Edith Chinhiwu v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
26 JUNE 2024
JUDGMENT NO. LC/H/291/24
CASE NO. LC/H/427/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 26 JUNE 2024

AND 4 JULY 2024

JUDGMENT NO. LC/H/291/24 CASE NO. LC/H/427/24

IN THE MATTER BETWEEN:-

EDITH CHINHIWU	APPELLANT

AND

HEALTH SERVICE COMMISSION	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. T. Matonhodze

For Respondent	Mr. C. Chitekuteku

MURASI J.,

This is an appeal against the decision of the Respondent finding the Appellant guilty of misconduct culminating in her dismissal from employment.

The brief facts are that Appellant was employed as Principal Tutor at Chitungwiza Central Hospital. Student nurses raised concerns about certain happenings at the training institution. This was made anonymously. Investigations were carried out and Appellant was charged with misconduct. However, none of the students who had made the anonymous reports were willing to come and testify resulting in the Disciplinary Committee tasked with hearing the matter making a recommendation to the Disciplinary Authority that it could not find any evidence of misconduct against the Appellant. Some of the student nurses later informed the Disciplinary Authority that they were willing to give evidence and submitted written statements in this respect.

The Disciplinary Authority, having received the written reports, referred the matter to the Disciplinary Committee for further hearing. The matter was heard with these students giving evidence. The Disciplinary Committee found the Appellant guilty. An appeal was lodged with the Appeals Officer. The Appeals Officer upheld the decision of the Disciplinary Committee. Appellant is dissatisfied with this outcome and has approached this Court for relief.

The Appellant’s grounds of appeal are formulated as follows:

The Respondent erred at law in failing to find that the further hearing against the Appellant became a legal nullity once the Disciplinary Authority unilaterally introduced new evidence in violation of section 46 (1) (a) of the Health Service Regulations, SI 117 of 2006.

The Respondent grossly erred and misdirected itself in failing to find that there was no link between the charges and the verdict as Appellant was improperly found guilty of alleged vending, forcing students to buy her wares and violating the conditions of her suspension when she was never charged of these.

The Respondent erred and misdirected itself in failing to find that the Appellant could not be convicted of the charges on a balance of probabilities based on the evidence of the three (3) witnesses, which evidence was unreliable as it was speculative, inconclusive, contradictory and based on hearsay.

The Respondent erred in failing to find that the penalty of dismissal was unduly harsh considering that the Disciplinary Committee had weighed the aggravating and mitigating factors and recommended a less severe penalty which penalty was disregarded without reasonable cause by the Disciplinary Authority.

Appellant’s Submissions

At the commencement of the hearing, Mr. Matonhodze attempted to raise the preliminary issue that there was no resolution attached to the deponent’s opposing affidavit. After a brief exchange of views, he later abandoned the preliminary point.

As far as the first ground of appeal was concerned, Mr. Matonhodze submitted that after the initial hearing, the Disciplinary Authority could not have proceeded to refer the matter to the Disciplinary Committee without further investigation as provided in section 44 of the Regulations. He further submitted that the Disciplinary Authority had provided the Disciplinary Committee with a copy of an audit report and a statement by one Nare and that this was all unprocedural. Asked by the Court whether there was an objection lodged with the Disciplinary Committee during the hearing, Mr. Matonhodze stated that this was only raised in the closing submissions.

In respect of the second ground of appeal, it was averred that Appellant had been found guilty on charges which had not been preferred against her. It was also argued that evidence should necessarily follow the charge (s) preferred against a litigant. It was further argued, in respect of the third ground of appeal, that the witnesses gave hearsay evidence as it was not stated that Appellant had directly received the money from the student nurses personally. It was also submitted that the evidence given by the witnesses was contradictory. In the fourth ground of appeal, Mr. Matonhodze argued that the penalty of dismissal was irrational as it was not supported by any substantive or material reasons.

Respondent’s Submissions

Mr. Chitekuteku stated that he was going to abide by the documents filed of record. He submitted that in respect of the first ground of appeal, nothing could have prohibited the hearing of further

evidence when the matter was referred to the Disciplinary Committee for a further hearing. He added that one of the reasons why the Disciplinary Authority had referred the matter was the existence of evidence which had not been available and had not been considered by the Disciplinary Committee. He submitted that if there something amiss with this procedure, the Appellant’s legal practitioner should have raised this during the proceedings but the legal practitioner had tacitly agreed to take part in the said proceedings.

As far as the second ground of appeal was concerned, Mr. Chitekuteku argued that Appellant was not complaining that she was found guilty on the basis of that evidence. He added that the evidence also pointed to further violations, for example, forcing students to buy her wares. He stated that this was evidence presented before the Disciplinary Committee and as such the Committee could not have ignored the evidence. He also submitted that the evidence given by the three witnesses cannot be said to be unreliable as the three versions pointed to the acts perpetrated by the Appellant. Mr. Chitekuteku submitted that, once the Respondent found the Appellant guilty of misconduct, the penalty remained in the domain of the Respondent. He further argued that the misconduct for which Appellant had been found guilty bordered on corruption and the trust between employer and employee had been broken. He thus urged the Court to dismiss the appeal in its entirety.

ANALYSIS

It is trite that an appellate court will only interfer with the decision of a tribunal a quo based on factual findings when there is evidence of a misdirection. It is also a truism that a serious misdirection on the facts amounts to a misdirection in law. However, for an appellant to avail himself/herself of a misdirection on the evidence, it should be demonstrated that the nature and circumstances of the case are such that a reasonable tribunal would not have arrived at the same decision on the same facts. Put differently, the decision must be irrational. (See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)).

The first ground attacks the remittal of the matter to the Disciplinary Committee by the Disciplinary Authority. Section 46 of the Health Regulations, Statutory Instrument 117 of 2006 provides:

“(1) On receiving the documents referred to in section 45 (6) the disciplinary authority may-

Refer the matter back to the disciplinary committee for further hearing; or

Proceed to determine whether or not the member concerned is guilty of misconduct as alleged.”

The provisions of section 46 (1) (a) are unambiguous. In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), it was held as follows:

“Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument or contract, having regard to the context

provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.”

It was suggested by Mr. Matonhodze that the Disciplinary Authority could not ‘unilaterally’ follow this procedure without referring the matter to investigations. Clearly, he is out of line. Investigations are provided for in section 44. The procedure after complying with section 44 is the hearing. The documents referred to in section 46 (1) emanate from a hearing provided for in section 45. The decision made by the Disciplinary Authority is after receipt of the ‘result’ of the hearing in terms of section 45. Section 46 does not refer to the procedure in section 44 which is a ‘pre-hearing’ stage. Thus, a reading of the section in question shows that it is clear and unambiguous and that the Disciplinary Authority acted within its mandate to refer the matter for a hearing before the Disciplinary Committee.

Another issue arises from the ground of appeal. The Court asked Mr. Matonhodze as to why the issue was not raised in the proceedings before the Disciplinary Committee. His response was that it was raised in the closing submissions. Clearly, if it had been raised at that level, the Disciplinary Committee would have dealt with it before proceeding with the matter. However, Appellant’s legal practitioners were willing to ‘swim along’ and then raise the issue at a later stage. The other matter raised was the provision of documents to the Disciplinary Committee by the Disciplinary Authority. As the background of the matter is clear, the witnesses had been reluctant to come forward and give evidence. They reconsidered their position and decided to give evidence. They provided the Disciplinary Authority with their statements. These were relayed to the Disciplinary Committee for the purposes of the ‘hearing’. Nothing untoward can come out of such a procedure. The first ground of appeal is without merit.

The second ground of appeal speaks to the fact that the Disciplinary Committee found that Appellant was guilty of other acts of misconduct which were not preferred in the charge. These include the alleged vending, forcing students to buy her wares and violating the conditions of her suspension. As pointed out by Mr. Chitekuteku, Appellant is not dissatisfied with the findings themselves. Appellant does not state that there was no such evidence but that they were not included in the charge. A reading of the Minutes of the Disciplinary Committee shows that such evidence was actually given by the witnesses. Ordinarily, it is a known fact that where an act of misconduct is not included in a particular charge, a tribunal is disabled from finding a litigant guilty on that score. However, the Health Service Commission Regulations have the following provision in section 46 (4):

“It shall be competent for the disciplinary authority to find a member guilty of an act of misconduct other than the act of misconduct which the member was originally alleged to have committed if the facts disclose such other act of misconduct.

Provided that, where the disciplinary committee has not made a finding that the member is guilty of such other act of misconduct, the disciplinary authority shall refer the matter back for further hearing by the disciplinary committee.”

The evidence was heard before the Disciplinary Committee which related to the other acts which were not included in the original charge. Statute has therefore covered this particular situation. There is therefore no merit in the ground of appeal.

The third ground of appeal relates to the nature and quality of evidence adduced before the Disciplinary Committee. It was averred that the evidence was speculative, inconclusive, contradictory and based on hearsay. What does the evidence show? Student Nurse Ngirandi had this to say:

“Later, Student Nurse Makomichi, one of the Student Nurse Representatives from the uniformed forces that she had appointed came to us with the same list of names that the tutor had taken away with her. He told is that the Principal Tutor had instructed that we pay USD $3 for cutting grass around the school of nursing.

WE paid the money but to our surprise the Principal Tutor came the following day and instructed us to cut the grass. We told her that we had paid money to Student Nurse Makomichi, instead of her as the Principal Tutor acting on this, she just told us that she was not aware of any payments.”

Student Nurse Chikondo had this to say:

“I am going to highlight specific incidences that I recall. Mrs. Edith Chinhiwu made me pay money for the cutting of grass at the school of nursing after I came in to the class at 0716 hrs. I would describe her as the ring leader of all these activities at the school of nursing forcing students to pay punishment fees and other purchases. She was one of the people who would threaten to fail or back group us.”

Student Nurse Nare’s piece of evidence is as follows:

“I reached a point of putting aside money usd50 just for weird payments, it was impossible to spend a week without paying something. If you happen to delay, the list of names would be put in the group, the mother tutor and the principal tutor are in these groups, however they would not say anything concerning these money issues. For me this was good enough to show that they were receiving these moneys and using group representatives to collect for them.”

A common thread runs through the evidence of these three witnesses. They all at one stage had some encounter with the Appellant. They state that student representatives were used to collect the money from them for various issues ranging from minor infractions to making contributions for buying ‘toner’. The witnesses also raise pertinent issues about Appellant’s behaviour pointing to the fact that she was a recipient of the money in question. Student Nurse Ngirandi points to

the issue that when they were asked to cut grass when they had paid the money, they informed the Appellant that they had paid. She did not raise any issue with the person who is alleged to have received the money on her behalf. Student Nurse Nare stated that the Appellant was in the group where discussions of payments were made which included lists of those who were still to pay. Student Nurse Nare stated that despite the Appellant being in that group and she being the Principal Tutor, did not raise any issues about the payments that were allegedly being paid.

Apart from the above evidence by the student nurses, the audit report found that some payments were made by the student nurses with no official receipts being issued. Part of the report from the auditors at page 61 of the record reads as follows:

“Auditors conducted interviews with more than 20 students and the following was confirmed:

1.2 The Principal Tutor, Mrs Chinhiwu and subordinates namely A Musakasa, L. Chivero, S. Chizanga and G. Gunika were extorting money from students under the guise of procuring TONER CARTRIDGES for the school. The students were made to contribute towards toner purchases in lieu of punishment for varying acts of misconduct. This was contrary to a letter which determines the nature and forms of suitable punishments meant for students.”

It is thus my considered view that the evidence referred to above cannot be described as speculative, contradictory or inconclusive. The ground of appeal has no merit.

The fourth ground of appeal should not detain the Court. It is trite that in circumstances where an employee is dissatisfied with the penalty issued by an employer, that employee has to demonstrate that the penalty was irrational in the circumstances. In other words, the litigant has to show that the nature of his/her misconduct was so inadvertent, so aberrant or otherwise so excusable that the remedy of dismissal was not warranted. This has not been done in the present circumstances.

In Wala v Freda Rebecca Mine SC 56/16, MALABA DCJ (as he then was) stated as follows:

“The seriousness of a misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found guilty of went to the root of the contract of employment in that it had the effect of eroding the trust the employer reposed in him as found by the arbitrator, could it still be said that the misconduct was trivial to warrant a penalty of dismissal? The appellant worked against company policy. It is a serious act of misconduct for an employee to deliberately act against the employer’s policies to advance personal interests.”

The facts clearly show that Appellant occupied a position of responsibility with a duty to supervise an institution responsible for the training of nurses. The allegations which emanated therefrom are of a very serious nature. Appellant was making student nurses pay money to her for minor infractions. She was also pocketing money contributed for the purchase of ‘toners’ when in fact these were supplied by the employer. Respondent’s outlook was clearly tarnished by these goings-on. It is my view that the penalty of dismissal was indeed commensurate with the nature of misconduct levelled against the Appellant. The ground of appeal is equally dismissed.

In the result, the appeal, being devoid of merit, is hereby dismissed with costs.

Matizanadzo Attorneys-	Appellant’s legal practitioners

Civil Division of the Attorney-General’s Office-	Respondent’s legal practitioners.