Chikomba Rural District Council v Violet Mukombo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/84/2023
HARARE 16 MARCH 2023 27 MARCH
CASE NO LC/88/21
2023
CHIKOMBA RURAL DISTRICT COUNCIL
APPELLANT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE
HARARE 16 MARCH 2023 27 MARCH
2023

CHIKOMBA RURAL DISTRICT COUNCIL

VIOLET MUKOMBO

RESPONDENT

For Appellant    Mr H. Mutasa, Attorney
For Respondent    Mr T. Nyamucherera, Attorney

MUSARIRI, J:

On the 29th March 2021 at Harare the Exemptions Committee (EC) of the NEC for Rural District Councils issued a determination. The EC ordered appellant (employer) to reinstate respondent (employee) without loss of salary and benefits. The employer then appealed to this Court in terms of section 92 D of the Labour Act Chapter 28:01.

The grounds of appeal were two-fold thus,

“1. The tribunal a-quo grossly misdirected itself when it determined the matter on the erroneous basis that the absence of actual material gain on the part of the respondent meant that the elements of the charge of fraud had not been satisfied.

2. The tribunal a-quo erred in determining the appellant’s failure to demonstrate the respondent would benefit from the aforesaid misrepresentation meant that the employer had failed to prove the charge that had been laid against the respondent.”

The EC sat as an appeal tribunal over a decision by the Council Chairperson dated 16th September 2020. The Chairperson ruled thus,
 “After some deliberations committee resolved;

1. The charge of gross incompetency be removed from the offense committed by the accused.

2. That decisions made by the disciplinary hearing be upheld that: Ms Mukombo be dismissed from work for committing fraud with effect from 01 September 2020 for the following reasons;

In her letter of appeal and verbal presentations before the appeals committee, the appellant explicitly showed that;

I. She was under and over mastered by Mr Magwiroto (RTGs$1 907.00 and RTGs$300 respectively) as evidenced by the master receipt and the sub receipts and did not complain either verbally or in writing. He (sic) action or in action showed that she agreed with what transpired that is under mastering. Also, to note was that the under mastering and over mastering happened thrice and once respectively.

II. In the process, she caused a potential prejudice to Council by misrepresenting information, hence she was guilty of fraud as determined by the Disciplinary Hearing Committee”

The EC reversed the decision of the Council Chairperson. The EC’s reasoning was as follows;

“Definition of fraud does not fit in the circumstances of the matter at hand. The elements of the charge in question are as follows, there had to be a mis-representation by word or conduct and there had to be a material gain. Appellant was able to prove to the Committee that she had submitted all the amounts that she collected on the days in question. The revenue clerks who received and mastered her on the day confirmed that indeed all the cash had been submitted. Furthermore, it was established that there were errors regarding the master receipts and the council sub receipts but all the money could be accounted for. The Committee realises that the employer could not explain or illustrate how the employees were to access the money that was in the biller codes.”

The employer set out the definition of “fraud” in the applicable industry code thus;

“Fraud; an employee commits fraud when he or she makes a false statement or claim whether oral or written form and to make any false representation by word or conduct in order to obtain material advantage ……”


The EC misapplied the definition of “fraud”. The employer was not required to prove or show how the employee benefited from the under-mastered amounts of money. All that was required was to prove a false statement made with intent to obtain advantage. The Council Chairperson clearly showed that there was misrepresentation in the master receipts which prejudiced the employer. That the employee did not write the master receipt does not assist her. She was given the master receipt upon submitting her collection. The receipts under-stated her collection. She did not protest either to the revenue clerk or higher authority. This happened at least thrice in a short period. It is more likely than not that she did not demur because she was part of scam to defraud the employer. The fact that it happened thrice in a short period dispels any notion that the discrepancies were errors. An employer need only prove guilt on a balance of probabilities. See ZESA v Dera 1998(1) ZLR 500 (S) at P 503.

“In civil proceedings, proof is furnished upon a preponderance of probabilities and this is the case even when allegations of criminal or immoral conduct are to be proved.”

The balance of probabilities favoured the employer’s case in casu. On that basis the EC erred by reversing the ruling of the Chairperson.

**Wherefore it is ordered that,**

1. **The appeal be and is hereby allowed,**

2. **The determination of the Exemptions Committee of the NEC for Rural District Councils dated 29th March 2021 is set aside; and**

3. **The dismissal from employment of respondent by appellant is upheld.**

**G MUSARIRI**

**J-U-D-G-E**


JUDGMENT NO LC/H/84/2023
CASE NO. LC/H/88/21
--- END OCR FALLBACK ---