Dezlyn Makuwira v The Health Services Board

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/40/20
HELD AT HARARE ON 18TH OCTOBER, 2019
CASE NO.
---------




THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/40/20

HELD AT HARARE ON 18TH OCTOBER, 2019       CASE NO. LC/H/152/19

AND 14TH FEBRUARY, 2020

In the matter between:-

DEZLYN MAKUWIRA						      	Appellant

And

THE HEALTH SERVICES BOARD				      	Respondent

Before the Honourable Mhuri, J.

For Appellant		:	In Person

For Respondent		:	Ms. R. B. Madiro (Legal Officer, Civil Division

of the Attorney General’s Office)

MHURI J.

Appellant was in respondent’s employ as a nurse aide based at Harare Central Hospital ward C8.  She was arraigned before a Disciplinary Committee facing an act of misconduct, the charge being theft of state property.  It was alleged that on the 9th of June 2018 in the morning, at knock off time and on her way out, she was found in possession of surgical sundries comprising of :-

1 x box latex gloves

1 x box 21g needles

2 x boxes 18g cannulas

1 x box 19g needles

2 x boxes 16g cannulas

The total value of all the property was $215,00.

After the hearing appellant was found guilty and resultantly dismissed from employment.  Her appeal to the Health Services Board having been unsuccessful, appellant noted this appeal in this Court.

She approached this Court on three main grounds, which are that-

the respondent erred in convicting appellant of an act of misconduct which she did not commit.

Respondent failed to prove its allegations as no evidence was lead during the hearing from anyone from surgical stores, pharmacy and hospital wards.

The penalty imposed was so excessive and induced a sense of shock.

Her prayer was that the appeal succeeds, the determination and penalty be quashed and she be reinstated without loss of benefits.

Appellant substantiated her grounds of appeal by submitting that there was no evidence that she committed the offence as there was nothing missing from pharmacy, surgical stores and wards.  She submitted that when she left the work premises, she was searched and nothing was found on her.

A reading of the record and in particular the evidence of the witnesses who were called to substantiate the respondent’s case, shows that on a balance of probabilities, appellant committed the alleged act of misconduct and therefore was properly found guilty.

It is not in dispute that on the day in question vis the 9th June, 2018, appellant was on duty and knocked off at around 0600 hours.  She was in the company of her colleague Ms. Nyamanjiwa who works in ward C7.  They were later approached by two security officers Marinda and Mutizamhepo as the officers were suspicious about them.  They were apprehended and the property which formed the basis of the charge was found.

The issues which were in dispute were the point of exit, how the appellant and her colleague exited, what transpired when the two were called upon to stop by the officers, where the property was when appellant was apprehended.

The evidence of officers Marinda and Mutizamhepo which was corroborative of each other shows that:-

at around 0600 hours appellant and colleague who were pushing a trolley of dirty linen asked him, Marinda to open the door to the laundry room for them.

Minutes later as he was doing handover takeover duty with Mutizamhepo they saw the two coming out of the laundry room using a back door but now had satchels which they did not have when he opened the door for them.

They asked the appellant and colleague to stop but they refused and increased their speed.

They ran towards the appellant and caught up with them.

They asked the two about the satchels and when they opened the satchels, they found the items and the two started asking for forgiveness and pleading to return the items

The situation became tense which necessitated the calling for assistance.

Mr. Madiki the security in charge came and also a Ms Ngoni who was passing by came to assist.

During the commotion some of the items dropped onto the ground.

Eventually appellant was taken to the Control Office.

Mr. Madiki’s evidence also corroborated Marinda’s and Mutizamhepo’s evidence to the effect that when he was called for assistance he went to where the two were and observed that the two were struggling to arrest appellant and her colleague.  He observed boxes of surgical sundries on the ground.  Ms. Ngoni assisted in picking up the items while he assisted in handcuffing appellant.

Ms Ngoni’s evidence also corroborates the evidence of Marinda, Mutizamhepo and Madiki to the effect that, she saw the two security officers hustling and dragging one another with appellant and her colleague.  In the process some items were dropping from the bags and Mutizamhepo was being overpowered by appellant as she was very violent.  Appellant and colleague refused to comply with her instruction that they pick up their things and go to control room as suggested by the officers.  She assisted in the picking up of the items.

All this evidence, which is corroborative of each other clearly shows that the charge was correctly preferred against appellant.  She had the items which formed the basis of the charge.  I do not find any basis for respondent adducing evidence from the stores, pharmacy and wards to prove that they were items missing as the record shows that appellant was totally denying possessing these items.

A reading of the Disciplinary Committee’s findings which findings were confirmed by the Board, shows that it found the witnesses evidence more credible than that of the appellant.  I equally do not find basis for interfering with the findings.  I therefore confirm them.

It has been stated in a plethora of cases that the imposition of a penalty is the sole discretion of the employer.  Unless it is shown that the discretion was not judiciously exercised, an appellate Court will not interfere with this exercise.

Theft is an offence that involves an element of dishonesty.  Dishonesty always goes to root of the employment contract and where the act of misconduct goes to the root of the employment contract, the employer is entitled to dismiss the employee.

See 	MASHONALAND TURF CLUB

V

GEORGE MUTANGADURA    SC 5/2012

It is not enough, as was submitted in this case, that the penalty is so excessive as to induce a sense of shock.  Dismissal is one of the penalties provided in the Health Services Regulations Statutory Instrument 117 of 2006 and as stated in the case of

CIRCLE CEMENT (PRIVATE) LIMITED

V

CHIPO NYAWASHA SC 60/2003

once an employer has taken a serious view of the offence and has considered it to be a repudiation of the contract of employment, the question of a less severe penalty does not arise, unless it is established that the employer acted unreasonably.

No such unreasonableness has been established in casu.

Resultantly the appeal must fail.  Accordingly it is ordered that the appeal be and is hereby dismissed in its entirety.

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondent’s legal practitioners