Chido Maringanise v Ministry of Education, Sports, Arts and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/141/2014
HARARE, 18 FEBRUARY 2014
&
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/141/2014

HARARE, 18 FEBRUARY 2014	&  		     	     CASE NO. LC/H/151/13

14 MARCH 2014

In the matter between:-

CHIDO MARINGANISE						Appellant

AND

MINISTRY OF EDUCATION, SPORTS,			Respondent

ARTS AND CULTURE

Before Honourable R. Manyangadze, J

For Appellant 		-	In person

For Respondent		-	Ms C. Kasere

(Civil Division, Attorney-General’s Office)

MANYANGADZE J:

This is an appeal against the decision of the Respondent’s Disciplinary Authority, which found Appellant guilty of misconduct and imposed a penalty of demotion, transfer and reprimand.

The facts of the matter are as follows:

The Appellant was the Headmistress at Diggleford Primary School, in Marondera District.  On 29 September 2009, she went through a disciplinary hearing for failure to comply with Treasury Instruction 0430 which requires a public official to lodge public moneys receipted in a safe.  The misconduct charge was in terms of section 44 (2)(a) of the Public Service Regulations, Statutory Instrument 1 of 2000 (PSC Regulations), as read with paragraphs 2, 3 and 24 of the First Schedule thereof.

Particulars of the misconduct were that on 29 September 2008 she receipted an amount of Z$21 200 115 500,00 in school fees, which she placed in a storeroom, instead of a built-in safe.  There was a burglary on the storeroom, as a result of which the money was stolen.  The Provincial Disciplinary Committee found her guilty as charged, and recommended a penalty of restitution of the amount stolen and a strong warning.

On 29 March 2012, the Appellant again went through a disciplinary hearing on 5 counts of misconduct relating to the purchase of a school bus.  The charges were in terms of Section 44 (2)(a), as read with paragraphs 2,3,8, 9 and 24 of the First Schedule of the PSC Regulations.

Particulars of the misconduct were that:

She failed to advise the School Development Association (SDA) that the purchase of a civilian bus had not been sanctioned by the Provincial Education Director (PED) and that the sanctioned project was of the purchase of a Toyota single cab truck.

She allowed the SDA to purchase a bus without the PED’s approval, and without following tender procedures.

She misappropriated US $1 250,00 meant for payment to ZIMRA	.

She failed to advise the SDA not to spend US$250,00 on repairs to the bus after it was involved in an accident whilst being driven by a School Development Committee (SDC) member.

The Provincial Disciplinary Committee found the Appellant guilty of all charges.  It recommended a penalty of a fine of $200,00 coupled with a reprimand.

The reports of the Disciplinary Committee were referred to the Disciplinary Authority, who is the Head of Ministry, in this case the Secretary for Education, Sport, Arts and Culture.  The Disciplinary Authority issued its determination on 12 February 2013.  It confirmed the conviction on all charges except count 3 of the misconduct charges of 29 March 2012.  In that count, it substituted the conviction for misappropriation of funds with one for failing to adhere to policy guidelines on management and use of public funds.

Exercising its powers in terms of Section 50 (1) of the PSC Regulations, the Disciplinary Authority imposed a penalty of:

Demotion from the position of Head to Deputy Head with effect from 1 March 2013.

Promotion freeze for the next 2 years with effect from 1 March 2013.

Transfer from Diggleford Primary School to Moodsville Primary School in Manicaland Province with effect from 1 March 2013.

Reprimand

Aggrieved by this determination, the Appellant lodged an appeal with this Court on 27 February 2013.

In her grounds of appeal, Appellant alleges that:

Respondent constructively dismissed her because Respondent transferred her to a different province fully aware that she is a married woman.

The matter had prescribed, as the Respondent came up with a determination after 3 years.

Respondent erred by charging Appellant over allegations for which the SDA should have been held answerable.

Respondent erred by charging Appellant with charges in respect of which members of the SDA were acquitted in a criminal court.

Respondent erred by imposing a harsh penalty of transfer.

Respondent erred by forcing appellant to restitute money that was stolen, in addition to a harsh penalty.

A close look at the Appellant’s grounds of appeal shows that grounds 1, 5 and 6 relate to the same issue, which is the appropriateness of the penalty imposed.  It is a question of whether Respondent’s Disciplinary Authority erred by imposing a penalty that was too harsh in the circumstances of the case.

Grounds of appeal 2, 3 and 4 are the ones that are dealing with the aspect of conviction. It is therefore convenient to start with this aspect.  It is only logical to do so, for it is after conviction is upheld that the question of sentence is considered.

In ground 2, the Appellant is raising the issue of prescription.  She avers that the matter has prescribed because Respondent came up with a determination after 3 years.  It is not clear on what basis this claim is being made.  It seems it is relating to the first charge that was concluded by the Disciplinary Committee on 29 September 2009.  The facts show that the alleged misconduct was committed in September 2008.  The investigation and hearing process were all done within one year.  What took long is the Disciplinary Authority’s confirmation of the decision of the Disciplinary Committee, which confirmition was issued in February 2013.

The disciplinary procedures of the PSC Regulations, contained in PART III thereof, have no provision on prescription.  The Appellant has not cited the provision she is relying on for the 3 year prescription.

In any case, the chronology of events already outlined shows no breach of the said period.  Applicant was arraigned before the Disciplinary Committee in respect of the first charge, on 29 September 2009, for misconduct committed on 29 September 2008. That means the investigations and hearing were conducted within one year.  There was a delay with the Disciplinary Authority’s determination, issued on 12 February 2012.  The Disciplinary Committee had already made its findings, and the matter had gone to the Disciplinary Authority for confirmation.

As for the other charges, these were determined by the Disciplinary Committee in March 2012, and dealt with by the Disciplinary Authority in February 2013.  That was within a year of the Disciplinary Committee’s recommendations.

Even if the proceedings of September 2009 were to be nullified because of the delay in the determination or confirmation by the Disciplinary Authority, which would really be inconsequential, as they do not relate to the main charges of misconduct.  The major charges of misconduct relate to the disciplinary proceedings of March 2012, in respect of which the prescription issue raised does not apply.  This issue therefore, is of no probative value in the determination of this appeal.

In ground 3, which appears to be the gravamen of the appeal, Appellant avers that the Respondent erred by charging her over issues for which the SDA should be answerable.  By raising this issue, Appellant is effectively dissociating herself from the actions of the SDA, carried out by the School Development Committee (“SDC”).  These actions were the purchase of the bus, the infraction of procurement regulations and procedures, and the consequences emanating there from.

The question, in this regard, is whether the Disciplinary Authority was correct in holding Appellant responsible for the acts of misconduct alleged.  In order to properly and fairly resolve this question, one has to look at the role of the School Head in relation to the SDA and the SDC.

The Respondent drew the Court’s attention to the rules, procedures and policy guidelines that govern the administration of schools and SDAs.  The Respondent tendered copies of Procurement Regulations, Statutory Instrument 171 of 2002, Education (School Development Association) (Government Schools) Regulations, Statutory Instrument 379 of 1998, and Ministry of Education, Sport and Culture Policy Guidelines on Management And Use of Public Funds at Stations and Schools, Director’s Circular No. 23 of 2007.

Statutory Instrument 379 of 1998, under Functions and Duties of School Development Associations, Section 6 (b), provides;

“assist as far as it is able in the operation, extension and development of the school in the best interests of the present and future pupils, in collaboration with the headmaster and subject to the approval of the Secretary:”

The provisions include the “headmaster” as a key figure in the developmental activities of the SDA.  They also provide for the approval of the Secretary.  The headmaster is therefore an important link between the SDA and Government authority.  Even the hiring of non-academic staff is done “in consultation with the headmaster and with the approval of the Secretary”, as seen in section 6 (f).

Section 10 (1) (b) makes the headmaster and the deputy headmaster ex officio members of the executive committee of the SDA.

The School Head therefore plays a critical advisory role in the SDA. The role is enshrined in the statutory provisions on the basis of which the SDA operates.

The circular on the management and use of public funds contains the policy guidelines headmasters follow when administering public funds. Clause 2 of the policy circular states:

“It should be emphasized that the head of school is responsible for the safe custody and proper administration of the funds under his control.  As such, she/he is accountable for all financial transactions involving such funds.”

Responsibility for the administration of public funds is placed on the shoulders of the School Head.

In view of this statutory and policy frame work, the Disciplinary Authority cannot be faulted in its approach to the matter.  In its determination, the Disciplinary Authority found, inter alia, that “the Appellant, as sub-accounting officer, was  supposed to make sure that the SDA members did the right thing by advising them accordingly.”

Instead, Appellant “proceeded to make arrangements for the SDA to purchase the bus.  You even sanctioned the release of the money.  This was despite the fact that the Provincial Education Director had not approved the purchase of the bus.”

In all the charges, the Disciplinary Authority found that Appellant failed to advise the SDA. This resulted in the commitment of school funds to an unapproved project.

At the hearing of the appeal, Appellant seemed to shift focus from the question of conviction to that of the penalty.  The emphasis was on how she was unfairly treated, especially by her demotion and being transferred out of Marondera.

The Court had to remind her there were two aspects to the matter, that of conviction and sentence, and the need to address the court  on both.  She remained focused on sentence, pleading that she had not been given adequate orientation for the responsibilities of School Head.

The following exchange between her and the court is pertinent.

“Q - You have dwelt on the penalty aspect, what about issues relating to conviction.

A  -  it is human to err if one considers that I did not go for orientation,I was bound to make mistakes.

At one time I wrote a letter to the Ministry, informing them of what the parents

had agreed, but the employer did not respond.

Q  - Recall your grounds of appeal.

A  - I still recall some.

Q  - Do you still abide by those grounds of appeal.

A  - Yes

Q  - Any additions or variations.

A  - None”

This prompted the Respondent’s Counsel to remark, quite correctly in my view, as follows:

“The Court should note that Appellant has effectively admitted she was wrong, in that she was not well oriented when she became Headmistress.  We should concentrate on penalty.

The reasons for appeal have been overridden by Appellant’s own submissions or testimony”

Despite Appellant’s apparent admission, the Court nevertheless considered the question of her conviction.  It did so because of Appellant’s ambivalence.  Whilst appearing to be admitting, she also submitted she was abiding by her grounds of appeal.

Having regard to the analysis already made, there is no reasonable basis on which to interfere with the Disciplinary Authority’s findings on conviction in the circumstances.

On the question of penalty, the Disciplinary Authority exercised its discretion in terms of Section 50 (1) of the PSC Regulations. All the aspects of the penalty, namely demotion, promotion, freeze, transfer and reprimand, are listed as possible forms of penalty the Disciplinary Authority is empowered to impose.  The list of options also includes the dreaded penalty of dismissal.  The Disciplinary Authority refrained from imposing this.  It seems to me the authority duly considered the appropriate penalty, and came up with the penalty the Appellant is challenging.

Unless the penalty was actuated by malice or was grossly unreasonable, this court cannot interfere with it. This is a well established approach. In ZB Financial Holdings vs Maureen Manyarara SC 3/2012, it was stated:

“The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by an employer and that it could not interfere with the decision to dismiss without a finding of misdirection on the part of the employer.  The reliance on the fact of the respondent being a first offender to set aside the dismissal in the absence of a finding of misdirection on the part of the employer was improper.”

It has not been shown that the penalty imposed was out of vindictiveness, malice or other ill will. It has also not been shown that it is so grossly unreasonable it warrants interference.  The Respondent was, going by her own admission,  not yet ready to assume the onerous responsibilities of School Head.  These responsibilities include administration of the school’s funds.  They were not, in this case, prudently administered, prompting the Ministry’s Disciplinary Authority to question Appellant’s suitability for the position she was holding.  In the circumstances, the court finds no basis on which to set aside or alter the penalty imposed.

It is accordingly ordered that

The appeal be and is hereby dismissed in its entirety.

The decision of the Disciplinary Authority dated 12 February 2013 be and is hereby upheld.

Each party shall bear its own costs.

…………………………………………

MANYANGADZE J

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