Edgar Jonasi v Minister of Primary and Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/778/2014
HARARE, 28 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/778/2014

HARARE, 28 OCTOBER 2014		     		   CASE NO. LC/H/257/12

AND 21 NOVEMBER 2014

In the matter between:-

EDGAR JONASI								Appellant

And

MINISTER OF PRIMARY AND SECONDARY			 Respondent

EDUCATION

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. J. Mutonono  (Legal Practitioner)

For Respondents		Ms T.S. Musangwa (Civil Division)

CHIDZIVA, J:

This is an Appeal against the decision of the Minister of Education to dismiss Appellant from employment.  The order in a letter dated 14 March 2012 stated as follows:

“In view of the above and acting in terms of Section 46 (3) (a) and (b) as read with Section 50 (1) paragraphs (a) and (k) of SI 1/2000 as amended and cited herein I hereby

Discharge you from the service with effect from after duty on Friday 23 March 2012.

Direct that a surcharge to the tune of US$ 4 280,00 be raised against you, …”

The brief background of this matter is that Appellant who was employed as the Headmaster of Chinamano Primary School was charged and found guilty of misconduct in terms of Section 46 (1) (b) of the Public Service Regulations 2000 as amended.  He was charged with;

Failure to hold Annual General Meetings with the School Development Committee.

Collecting and receipting US$1,00 per child per week without the approval of the Provincial Education Director and using the money to pay incentives to teachers.

Failure to receipt money for report books sales, rentals free churches and case from civvies.

Failure to supervise the maintenance of the cashbook.

Approving the payment of special responsibility allowances to be paid to School Development Committee members to the tune of US $11 790.

Paying allowances totaling US $1 440 for holiday allowances to himself and other school officers to “incentivize the officers.”

Approving between 1 June 2010 and 4 October 2010, overstated amounts of Travelling and Subsistence to various members, including himself, amounting US $1 224.

Erecting two houses at the school for teachers without approval of Epworth Local Board and the Ministry of Education, Sport, Arts and Culture at a cost of US $7 518 which was not budgeted for.

Leasing classrooms without the approval of the Provincial Education Director.

Appellant was then on these charges found guilty and discharged from service with effect from 23 March 2012.

The Appellant has approached this court on appeal citing the following grounds;

The disciplinary authority grossly erred in failing to accept the fact that because of political tensions and interference in the area, the meetings were poorly attended.

The disciplinary authority erred in concluding that the collection of $1-00 per child per week was at the behest of Appellant yet it was fire fighting strategy which was employed in almost all schools to retain teachers and was stopped immediately upon the advise of the District Education Officer.

The disciplinary authority erred in failing to accept the records which were separately kept for the sale of report books although they were not the school receipt books.

The disciplinary authority further grossly erred in failing to appreciate as mitigatory the place within which appellant was operating, the period within which the offences were allegedly committed.  If the above had been taken into account, a sentence of dismissal would have clearly been seen to be too harsh in the circumstances.

The Appellant therefore prayed for the setting aside of the penalty and that the recommendation of the disciplinary committee be implemented.

The Respondent in response submitted that the Disciplinary Authority did not err because

the Appellant should have produced minutes of the meetings that were held with parents annually.

the Appellant needed authority from the Ministry as provided for by the Education Act (2006) to collect the $1,00 per child per week.

the Appellant failed to produce evidence to support sale of the report books.

Appellant was suppose to follow the Public Service Regulations.

It is on these grounds that the Respondent applied for the dismissal of the Appeal.

It is common cause that Appellant is not denying committing the acts of misconduct.

What is to be decided is whether the penalty was unduly harsh in the circumstances.

The Appellant was found guilty of Negligent and incompetent performance of duty that he failed to hold Annual General Meetings between 2006 to 2010.  Gwisai in his book Labour and Employer and Law in Zimbabwe, Relations of work under Neo-Colonial Capitalism, Volume 1 at page 107 defined negligence as follows,

“Negligence refers to a situation whereby the worker is aware of his/her duties and is capable of performing them but for not good reason does not or does them in an incorrect way because of lack of application or concentration.”

The Appellant during the hearing failed to produce evidence of minutes of Annual General Meetings held over a period of (4) four years.  This clearly shows that Appellant was not applying himself to his job as required by the Public Service Regulations.

The Appellant also failed to obey lawful instructions by collecting $1,00 per child per week, and built two houses at the school, and leased classrooms without the approval of the Provincial Education Director.  His failure to supervise the cash book from 2007 – 2011 clearly showed a sign of disobedience, negligence and dishonesty.

Appellant also paid himself undue T and S Allowances and Holiday allowances without the approval of the Provincial Education Director.

The Appellant was employed by the Public Service Commission and the Ministry of Education.  He was suppose to follow the regulations provided for in running the school.  Instead he took the school to be his personal business where he did not have to report to anyone about his activities.  Dishonesty and negligence can only be the reasons he conducted himself in the way he did.  Given the experience he had he has no excuse for conducting himself in the manner he did.

Section 7 (1) of SI 15 OF 2006 states that;

“In general disciplinary action should, in the first instance be educational and then corrective punitive action should only be taken when the said earlier steps have proved ineffective.”

However in this case considering his experience and level of education his conduct cannot be condoned.  The Appellant abused the trust that was imposed on him by the employer.  His actions caused great financial prejudice to the employer.

In the case of Mvere v Tanganda Tea Company SC 130/04 it was held that;

“Conduct of a sufficiently serious and grave nature destructive of the trust and confidence fundamental to the continuance of the relationship under the contract of employment warrants dismissal”

The Appellant’s conduct in the circumstances warrants dismissal.

In view of the foregoing therefore this court finds that the Appeal lacks merit.

Accordingly IT IS HEREBY ORDERED THAT

The Appeal be and is hereby dismissed with costs.

CHADYIWA & ASSOCIATES, Appellant’s legal practitioners

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