directive when, on 16 August 1994, you had a meal with, presumably, your wife who signed the dockets.

Accordingly, I wish to advise you that, in terms of the Zimbabwe Sun Hotel’s Code of Conduct, I hereby issue you with a final written warning in terms of item (e) Disciplinary Offences. I have also asked Payroll to deduct the sum of $82.00 from your salary, being for the bill of your partner.”

On 18 October 1994 Mr Chatora wrote a letter to the manpower resources manager complaining that the final written warning was given to him without him having been afforded an opportunity to be heard. He did not deny that he had charged the cost of the meal consumed by his wife to the Zimsun account. He admitted knowledge of the company policy prohibiting his conduct as stated in the memorandum of 8 July 1994. He argued, however, that the memorandum should not have been sent to internal auditors only but to the hotels so that they knew the conditions under which internal auditors’ friends or relatives could have meals on the Zimsun account.

It is clear therefore that when Mr Chatora had friends or relatives have meals on the Zimsun account on the numerous occasions during the period he was booked at the Bulawayo Sun Hotel he was aware of the company policy against such conduct.

Mr Chatora’s conduct led to his suspension from office on 17 March 1995 and gave rise to charges of misconduct being preferred against him in terms of para (M) of the ZimSun Code of Conduct. The allegation made against Mr Chatora was that he had committed a “wrongful act” which caused ZimSun financial loss in contravention of para (M) of the Code of Conduct, in that he had signed for meals consumed by his friends or relatives on the Zimsun account, causing the company financial loss of $2 093.00. He was also accused of having wrongfully passed on to ZimSun his beverages bill.

On 23 March 1995 Mr Chatora appeared before a disciplinary hearing committee. Present at the hearing were the manpower resources manager, who was the chairman, and the audit manager, who was the complainant. The facts surrounding the acts of misconduct alleged against him and the invoices proving them were brought to Mr Chatora’s attention. He admitted the commission of the conduct alleged against him. He also admitted that his conduct caused ZimSun the financial loss stated. Mr Chatora sought to argue that he did not know that the conduct was wrongful. Whilst admitting that he knew of the company policy, as stated in the letter of 8 July 1994, Mr Chatora said he thought it applied to Monomatapa Hotel only.

The disciplinary committee took the view that the evidence which proved the commission of the acts of misconduct by Mr Chatora was overwhelming. He was told at the end of the hearing that he had committed a wrongful act leading to financial loss by ZimSun. As the offence Mr Chatora was charged with was a dismissal offence, he was dismissed from employment there and then.

On 28 March 2001 Mr Chatora appealed in terms of the Code of Conduct to the personnel director against his dismissal. A re-hearing of the case was conducted and present were the personnel director, the financial director, the manpower resources manager and the audit manager. The appeals committee dealt first with the procedural grounds of appeal.

Mr Chatora had alleged as the first ground of appeal that the disciplinary committee which heard his case on 23 March 1995 was not properly constituted as it was made up of two people only. He, however, later agreed with the appeals committee that the disciplinary committee was properly constituted, as there was no provision in the Code of Conduct against two people constituting the disciplinary committee.

The second procedural ground of appeal was that the disciplinary committee should have ordered him out of the room at the end of the hearing to deliberate on the verdict. The fact that they decided there and then that he had committed the offence charged showed that they had made up their minds on the issue of his guilt prior to hearing evidence. It was pointed out to Mr Chatora that the procedure he suggested ought to have been followed depended upon the cogency of the evidence adduced in the case. It was made clear to him that as the evidence of his guilt was clear and convincing there was no need to send him out of the room to allow for deliberation to take place. He agreed with that observation.

The third procedural ground of appeal was that Mr Zindoga, as the person who had investigated the allegations of misconduct against Mr Chatora and compiled the report on the basis of which the charge was preferred against Mr Chatora, should not have sat in the hearing of the case as he was biased against him. Mr Chatora did not deny committing the acts of misconduct charged against him. He admitted that he had breached company policy. At first, he had said he paid all his bills on 23 March 1995. He later said he had not paid the bills at the time of the hearing of the appeal.

It became clear from the evidence adduced by Mr Matambwa, who was called by Mr Chatora, that all internal auditors were aware that company policy was that one had to pay for meals consumed by one’s friends and relatives. He also said an official was expected to pay 40% of his beverages bill at cost.

On 5 April 1995 the personnel director upheld the decision of the disciplinary committee dismissing Mr Chatora from employment.

In the appeal to the Tribunal Mr Chatora could not challenge the correctness of the factual finding that he had committed the acts on which the misconduct charges were based. He also could not deny that his conduct caused ZimSun financial loss amounting to $2 093.07. It also became clear that Mr Chatora had been aware of the policy against passing the cost of meals eaten by friends or relatives on to ZimSun.

Notwithstanding the concession by Mr Chatora before the appeals committee that he had no basis for attacking the proceedings of the disciplinary committee on the three procedural grounds on which the appeal to that body had been noted, Mr Dondo raised the same grounds of appeal before the Tribunal. The learned Deputy Chairman correctly held that Mr Chatora was bound by the concessions he had made.

Mr Dondo sought to argue Mr Chatora’s case before this Court on the basis that the Tribunal misdirected itself in rejecting the arguments advanced on his behalf on each of the three procedural questions raised before the appeals committee.

Not only was the argument contrary to the concessions made by Mr Chatora before the appeals committee, the points made also ignored the fact that a factual finding was made by the Tribunal that Mr Chatora admitted knowledge of the policy prohibiting him from giving friends or relatives food on company money. As Mr Chatora was found to have made the admission of facts on which the acts of misconduct charged against him were based, it was of no consequence whether Mr Zindoga acted as a judge and prosecutor in the case. The principle applies where there is a dispute between the parties. In any case, a factual finding by the Tribunal is final and unappealable.

Mr Dondo’s argument that the Tribunal also misdirected itself in finding that the disciplinary committee was entitled to dismiss Mr Chatora from employment once it found that he had committed the offences charged is without merit. The Code of Conduct provided that the offences in question were punishable by a dismissal. The disciplinary committee was entitled under the Code of Conduct to dismiss Mr Chatora on finding him guilty of the offences charged. Dismissal was a matter within their discretion. There was no evidence of the disciplinary committee having exercised their discretion unreasonably.

The appeal is without merit. It is dismissed with costs.

McNALLY  JA: I agree.

MUCHECHETERE  JA: I agree.

Chinamasa, Mudimu & Chinogwenya, appellant's legal practitioners

Dube, Manikai & Hwacha, respondent's legal practitioners