Elineth Dick v Zimbabwe Revenue Authority (ZIMRA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/22/2013
HELD IN HARARE, JANUARY 17, 2013
CASE NO. LC/H/594/11
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/22/2013

HELD IN HARARE, JANUARY 17, 2013		CASE NO. LC/H/594/11

In the Matter Between

ELINETH DICK					APPELLANT

And

ZIMBABWE REVENUE AUTHORITY		RESPONDENT

(ZIMRA)

Before The Honourable E. Makamure         : President

For The Appellant     		: Mr O. Shava (Legal Practitioner)

(with client)

For The Respondent  		: Ms A. Mapanzure (Legal Practitioner)

MAKAMURE E.,

The appellant was charged with:

Wilfully applying a wrong use, or unauthorised purpose, to assets or to property or alternatively.

Carrying out an act which is inconsistent with the express or implied conditions of the contract of employment.

The main charge is a violation of Group D – most serious offences, Category 3 of the respondent’s code of conduct.  The alternative is a violation of Group D – most serious offences, category 25 of the same code.

She was found guilty of both charges and dismissed.  Her internal appeal failed.  She appeals against the decision of the Respondent’s Appeals Committee.  It is important from the outset to state that where a person has been charged with a main and an alternative charge, that person can only be convicted of either of them and not of both.  It is incompetent to convict a person of both the main and the alternative charge.  The reason for charging a person with a main charge and an alternative one is simply to safe guard the situation where essential elements of the main charge may not have been met but those of the alternative have been met.  This ensures that a person who has committed an offence will not escape liability easily.

In the present matter the appellant was employed by the respondent as a manager in its audit department.  She was allocated a computer for use with internet facility – again for official use.

The appellant was bound to the respondent in terms of a contract of employment which she signed when she joined the respondent organisation.

Paragraph 21 of the contract reads as follows:

“21.1	Both yourself and the Authority are bound by the terms and conditions of employment laid down in terms of the various human resource policies and procedures.  This includes the code of conduct and Staff Handbook.  We note that policies and procedures are dynamic and charge regularly.  The conditions that apply are those that are published at the time and you are required to read them”.

Paragraph 17 of the same contract document requires:

“a high standard of ethics integrity and professionalism”

On record is an IT Policy document.  The document is meant for ZIMRA employees.  The document touches on security and internet mail and discourages against the use of offensive material.  The appellant was found to have sent offensive communication using the e-mail facility on her computer.  That was done during working hours.  The evidence against the appellant was summarised as follows:

Location	:	Harare Audit Kurima

File Name	:	FW: Work done in the kitchen

Date Sent	:	Thursday 4/22/2010   2.48pm

Recipients	:	elliotso@africaonline.co.zw

The appellant denied responsibility of sending the above email saying that someone could have maliciously planted it to tarnish her image.  But the evidence led against the appellant was that it could not have been somebody else because:

“Mr Chairman, I am saying that if the defendant wanted this committee to believe that the email in her box had been planted by direct editing, then this would not have been reflected in the logs used as evidence.  The evidence used came from the server and not the client machine.”

In other words the respondent’s monitoring mechanism was able to track this email and found that she was the one who had dispatched it during working hours and using respondent’s facility.

During the course of the hearing the appellant was asked whether or not she knew the recipient address and she declined from answering.  This raises the question – why did she refuse  to answer?  This in my view causes this Court to draw an adverse inference against the appellant.  Thus it can be concluded that the appellant did send undesirable material on e-mail during working hours using the respondent’s facility.

The appellant raised the concern that when these messages were extracted from her computer, she was not called.  I appreciate the concern.  However, the appellant declined from acknowledging whether or not she knew the recipient or the email address to which the message was sent from her computer.  That vitiates the importance of her presence at the time that the information was extracted from her computer.  Further she did not indicate where she was at the time that the message was sent from her computer.

I am satisfied that the respondent proved on a balance of probabilities that the appellant committed the offence [See Zimbabwe Electricity Supply Authority v Dera 1998(1) ZLR 500].  In my view therefore the appeals committee of the respondent did not err in their determination.

In the result I find that there is no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed.

Mbidzo, Muchadehama and Makoni, Legal Practitioners for the Appellant.

Kantor and Immerman, Legal Practitioners for the Respondent.