Elvis Mungofa v Premier Service Medical Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/153/2016
HARARE, 10 FEBRUARY 2016
CASE NO. LC/H/153/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/153/2016

HARARE, 10 FEBRUARY 2016			          	       CASE NO. LC/H/373/15

AND 18 MARCH 2016

In the matter between:-

ELVIS MUNGOFA								Appellant

And

PREMIER SERVICE MEDICAL INVESTMENTS			Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr C. Maunga (Legal Practitioner)

For Respondent		Mr A.K. Maguchu (Legal Practitioner)

MAXWELL, J:

This is an appeal against the decision of the respondent’s Appeals Authority to uphold the decision of the Disciplinary Committee dismissing the appellant.

Appellant was employed by respondent as an accountant at head office.  He was charged with fraud in terms of the respondent’s code of conduct.  He was convicted and dismissed from employment.  An internal appeal was not successful leading to appellant approaching this court.  The grounds of appeal are:

The Appeals Authority fundamentally misdirected itself in finding appellant guilty of a charge of fraud when the facts did not support the charge.  It was a fact that appellant is not the one who prepared and submitted the papers for payment.  No allegations of connivance were made against the appellant.  According to the facts the charge against appellant should have been failure to follow procedures. (SOPS).

The charge of fraud was not proved against the appellant.

Alternatively

The Appeals Authority misdirected itself both in fact and at law in dismissing the appellant when the company did not suffer actual prejudice.  The penalty of dismissal was not appropriate in the circumstance.

Appellant prays for the decision of the Appeals Authority to be reversed and substituted with ether his acquittal or a penalty of a final written warning or demotion.

In response respondent submitted that the offence had been proven and appellant had admitted improper behaviour.  Respondent further submitted that evidence was led to show that appellant caused a payment to be made when it was not due and followed up on the excess payment to the supplier where he was given the excess money.  On the issue of penalty respondent submitted that the offence involved a breach of trust therefore the appeal lacks merit and should be dismissed.

Now turning to the grounds of appeal, the first and second fault the Appeals Authority for convicting him of fraud.  He alleges that the facts did not support the charge and that he should have been charged with failure to follow standard operating procedures.  The record of proceedings does not bear him out at all.  Appellant’s heads of argument concentrated on the definition of fraud as given in Black’s Law Dictionary, volume 1. Counsel analysed the requirements as per that definition and concluded that the intention to deceive was not proved in evidence.  His submissions ignored the fact that the code of conduct gives a definition of fraud.  As stated in respondent’s heads of argument what was needed to be proved was unlawful and intentional misrepresentation, falsification or attempt to falsify documents causing actual or potential prejudice.

The record of proceedings indicated that appellant admitted to have given a reconciliation of USD28 000.00 instead of USD22 000.00.  On being confronted with this by the Appeals Authority he stated on page 3 of the minutes of the Appeals authority.

“I take responsibility for the USD6 000.00 that one you can say it was misappropriated …”

Whilst there is evidence that appellant did not follow proper procedures, the Appeals Authority cannot be faulted for confirming his guilt for fraud in the face of an admission to misappropriation.  Counsel for appellant seems to be challenging the standard of proof applied for the amount of $10 000,00 that appellant was convicted of as well.  He submits that the evidence of Nengomasha from Marple Electronics should not be relied on as he is not a credible witness.  This is to ignore the fact that the witness’ evidence was not challenged at all.  On page 3 of the minutes of the Disciplinary Hearing it is recorded that appellant refused to cross examine the witness.  The Appeals Authority cannot be faulted for finding that on a balance of probabilities appellant facilitated the USD10 000.00 with fraudulent intentions.  It is trite that in civil matters the standard of proof is on a balance of probabilities.  See Zimbabwe Financial Holdings v Mafunga SC 45/05 Insing Investments (Pvt) Ltd v Cotton Company of Zimbabwe Limited H-H 440 – 2012.

The first and second grounds of appeal therefore have no merit and cannot succeed.  The third ground of appeal criticizes the Appeals Authority for dismissing the Appellant when the company did not suffer actual prejudice.  Appellant in heads of argument argues that dismissal is a penalty of last resort.  He prays that the penalty of dismissal be substituted with a written warning or demotion.  Appellant’s arguments ignore the decisions of the Supreme Court on the matter.  These are amply set out in respondent’s heads of argument.  Counsel for appellant chose to ignore the principles set out in those cases and as pointed out by respondent, such an attitude is a clear waste of the court’s title and a disservice to the client.  In the case of Innscor v Chimoto SC 9/12 the court held that the issue of prejudice was irrelevant to the assessment of an appropriate penalty.  It is also trite that where the misconduct goes to the root of the employment relationship, the employer is entitled to dismiss the employee.  See Mashonaland Turf Club v Mutangadura SC 5/12 Tregers Plastics (Pvt) Ltd v Sibanda and Another SC 22/12.  In Toyota Zimbabwe v Richard Pasi SC 55/07 the Supreme Court held that dismissal was appropriate even for a first offender.  Appellant’s arguments against the penalty of dismissal are therefore without a sound legal basis and cannot succeed.

Accordingly the appeal has no merit and the following order is appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Maunga Maanda & Associates, applicant’s legal practitioners

Dube Manikai & Hwacha, respondent’s legal practitioners