Enias Nhoro v Minister of Primary & Secondary Education & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/221/20
HELD AT HARARE ON 29th JULY, 2020
CASE NO. LC/H/14/20
JUDGMENT NO. LC/H/221/20
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/221/20

HELD AT HARARE ON 29th JULY, 2020	       CASE NO. LC/H/14/20

AND 23RD OCTOBER, 2020

In the matter between:-

ENIAS NHORO								Appellant

And

MINISTER OF PRIMARY & SECONDARY EDUCATION		1st Respondent

And

PUBLIC SERVICE COMMISSION					2nd Respondent

Before the Honourable Mhuri, J.

For Appellant			:	Ms. C. Mahlangu (Legal Practitioner)

For 1st & 2nd Respondent	:	Ms. T. Tembo (Law Officer Civil Division

of the Attorney General’s Office)

MHURI J.

During his tenure as Deputy Head at Kuredza Primary School, appellant was charged with acts of misconduct in terms of Section 44 (2) as read with paragraphs 1, 3, 13 and 24 of the Public Service Regulations 2000, Statutory Instrument 1 of 2000.

The allegations were that:-

Appellant violated procurement procedures when he sourced quotations from unreputable services providers and negotiated with one of the service providers to lower prices that resulted in price trading.

He wilfully absented from work by going to attend NAAZ sporting activities from 3rd July, 2017 to 19th July 2017 attending regional competitions in Kenya without prior approval from Cabinet as per instruction.

He inherited a bad practice of collecting borehole levy without approval from PED’s Office and did cause the collection of unapproved levies.

The Disciplinary Committee found him guilty of all the charges and recommended that he be fined $200,00 to be paid in 4 instalments and also that he be warned and reprimanded.

In terms of section 46 (1)(b) of the Public Service Regulations, the Disciplinary Authority found appellant guilty of violating paragraph 3 on the allegation that between 3rd July and 19 July 2017 he wilfully absented himself from work by attending NAAZ sporting activities in Kenya without prior approval from Cabinet as per instruction.  That he travelled to Kenya for NAAZ activities without getting his line Ministry’s approval and Cabinet clearance.

All Ministry officials who travel outside the country on work related assignments should get approval, from the Head of Ministry and hence Cabinet clearance.

The Disciplinary Authority also found appellant guilty of violating procurement procedures in that he negotiated with Mr. Munhuwendiro one of the service providers to lower prices resulting in price trading.  Mr Munhuwendiro was not tax complaint and was not selected by the Procurement Committee to do the job.

Appellant was also found to have collected borehole levy without approval from the PED’s Office and also that he increased the levy from $5,00 to $7,00 without the PED’s approval.

As a penalty, the Disciplinary Authority demoted appellant to the grade of Senior Teacher with effect from 14th January, 2020, transferred him from Kuredza Primary School to Nyamakate Primary School with effect from 14th January 2020.  He was reprimanded and warned.  The period 3 – 19 July, 2017 he attended the NAAZ activities in Kenya was granted as leave without pay.

The determination and penalty aggrieved the appellant who then noted this appeal.  His grounds of appeal are three and are as follows:-

The Disciplinary Authority erred and seriously misdirected itself in finding appellant guilty;

of failure to obey lawful instructions more particularly on the allegations that he travelled outside the country without getting Ministry of Primary and Secondary Education approval.

on allegations that he violated procurement procedures by negotiating with one of the service providers and receiving quotations from him.

of failure to obey lawful instructions more particularly on allegations that he increased the levy without the PED’s authority.

All these allegations were not what appellant was facing.  The charges or findings were not supported by evidence on the record so was appellant’s case.

Appellant’s prayer was to have the determination set aside and reinstate appellant to his previous station and position of substantive Deputy Head, without loss of salary and benefits with effect from date of demotion and transfer.

In substantiating his grounds of appeal appellant’s submissions generally were that it was a gross misdirection to find him guilty on charges which were not contained in the charge letter, that it was wrong for the Disciplinary Authority to change the facts and find appellant guilty on the basis of the changed facts, namely, that he travelled to Kenya ………. without line Ministry’s approval and authority from Cabinet.  And also that he increased the levy without PED’s authority.

Appellant submitted that in terms of Section 46 (4) of the Public Service Regulations, if facts can prove another violation, it is competent to find the member guilty of that other charge but it is not proper to change the facts in the determination.

As regards ground 2, appellant submitted that there was a gross misdirection on the facts as what appellant did was consider the quotation by the supplier after quotations had been sourced and considered by the Procurement Committee.  As Acting Head he was not a member of the Procurement Committee.  It was only then that he spoke to the supplier stating that since he had been chosen if he can reduce his prices as the school does not have money.  He submitted that, it would have been price trading if he had said so before the supplier had been chosen.

His submission was that it is grossly unfair to demote him for having negotiated to have the price reduced after the procurement process.

In response to the appellant’s submissions, respondent stated that the alleged variation of facts is provided for by Section 46 (4) of the Public Service Regulations.  The Disciplinary Authority was well within its powers to change the charge during the hearing in terms of the above section as such appellant’s claims are baseless.

It was submitted that a simple reading of this provision is that assuming that the employee is charged with certain provisions of the Regulations if the facts disclose that another act was committed he can be found guilty of another act.

And for the charge of inheriting a bad practice, it was respondent’s response that appellant admitted to the act hence the Disciplinary Committee’s finding of “guilty by own admission.”  It submitted that there was no change or alteration of the charge as alleged by appellant.

As regards the penalty imposed, respondent’s submission was that there is nothing gross about the penalty imposed as such the Appellate Court does not have the discretion to interfere with it.

In considering this appeal, one has to look at the charge letter, the findings and determination so as to determine whether, the Disciplinary Authority changed the facts and found appellant guilty of charges he was not initially charged with.  Was section 46(4) of the Public Service Regulations correctly applied in the circumstances.

The charges levelled against appellant were:-

Paragraph 1

Absence from duty without good cause, including any abuse of sick leave;

Paragraph 3

Failure to perform any work or duty properly assigned, or failure to obey lawful instructions, including circulars, instructions or standing orders issued by the Commission, the Treasury or the Accounting Officer.

Paragraph 13

Corruption or dishonesty ………………………..  It is noted that appellant was found not guilty of this particular charge.

Paragraph 24

Any act or omission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority.

The facts that support these charges are as shown in the earlier part of this judgment.

The Disciplinary Authority’s determination and findings are contained in its letter dated 19th December 2019 and are captured in the earlier part of this judgment.

Section 46 (1)(b) of the Regulations authorises the Disciplinary Authority to proceed to determine whether or not member is guilty of misconduct as alleged.

Subsection (4) however provides that:-

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

This subsection however has a proviso which reads:-

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

This subsection is quite clear and unambiguous such that it needs no interpretation.  I agree with the Appellant’s interpretation of the subsection that the facts must be the very same facts that reveal another charge and if these very same facts reveal another charge, it is then competent for the Disciplinary Authority to find the member guilty of that other charge.

However, as the proviso states, if the Disciplinary Committee has not made a finding of guilty on that other charge, the Disciplinary Authority is mandated to refer the matter back to the Disciplinary Committee for further hearing.

In casu, did the Disciplinary Authority change the facts and find appellant guilty of another charge as submitted by appellant .

It is not in dispute that appellant attended the NAAZ activities in Kenya during the period 3rd to 19th July 2017.  Cabinet authority had not been issued, save for an authorisation letter from the Sport and Recreation Commission.

The charge allegation was worded as follows:-

“You wilfully absented from work by going to attend NAAZ sporting activities from 3rd July, 2017 to 19th July 2017 attending regional competitions in Kenya without                  prior approval from cabinet as per instruction,”

The Disciplinary Authority’s determination was

“Guilty of violating the provisions of paragraph 3 …………………………… while you were the Deputy Head at Kuredza Primary School you wilfully absented yourself from work by attending NAAZ sporting activities from 3 July,2017 to 19 July 2017 in Kenya without prior approval from Cabinet as per instruction.

You travelled to Kenya for NAAZ sporting activities without getting your line Ministry’s approval and Cabinet clearance.

All Ministry officials who travel outside the country on work related assignments should get approval from Head of Ministry and hence Cabinet clearance”. (Emphasis added)

A reading of the above clearly shows that the appellant was found guilty of the very same charge which was initially levelled, against him.  Appellant did not get cabinet authority before he left for Kenya.

I do not find how the facts were changed and how consequently the charge was changed.

This ground of appeal is without merit and I dismiss it.

The Disciplinary Authority’s letter of determination shows that the Disciplinary Authority invoked subsection (4) of section 46 only in respect of the other two charges vis the one on procurement procedures and on the borehole levy.  According to the determination letter, this was in respect of the period the allegations        arose.  It stated,

“while you had been charged, on the allegation that sometime between April 2017 and September, 2017 when you were Deputy Head at Kuredza Primary School you

violated procurement procedures

………………………………………………

Inherited a bad practice of collecting borehole levy ………………..

It has been noted that the correct period covering the allegations as cited in the audit report is from January 2015 to July 2017 and September 2017 as cited in the charge letter.

However, the Disciplinary Authority acting in terms of section 46 (4) of the already cited regulations has found you guilty of violating the provisions of paragraph 3 of the First Schedule (Section 2) of the already cited regulations on the allegation that between January 2015 to July 2017 while you were the Deputy Head at Kuredza Primary School you;

violated procurement procedures………………….

collected borehole levy without approval from PED’s office…..”

The Disciplinary Committee had made this observation so the proviso to section 46 (4) does not apply.

As alluded earlier, the Disciplinary Authority only changed the period (ie the dates) to reflect the period as covered in the audit report. I did not hear appellant say that they did not have the audit report, or that the change in the period prejudiced them in their defence to the charges. Save for this, the facts remained the same.

I therefore find no gross misdirection on the part of the Disciplinary Authority which would warrant the Court’s interference in that regard.

From the record, (page 13) it is clear that appellant was aware that cabinet authority was required, permission from his Ministry was also required. When proferring his response to the charge, before the Disciplinary Committee, he stated, “Sports and Recreation Commission was dealing with cabinet clearance”. When asked by the committee whether the cabinet clearance came, he stated, “Sports Recreation Commission said that it would come”. The next question was, Did you seek permission from the Ministry? He responded, “I wrote a letter and filled in leave forms through the Head”.

From the above, it cannot therefore be said that the Disciplinary Authority changed facts and found appellant guilty on the changed facts. Its clear he left for Kenya without having obtained cabinet authority or his Ministry’s approval.

The record (page 12) also shows that appellant was a member of the procurement committee. He states, “we had a procurement meeting for tiling the toilets. Mr Makambaire came and we told him that we already procured and agreed on a supplier to use”. (emphasis added).

The record also shows that the appellant does not deny that he negotiated with the supplier. He states at page 16 “considering that Mr Makambaire negotiated to a certain level and I also negotiated. Can the auditor explain why I am the only one who is said to have negotiated un-procedurally”. Further the record shows that the auditor’s evidence that the supplier directly submitted his quotation to the appellant was not vigorously challenged. It is also not in dispute that the price was reduced from $337-00 to $290-00 making this quotation the cheapest.

To that end, I find the Disciplinary Authority’s finding of guilty unassailable.

As regards the charge of borehole levy, this also is common cause. The Disciplinary Authority although finding appellant guilty on this charge, found that his conduct was mitigated by the fact that appellant was not aware that the levy was not authorised after having taken over from his predecessor.

Overally therefore it is my finding that the Disciplinary Authority did not misdirect itself in its findings of guilty. Neither, in my view did it misdirect itself in imposing the penalty it did.

It is trite, the imposition of a penalty is solely the discretion of the employer. An appellate Court cannot lightly interfere with the exercise of such discretion unless it has been injudiciously exercised.  See  ALPHA MADZIVA

V

MARANGE RESOURCES P/L

SC 12/18

In the result, I will dismiss the appeal in its entirety.

It is therefore ordered that the appeal be and is hereby dismissed with costs.

MESSRS RUZVIDZO AND MAHLANGU ATTORNEYS -	Appellant’s Legal Practitioners

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondents’ Legal Practitioners