Anatolia Makufa v Audit Office

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/649/14
HELD AT HARARE 25TH JUNE 2014
CASE NO LC/H/121/14
& 26TH SEPTEMBER 2014
JUDGMENT NO LC/H/649/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/649/14

HELD AT HARARE 25TH JUNE 2014			CASE NO LC/H/121/14

& 26TH SEPTEMBER 2014

In the matter between:-

ANATOLIA MAKUFA				Appellant

And

AUDIT OFFICE					Respondent

Before The Honourable G Mhuri, Judge

For Appellant		Mrs R Peters (Legal Practitioner)

For Respondent		Mr B Magogo (Legal Practitioner)

MHURI, J:

Appellant was arraigned before a Disciplinary Committee on 6 charges in terms of the 1st schedule of the Public Service Regulations S.I. 1/2000 (The Regulations).  Four of the charges were found to have been proven, and as a result the Disciplinary Authority discharged her from the Respondent’s employ.

The 4 charges were under:

– paragraph 23

Engaging in illegal collective job action, including

Incitement of members to engage in such action.

It was alleged that she organised or alternatively

incited members of the Audit Office to engage in an illegal work stoppage on the 10 April 2013 without following proper procedures

paragraph 5

Hindering or obstructing any member of the Public Service

in the discharge of his duty.

It was alleged that she forced members of staff who were in the training room to abandon their training to come and attend the meeting.

paragraph 3

failure to perform any work or duty properly assigned.

It was alleged that she did not perform her duties as assigned by her supervisor on that particular day.

paragraph 6

unbecoming or indecorous behaviour during the course of duty ...

It was alleged that during the course of the meeting she

exhibited unbecoming and indecorous behaviour by taking a lead in singing in the office corridors, banging doors and corridor walls.

The background facts to this whole matter were that on the 9 April 2013 at 16:30 hours the Union to which appellant was a member gave respondent notice that it will hold a meeting with its members at 0830 hours the next day the

10 April 2013.

On the 10 April 2013 the meeting was held at the Audit Office Foyer.  It was respondent’s submission, which submission was not controverted that the meeting unlike previous meetings was chaotic, disconcerting and disorderly.  The venue was not the usual venue and it lasted the whole day.  The behaviour of the employees in particular the President of the Union and the appellant left a lot to be desired as they sang, chanted, banged walls and furniture, sloganeered and denigrated management.

Despite advice to them to return to their workstations, the employees refused to and continued chanting, singing and denigrating management.  Even efforts by the Comptroller and Audit General to engage the Union leaders was to no avail.

For this illegal work stoppage, respondent submitted, appellant was charged as alluded to earlier.

In short appellant’s defence before the Disciplinary Committee against the charges was that she did not attend the said meeting (collective job action).  She was at her work station at a different location from the Audit Office venue where the meeting was held.

From uncontroverted submissions by respondent, I am  persuaded that there was a collective job action engaged in by respondent’s union and its members.  Clearly the collective job action was unlawful, as it was engaged in without complying with requirements stipulated in terms of section 104 of the Labour Act [CAP 28:01].  This is common cause.

For appellant to say there was no collective job action, when on the other hand she avers she did not go to Audit Office but straight to her workstation  (Ministry of Information & Technology) which is located elsewhere is quite surprising.

Appellant’s main argument in this court is that respondent failed to adduce evidence to prove its allegations.  Before the Disciplinary Committee, evidence was led from two persons, Dzinouya and Shiri, who were appellant’s superiors.

It is trite that the standard of proof in civil matters including disciplinary matters such as this one is lower than the standard required in criminal matters.  In civil matters a party is required to prove its case on a balance of probabilities, whereas in criminal matters the burden is proof beyond a reasonable doubt.  If it is found that, it is more probable than not, that a party committed the said act of misconduct, the act will have been proven and a guilty verdict is returned.

It is also accepted that disciplinary proceedings conducted by lay persons is viewed less critically than those proceedings conducted in a court of law.

As SMITH J (as he then was) had this to say

“... the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings according to the rigorous standards of a court of law.”

CHATAIRA v ZESA HH 9/2001

As alluded to, the respondent relied on Ms Shiri’s and the Director Ms Dzinouya’s report and oral submissions.  In her report, Ms Dzinouya related how on the day in question, at about 10.00 am she heard people singing in the corridor, how this group blocked the Training Centre door in which she was in, about to conduct a training session, how the President of the Union, forced the trainees to move out and join others in the singing and dancing and proceed to the 10th Floor of the building.

In her oral submissions, Ms Dzinouya reiterated what was contained in her report and added that,

“I clearly saw Ms Makufa, she was amongst people who were in front singing.  I think she had forgotten that I was in the training centre and when our eyes met, she ran to the other end then I never saw her again, but when they came I saw her actually as one of those who were in front.

I knew her because she works under me, I am not lying, I... but for her it was so obvious, especially her and Makuchete was the one who actually came into the training centre.”

In response to a question from the panel as to whether she clearly saw her, Ms Dzinouya categorically stated

“Of course, when they came in she was in the fore front.

But I think she respected me when she saw that I was in the centre, because when she saw me she ran and hid on the other end of the door.”

Ms Dzinouya was also frank enough to say that

“I do not know if she was the one who was singing...

as for me I did not see her singing because when she came in it was a distance from where I was and by the moment she saw me she ran and hid on the other side of the door.”

Ms Dzinouya was clear in her testimony she was categoric in what she saw, on what she did not witness herself, she stated so and on what she gathered during her investigations she said so.

There is no basis upon which one can find that this witness was biased.  She gave credit to appellant where it was due.  If she was biased, she could have said all the negative things about appellant, such as that she saw appellant signing.

Appellant, despite the damming evidence and guidance from the committee declined to cross examine this witness.  This evidence went uncontroverted.  The committee considered it; found it credible and found appellant to be an unreliable witness.

Ms Shiri, also appellant’s superior gave evidence before the committee.  In response to a question from the committee, on whether she went to where appellant said she was working from on the day and whether she saw appellant, Ms Shiri replied

“Yes I went straight to the Ministry and left around 11.00 am

after she had gone there around 08.00 am.

“No because she was not there, on several times I actually tried to call her and she answered around 10.00 am...

I started to call her around 08.30 am when I had given her an allowance that she might have had transport problems...”

Asked what the response was, Ms Shiri responded thus

“... she said she was in a meeting...”

Whether she had identified the people who were demonstrating, she responded in the negative.  She also gave a positive comment on appellant’s great ability to do her work, also gave a negative comment on her attitude.  This is not  expected of a person who is biased against another.

This witness did not exaggerate her evidence.  She told the events as she had witnessed them.

She was found to be credible by the committee.  Her narration of events was believed.  Conversely appellant was found to be untruthful.  She declined to cross examine this witness on this damning evidence.  This affects her credibility I must say.

From the witnesses evidence which was not controverted at all, I find that appellant was properly found guilty of inciting other members to join the collective job action.

she was seen with the group

she rushed into the training centre and immediately ran out and hid behind a door.  Makuchete then went in and forced the trainees out.

Certainly if it was not for the presence of Ms Dzinouya in the training room, appellant would have done what Mr Makuchete did.

she participated in the collective job action.

there was singing chanting sloganeering and banging of doors.

Whether she was seen or not doing that by the two

witnesses, this can not absolve her.  She associated herself with the group that did so.

this was unbecoming and indecorous behaviour.  Was done during working hours – this is common cause.

By participating in the collective job action.  She did not perform her duties on the day.

As indicated earlier, the standard of proof in civil

matters is lower than that in criminal matters.

On this standard of proof, appellant was properly found guilty.  I find no basis for interfering with the findings of both the Disciplinary Committee and the Disciplinary Authority and the discretion to impose a dismissal penalty.

In the result, the appeal must fail.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

J Mambara & Partners,  appellant’s legal practitioners

Mukuwaza & Associates, respondent’s legal practitioners