Gabriel T Mubayira v Minister of Transport, Communication & Infrastructure Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/159/13
HELD AT HARARE 9TH MAY 2013
CASE NO
JUDGMENT NO LC/H/159/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/159/13

HELD AT HARARE 9TH MAY 2013 		     CASE NO LC/H/183/12

GABRIEL T MUBAYIRA					Appellant

MINISTER OF TRASNPORT,				Respondent

COMMUNICATION & INFRASTRUCTURE

DEVELOPMENT

Before The Honourable G Musariri, President

For Appellant		Mr G Mubayira, Appellant

For Respondent		Mr C Karinga, Officer

MUSARIRI, G:

Appellant appealed to this Court against his dismissal from employment by Respondent.

His grounds of appeal complained that,

“1. 	 The Appellant was not accorded a fair hearing at the work place

and in particular the Respondent refused/neglected to release key witnesses.

The disciplinary proceedings were heavily, flawed and the principles of natural justice and fairness were not adhered to.

The Appellant did not receive adequate training and was not given proper induction.  The decision to dismiss the Appellant is too harsh in the circumstances.

4)	The Applicant (sic) was not afforded an opportunity to address the disciplinary committee in mitigation.”

Respondent filed a response through the Civil Division of the Attorney General’s Office.   It read thus,

“1.	Applicant was accorded a fair hearing in terms of the Public Service Regulations 2000.  He was charged with misconduct and appeared before a Disciplinary Committee on 26 January 2012.  Furthermore, in the minute of notice of misconduct hearing dated 28 December 2011, he was advised of his right to call witnesses, which right he did not exercise.

2.	Appellant does not show how the disciplinary proceedings were flawed.  It is not clear also what principles of natural justice were not adhered.  Appellant was afforded an opportunity to be heard.

3.	Appellant was given on the job training by the Depot Manager for 14 days before he assumed duty.  The penalty was appropriate in the circumstances.

4.	Appellant, through his legal representatives exercised his right to mitigation.  A reading of the disciplinary hearing minutes reveals that mitigation was done.”

Appellant worked for Respondent as an Accounting Assistant at Chirundu Border Post.  He was responsible for the collection and receipting of revenue on behalf of the Government of Zimbabwe (GOZ).  Vehicles transiting through Zimbabwe were required to buy transit coupons.  The coupons in casu were

issued on 6 October 2010.  Appellant re-stamped the coupons on 7 November 2010.  He stamped over the earlier date.  The coupons which had lapsed were thereby revived.  Hence the charge of falsifying documents or uttering same.

The grounds of appeal do not deal with the evidence or proofs.  Rather they attack the proceedings and the penalty imposed.  As for procedure,  Appellant himself chose the wrong procedure to challenge the alleged irregularities.  Such should be raised by way of review rather than appeal.  This disposes of the 1st, 2nd and 4th grounds of appeal.  Respondent denied the alleged “improper” or inadequate induction.  In any event an inadequate induction would not assist Appellant in this case.  He was charged with misconduct involving dishonesty.  Whether or not he was properly inducted does not make a material difference.  An employee, however inducted, has a fiduciary duty to conduct his employer’s business with honesty.  Appellant breached this duty and fraudulently revived transit coupons which had lapsed.  That was a gross act of misconduct.  Respondent was entitled to penalize such conduct with dismissal.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT