Blessing Chinyama v Minister of Higher and Tertiary Education, Innovation, Science and Technology Development & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/262/2023
HARARE, 03 JUNE 2023 & 6 SEPTEMBER 2023
CASE NO LC/H/1191/22
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/262/2023

HARARE, 03 JUNE 2023 & 6 SEPTEMBER 2023 CASE NO LC/H/1191/22

In the matter between:-

BLESSING CHINYAMA	APPELLANT

MINISTER OF HIGHER AND TERTIARY	1st RESPONDENT

EDUCATION, INNOVATION, SCIENCE AND

TECHNOLOGY DEVELOPMENT

THE PUBLIC SERVICE COMMISSION	2nd RESPONDENT

Before the Honourable Kudya J

For the Appellant	In Person

For the Respondent	Mr D. Machingauta

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which found the appellant guilty of misconduct and dismissed him from employment.

The appellant who was in the respondent’s employment as a technician was charged with acts of misconduct in breach of the Public Service Regulation S I 1 of 2000 as amended. He was said to have collected money from William Bain company for jobs which the college had done for Bain and not remit the money to the college. He was also accused of having

caused an intern to write out 2 invoices for the same job thus prejudicing the college of money which the college was legally entitled to. He was alleged to have defied the Principal’s directive for him not to collect money from clients for whom the college would have done jobs. He was thus accused of flouting the production policy which set out how the moneys had to be collected and how it had to be shared. After a full hearing into his matter he was found guilty of the acts of misconduct complained about. He was consequently dismissed from employment. He is unhappy about the loss of his job hence the appeal which is the subject of this judgement.

His appeal grounds are styled as follows:-

“1.	The Disciplinary Authority erred at law in convicting the Appellant of charges

of a criminal nature when such charges were not proved beyond reasonable doubt.

The Disciplinary Authority erred and grossly misdirected itself in finding that Appellant failed to account for the monies received from William Bain Company Holdings (Pvt) Ltd when the Appellant clearly accounted for such monies received.

The Disciplinary Authority erred and grossly misdirected itself in finding that the Appellant defied an instruction given by the principal not to collect money from William Bain Company Holdings (Pvt) Ltd when the existence of such instruction was not proved and also when it was not proved that the actual person who collected the money was tasked by the Appellant to collect the money.

The Disciplinary Authority erred and grossly misdirected itself in finding that the Appellant directed Godfrey Mboko to write two (2) invoices in respect of one transaction and to also collect a date stamp from the bursar’s office when the existence of the alleged directive was not proved.

The Disciplinary Authority erred and grossly misdirected itself in finding that the Appellant fraudulently collected money from William Bain Company Holdings (Pvt) Ltd when it had been proved that the Appellant was entitled to payment in terms of a separate agreement entered into by and between the Appellant and William Bain Company Holdings (Pvt) Ltd.

In the result he prays that the appeal succeeds and that his dismissal be set aside and be substituted by an order reinstating him to his original position without loss of pay or benefits and if that is no longer tenable that he be paid damages in place of reinstatement. In response to the appeal the respondent maintained that

Charges against appellant were proved beyond reasonable doubt. Evidence was heard from the Principal, the bursar and the student attachee. He also admitted to the generation of 2 invoices for the same job. In the result there was sufficient evidence to found his guilt and dismissal.

Appellant did not account for the monies which he received from Bain. His admission that he collected the money and paid himself was contrary to the production policy which mandated the college to do such collections and payment. Evidence from the Bursar demonstrated that appellant collected the money and paid himself to the prejudice of the college.

Appellant was verbally instructed by the principal not to collect the money but he did not heed that call. The Principal testified to the existence of such an instruction.

Appellant admitted that the intern wrote the 2 invoices for the same job at his instigation. The intern Mboko testified that appellant instructed him to issue the 2 invoices for the same job and to stamp them. Mboko had no reason to falsely incriminate the appellant.

Appellant acted fraudulently by collecting the money contrary to the production policy

that existed setting out how the collections and payments on jobs done had to be tackled. In the result the respondent prayed that the appeal be dismissed and that the guilty verdict

and dismissal penalty be made to stand.

It is settled that the duty of the appellate court is not to substitute its discretion for that of the trier of fact. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S). The critical issue which fell for determination was whether it can be said that the disciplinary committee erred grossly to find appellant guilty in the wake of all the evidence which was tendered and the appellants’ responses thereto. Each of the grounds of appeal is discussed below:-

Ground 1

In this ground appellant says his guilt should have been proven beyond reasonable doubt. It is settled that proof in labour cases is on a balance of probabilities. See ZESA v Dera 1998(1) ZLR 500. It is therefore misplaced for the appellant to expect the disciplinary committee to have used the wrong threshold of proof. The ground being without foundation should fail.

Ground 2

Appellant admitted during the proceedings that he indeed received projects money from Bain and paid himself. This was clearly contrary to the production policy which he however claims he did not know about. It is settled that ignorance of the law is not an excuse See Sean v White HC-8-7-17. It was incumbent on appellant to find out how he had to be paid his dues than give himself the payment powers to the detriment of the school and in flout of the standing policy. The ground also being without foundation should fail.

Ground 3

As regards the instruction not to collect money the principal testified clearly to that effect. His evidence got corroboration from that of the bursar that appellant was told not to collect money from clients but went ahead and breached that instruction. The court finds no fault with the finding that such an instruction existed and that it was breached by the appellant. The ground also being without foundation should fail.

Ground 4

On the issue of the 2 invoices and the date stamp Mboko the intern testified clearly that he acted on appellant’s instruction. Under cross examination appellant conceded that but sought to argue that since the intern was not answerable to him he should not be held liable for the instruction which the intern say he gave him. It is the court’s view that the reporting structure was irrelevant on the issue of the invoice and the stamp what was clear was that the invoices were written at the instigation of appellant and they caused prejudice to the college. The committee was therefore correct to hold appellant liable in that regard. The ground also being without foundation should fail.

Ground 5

Appellant cannot argue that he proved entitlement to the money he collected if one notes that the collection and paying self was contrary to instruction and the production policy. Appellant’s action deprived the college of what was due to it hence the offence of fraud was clearly demonstrated from the appellant’s conduct. The court thus does not find fault with the reasoning of the disciplinary committee in this regard. The ground is also without foundation and should fail.

In the ultimate it is clear that the appeal is devoid of merit in its entirety. It should therefore fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed with costs.

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LC/H/2023 
LC/H/1191/22