Court name
Supreme Court of Zimbabwe
Case number
SC 119 of 2002
Civil Appeal 30 of 2000

Chatora v Zimbabwe Sun Ltd. (30/2000) (SC 119 of 2002, Civil Appeal 30 of 2000) [2003] ZWSC 119 (19 March 2003);

Law report citations
Media neutral citation
[2003] ZWSC 119

























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