Dennis Ndawana v Health Services Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 MAY 2025
JUDGMENT NO. LC/H/305/25
CASE NO. R - LC/H/907/24
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 MAY 2025

JUDGMENT NO. LC/H/305/25 CASE NO .	R - LC/H/907/24

In the matter between:-

DENNIS NDAWANA	APPELLANT

And

HEALTH SERVICES COMMISSION	RESPONDENT

Before the Honourable Kudya J

For the Appellant	Bethel Negato (Legal Practitioner) For the Respondent	D. Machingauta (Legal Practitioner)

KUDYA, J:

On 20 May 2025, this court dismissed with costs on the ordinary scale, an appeal which had been launched by the appellant employee in the instant matter. On 14 August 2025 by letter to the Registrar of the Labour Court the appellant requested for the full reasons for the order of 20 May 2025. These are the reasons:-

The appeal grounds can be summarised as follows:-

Appellant was wrongly charged in that the conduct complained was not committed by him.

The pharmacy technician one Mandisodza who resigned is the one answerable for the theft of the drugs. He had made prior arrangements with the sister in charge for the collection of the drugs. Use of appellant’s motor vehicle was not to commit misconduct but to assist with transport as he had done with senior officials on many occasions when the need arose.

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The circumstantial evidence relied on to found appellants’ guilt was insufficient. There was no evidence that the pharmacy technician did not receive the drugs, if he had not he would have reported appellant to the authorities.

Health Services Board erred by not distinguishing role played by appellant and that by the pharmacy technician. The pharmacy technician is the theft culprit but he resigned before he could be disciplined. He failed to account for the drugs and appellant was exonerated by the Melfort Clinic Sister in charge.

Health Service Board erred to convict appellant with theft yet the investigation report proved that he did not steal.

Health Services Board erred by concurring with the disciplinary authority that appellant stole the drugs without corroborative evidence of the pharmacy technician.

Health Services Board erred to dismiss appellant without considering appellant record of clean service and mitigation so violated Sec 12 (4) Labour Act.

In the result, appellant prayed that the appeal be allowed and that the guilty verdict and dismissal penalty be set aside and substituted with an order reinstating him with full pay and benefits or that he be paid damages in place of reinstatement if such is no longer feasible.

In response to the appeal, the respondent employer maintained that: -

Appellant was an accomplice to theft. Penalty should not be reversed because appellant acted knowing fully well that he was aiding theft of drugs.

Appellant used his personal motor vehicle, outside working hours and delivered drugs to a non health facility, so, he aided the theft crime.

All blame cannot be shifted to pharmacy technician alone because appellant participated in the commission of an offence which led to the loss of the drugs at the hospital.

Melfort Clinic Sister in charge confession did no exonerate appellant, but, only highlighted the sister in charge’s role in the commission of the offence without excusing the appellant.

Appellant’s record of service and mitigation was considered but the disciplinary authority used its discretion to penalise the appellant taking into account the gravity of the offence.

In the result, the respondent employer prayed that the appeal be dismissed with costs.

JUDGMENT NO. LC/H/305/25 CASE NO.	LC/H/907/24

A reading of all the appeal grounds speaks to 2 simple issues, that is, firstly that the guilty verdict was birthed by dearth of evidence and secondly, that the penalty which was meted out was excessive in the circumstances. It is these two issues which are addressed principally by this judgment.

It is settled that the trier of facts discretion should not be lightly interfered with by an appellate tribunal. See Hama v NRZ 1996(1)ZLR664.The critical issue in the case at hand is, whether it can be said that the conclusions arrived at in the matter are grossly unreasonable.

GUILTY VERDICT

Under this heading appellant raises about six issues which this ground will address. In the first instance, it is appellant’s contention that he was wrongly charged. He says that is so, because, he is not the one who committed the offence.

It is settled that, the prerogative to decide on a charge lies with the employer. See Geddes v Tawonezvi SC32/04. The fact that appellant believes he should not have been charged as happened in this case is therefore of no consequence. His view that, charges should only have been preferred against the pharmacy technician does not excuse his conduct. This rung being without merit should fail.

The second rung is intricately linked with the first one. It is the appellant’s contention that, he only used his motor vehicle to deliver the drugs at the instruction of the pharmacy technician. He hastens to mention that, it was not unusual for him to be asked by senior officials, the pharmacy technician included, to use his motor vehicle on business related trips.

If the court is with the appellant on the practice of using his personal motor vehicle for business trips, the next question to be asked is, the totality of the facts of the case. This was not just a senior member of staff business instruction, but, one done outside working hours and for delivery of drugs at a non medical facility. A reasonable driver placed in the appellant’s position should have seen that all was amiss about the trip. He thus cannot want to wash his hands off the pharmacy technician who evaded justice by resigning before allegations could be preferred against him. There was therefore nothing irregular by the

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employer concluding that appellant played an active role in the drugs theft so his guilty verdict was well placed in this respect.

On the 3rd plane, the appellant says that the circumstantial evidence was not sufficient to birth his guilt. Circumstantial evidence can give rise to guilty verdict where inferences can be drawn from it that the offending party offended as alleged. In the case at hand, it is clear that the cumulative effect of the facts of the case is such that the conclusion arrived at by the employer cannot be faulted.

It be noted also that the test in labour cases is the balance of probability test. See ZESA v Dera. SC79//98. It was not outrageous for the employer to conclude that appellant aided the theft by use of his motor vehicle, outside working hours and taking a delivery of drugs to a non medical facility. The conclusions arrived at on the basis of such evidence cannot be faulted.

In the fourth rung, appellant reiterates that the pharmacy technician is to be exclusively blamed for the drugs theft. That cannot be so as there is a clear nexus between appellant’s conduct and that of the pharmacy technician. The guilty verdict can therefore not be interfered with under this rung

On the 5th plane, appellant says the investigation report exonerated him. Such a conclusion is not in sync with the evidence led in his matter. His role in the theft was clearly spelt out and the decision to find him guilty can thus not be dislodged.

On the final plane, appellant harped on the role of the Melfort sister in charge. That the sister in charge had a role to play in the offence did not excuse appellant’s conduct. There was therefore nothing remiss in the guilty verdict on this plane.

In the ultimate, all the arguments for the upsetting of the guilty verdict fell flat on their face as discussed above. There was therefore no basis for this court to interfere with the guilty verdict as found by the employer.

PENALTY

It is settled that penalty is at the discretion of the employer. See Nyawasha v Circle Cement SC60/03. It is equally settled that, even in seemingly trifling circumstances dismissal can be concluded to be appropriate. See Chimoto vs Innscor SC 6/12. In the case at stake, it is clear that, what was in issue were drugs meant to save people’s lives. Aiding the theft of such cannot

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be adjudged to be trivial. Appellant’s indeed went to the root of the contract of employment so dismissal was proper in the circumstances.

In the ultimate, it is clear that all appeal grounds were without merit hence the dismissal of the appeal as borne out by the order of 20 May 2025 referred to at the beginning of this judgement.

Tapera Mazana and Partners, Applicant’s Legal Practitioners

Civil Division, Respondent’s Legal Practitioners