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 respondent’s 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 80^TH BOARD MEETING HELD ON THE 9^TH 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:

• As Finance Manager of Zimbabwe Traffic Safety Board, you failed to carry out your duties. This included failure to effectively supervise the clerk Kelvin Chamboko.

• You failed to enforce controls through updating of cash books.

• You failed to check journal vouchers compiled by Kelvin Chamboko.

• You failed to put (in place) controls for (the safekeeping) of cheque books.

• You failed to carry out frequent reconciliation and good maintenance of the voucher register within the period in question.

• As a result of the above failure the Board was embezzled of funds in excess of $278 000.

Please be advised that at its sitting on 9 December 1999 the 80^th 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 appellant’s 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 1^st January, 1993, no labour relations officer shall entertain any dispute or unfair labour practice which –

(a) arose before 1^st January, 1993, unless it is referred to a labour relations officer within one hundred and eighty days from 1^st January, 1993, and any debts arising therefrom have not been prescribed in terms of the Prescription Act [Chapter 8:11];

(b) arises after 1^st 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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