Gladwell Soda v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT, NO LC/H/169/25
HARARE, 25TH FEBRUARY, 2025
CASE NO LC/H/1156/2024
AND
23RD APRIL, 2025
GLADWELL SODA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 25TH FEBRUARY, 2025
AND
23RD APRIL, 2025

JUDGMENT, NO LC/H/169/25

CASE NO LC/H/1156/2024

GLADWELL SODA

APPLICANT

AND

HEALTH SERVICE COMMISSION

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant - Mr. O. Temani (Legal Practitioner)

For Respondent - Mr A. Magunde (Civil and Attorney)

CHIVIZHE, J:

This is an appeal against the determination and penalty imposed by the Respondent on the 25th of October 2024. The appeal is opposed.

BACKGROUND FACTS

The material facts are that the Appellant was employed by the Respondent a Tutor at Chivhu General. He was suspended from work on 26th May, 2024. Charges were thereafter levelled against him under the **First Schedule (section 2)** of the **Health Service Regulations, Statutory 117 of 2006.** The allegations behind the first charge of **breach of paragraph 13 (d) Falsifying or attempting to falsify any documents with fraudulent intent or uttering a**
 forged document, were that he had removed some sheets from the answer scripts of student nurses Chizanga Pauline Nomagugu, Chikwanda Takudzwa, Chaurara Ireen and Nosenya Sharleen and replaced them with new answer scripts which had not been signed by Mr. Shayanewako Johane the invigilator. The original script for the four students were not found and it was the employer position that the Appellant himself had destroyed them to conceal the evidence.

The second charge levelled was of breach of paragraph 13 improper threatening insubordinate or discourteous behaviour including sexual harassment, during the course of duty towards any member of the Health Service or any member of the public. The allegations behind this charge were that the Appellant had sexually harassed the same four student nurses referred by having sexual intercourse with them without their consent on different occasions and in different places. In doing this he had made a promise to each of them that he would pass their examination scripts. The Appellant was further alleged to have threatened/blackmailed the student nurse Chikwanda Takudzwa to have sexual intercourse with him. He had allegedly threatened to forward a certain message to her husband and to also back-group her if she refused to have sexual intercourse with him.

The Appellant was thirdly alleged to have breached paragraph 22 of the First Schedule under the same regulations that is any act or commission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority. The allegation was that the Appellant was the custodian of the examination answer scripts, he had taken advantage of this position to replace the answer scripts for the four student nurses with new scripts which had been written outside the examination. He was also alleged to have given Chauura Ireen the exam script to take home on the 1st of March, 2024 to return it on the following Monday thus showing a high level of unprofessionalism and abuse of authority.

In his defence, the Appellant submitted in respect of the charge of forgery that he had not removed sheets from the answer scripts. He also did not insert a different signature on the scripts. There was also the possibility of the scripts having been swapped before reaching him. It was his view that in the absence of concrete evidence of him swapping and forging scripts he was not guilty of the charge. In regards the charge of sexual harassment he underlined that none of the victims had made a report of their alleged abuse by him in the manner as suggested. He alleged that they were all fabricated lies by the students concerned. In regards the last charge he denied giving Ireen Chauura the exam script on the 1st to return on the 4th March, 2024. His defence was that he was in Bindura during that period.

Following a fully-fledged hearing where evidence was led from several witnesses the Appellant was, through a letter dated 15 June 2024, found guilty of all the charges. A penalty of discharge from the Health Service Commission with immediate effect was thereafter imposed. His appeal to the Health Service Commission was unsuccessful.

**GROUNDS OF APPEAL**

The Appellant was aggrieved and noted the present appeal with this court. The grounds on which appeal is premised are as follows;

1. The Respondent erred when it upheld the conviction of Appellant on the first charge without evidence that he replaced answer scripts. The answer sheets were handled by several tutors who were invigilating the exams and Appellant only received them at days after the examinations.

2. The Respondent erred by upholding a conviction on a charge of sexual harassment. The charge and the allegations are of a criminal nature and it boggles the mind why if that is what transpired that was not made a criminal matter. The complainants want to evade punishment for their misdemeanours by fabricating allegations against Appellant.

3. The Respondent misdirected itself at law by confirming the decision of Disciplinary Authority notwithstanding the splitting of charges. It ought to have realised that it amounts to splitting of charges which is not permissible at law since the allegations and circumstances on third charge are the same as first charge.

4. The Respondent grossly erred and misdirected itself by ignoring the vast mitigating factors in assessing proper penalty in the event that Appellant was guilty. The Appellant is a first-time offender who has worked for 38 years in the Ministry of Health and Child Care and is due for early retirement being of 61 years of age. The penalty should be altered with due consideration of long period of service with a clean record.

The Respondent is opposed to the appeal. Through the Opposing Affidavit of Christopher Pasi, the Secretary to the Health Service Commission the Respondent contends that the whole appeal lacks merit. In addressing the specific grounds, Respondents contends the first ground lacks merit as sufficient evidence was led to substantiate the charge. On the second ground of appeal Respondent contends that sexual harassment is indeed an offence in terms of the relevant Code of conduct. The Respondent further submits that sufficient evidence was also led to prove that charge. With regards ground of appeal number 3 Respondent contends that this is not a proper ground of appeal, it is a proper ground for review. The Respondent’s prayer is for it to be struck off consequently. In the event that the court finds that the ground is properly placed before it and there was indeed splitting of charges the Respondent contends that the court should still find that the Appellant was still found guilty of a serious offence on the remaining charge and that it warranted a discharge penalty. On the last ground pertaining to penalty, the Respondent contends that the Appellant was found guilty of a heinous offence of sexual harassing several female students. Having being found guilty of such a serious offence the employer was entitled to impose a harsh penalty of discharge from service. The issue of penalty is after all in the sole discretion of the employer. It cannot therefore be lightly interfered with. In the circumstances the Respondent prayer is for the appeal to be dismissed with costs.

PARTIES SUBMISSIONS

Mr Temani, for the Appellant, submitted that he was abiding with Heads of Argument filed. He however wanted to emphasise on three critical points. Firstly, that the Respondent disciplinary committee grossly erred and misdirected itself in finding the Appellant guilty on the first charge of forgery in the absence of concrete evidence led to sustain the charge. There was no expert evidence led to confirm that the forged signature on the scripts was Appellant’s signature. He contended that the finding made in the absence of such critical evidence was grossly unreasonable as to induce shock. On the basis of the principle established in *Nyahondo vs Hokonya 1997 (1) ZLR* this court sitting as an appellate court has the power to interfere with the finding made.

In relation to the charge of sexual harassment, Mr Temani submitted that the disciplinary committee grossly erred by finding Appellant guilty of the charge. The evidence led clearly showed that all the student nurses had consented to have sexual intercourse with the Appellant. None of them had made a report that they were forced. Mr Temani submitted that the student nurses were also induced to lead evidence at the hearing. They were also afraid of being punished by the authorities for exam cheating. They were therefore witnesses with an interest to serve. Mr Temaini urged the court to find that the charge of sexual harassment not having been proved stands to be set aside.

Mr Temani also submitted that there had been any unfair splitting of charges. He specifically referred to the two charges under paragraphs 13 and 22. His submission was these charges were dissimilar in nature the Respondent was however relying on the same evidence to sustain both charges. The Appellant had been prejudiced as a penalty of Discharge was returned on the basis of his conviction on three charges.

Ms Mangunda for the Respondent, in her reply, submitted that Respondent was also abiding with papers filed of the record. On the issue of lack of evidence to support the charge of sexual harassment her submission was that the record clearly showed ample evidence had been led to prove the charge. Although there was no definition in the Code of the charge the circumstances clearly pointed to the existence of inappropriate relationships between a superior and juniors. The Appellant was abusing his position to coerce the student nurses to have sexual intercourse with him in exchange for favour. There was clearly a vertical relationship involved. Ms Magunda conceded that the issue of lack of consent that had been raised by the Disciplinary Committee would not apply in this particular case. The issue of having sex without consent only arises in a criminal charge of rape. Her view was notwithstanding, sufficient evidence had been led to sustain the charge of sexual harassment as it is generally understood to mean.

In regards the claim of an unfair splitting of charges, Ms Magunda submitted that this ground is not one raised in an appeal. It is a review ground. She referred the court to an authority in Tendayi Bonde vs National Foods Limited SC 11/21. In Air Zimbabwe vs Chiku Mensa SC 89/2010 the Supreme Court had also emphasised that a litigant cannot escape the consequences of his misdeeds because of a failure to conduct proceedings properly. He must escape only because he is innocent. There was in this case overwhelming evidence of the Appellant’s guilt on all charges.

On the last ground based on penalty Ms Magunda submitted that section 50 (1) of the Public Service Regulations imposes various forms of penalties including a Discharge from Service in the most serious acts of misconduct. The law was also clear that the issue of an appropriate penalty to impose remains the prerogative of the employer, in this case Appellant had been found guilty of very serious charges, a penalty of Discharge from service was clearly warranted.

In response to a query by the court, Ms Magunda submitted that if indeed there had been unfair splitting of charges, the Respondent prayer was that the court could still find that Appellant was properly convicted of the remaining charge between the two charges whichever it was a penalty of discharge was still appropriate. In regards the reliance by the Disciplinary
 Committee on the wrong test for sexual harassment the Respondent position was that if the court did arrive at that position then it would be appropriate for the court to set aside the proceedings, direct that the matter be remitted to the Disciplinary Authority for a hearing *de novo*. In such circumstances the Appellant would have to be reinstated to his original position. Lastly the submission was made that the Respondent view was that the concept of unfair splitting of charges is a concept associated with criminal proceedings and not civil proceedings. The court was urged therefore to find that there had been no unfair splitting of charges.

**EVALUATION**

The Appellant has correctly submitted that the law in regards the powers of this court, sitting as an appellate court to disturb findings of facts of lower tribunals is aptly captured in *Nyahondo vs Hokonya and Others 1997 (2) ZLR 475 (SC)*. The Supreme Court in that case stated as follows;

> “An appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted … standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

The complaint in Appellant’s first ground is that the disciplinary committee erred and misdirected itself in convicting him of the first charge in the absence of any evidence led to prove that he removed and replaced answer scripts for the four student nurses involved. This was in the light of the same answer sheets having been handled by several tutors who were invigilating the exams. Appellant contends he only received the answer sheets days after the examination. The Appellant also submits that no expert evidence having been led to show that he forged the signature on the scripts he ought not to have been convicted on the charge.

The Respondent has challenged the Appellant on this ground by submitting that sufficient evidence was led to found conviction. By way of an example reference was made to the record page 42 where there is the testimony of one witness Takudzwa Chikwanda. In her evidence she had stated as follows;

> ‘He called me and told me that he can come to my residence such that we can change the paper and you can rewrite and i will give you good marks like 18/20.”

> “He came to my residence. He had sex with me and after that I wrote the exam and he assured me that he is going to give me a good mark such that I pass’
 It is clear on the basis of this witness evidence that the Appellant did indeed commit the act of removing and replacing the answer- sheet for the witness. The witness was able to retrieve the paper she had written at home during the hearing. The paper had sheets removed it also had a forged signature of the invigilator as established during the hearing. The invigilator Mr. Shayanewako’s signature presented at the hearing was compared with the signature on the replaced answer script for the witness. In his cross-examination the Appellant did not focus on the issue of the forged signature. He only seemed kin to dislodge the submission by the witness that he had coerced her to have sexual intercourse with him. He also did not raise the issue of calling for expert evidence which he has sought to place before this court. That issue not having been presented before the Disciplinary committee is clearly improperly taken before this court. It is also apparent from a reading of the record that similar evidence was led from the other three student nurses. The witnesses all admitted to writing the new exam scripts at home and giving them to the Appellant. They were all requested to identify the same scripts in the hearing. The scripts were found to have missing sheets and forged signatures. The Appellant on the basis of this evidence was properly found guilty on the first charge. The first ground of appeal clearly cannot stand.

On the second ground of appeal the Appellant contends firstly that the charge is of a criminal nature, the allegations were also of a criminal nature as evidenced by the conclusion reached by the Disciplinary Committee that Appellant had sexual intercourse with the witnesses without their consent. The Appellant contends that there was resultantly a misdirection on the facts and law by the Disciplinary Committee. The Respondent does not agree.

The charge levelled by the Respondent was of breach of paragraph 22 under the First Schedule of the Regulations. It is therefore a charge provided for under the relevant code of conduct. The issue of it being a criminal charge clearly does not arise. The Appellant also emphasised that the Disciplinary Committee had applied the wrong test to establish/prove his guilt on the charge. This he submitted was clear from the Disciplinary Committee findings.

This case clearly serves to highlight the weaknesses in the public service to have in place mechanisms and a proper legal framework to address the issue of sexual harassment. It is clear that the term sexual harassment has not been defined in the relevant code. Although the Zimbabwe Sexual Harassment Policy was adopted in 2021 and one of the objectives was to ensure replica sexual harassment policies were adopted in public institutions and to also include measures for investigation, redress of sexual harassment cases, it is clear that none such measures were in place at the time of investigation and the ultimate hearing of this matter.

The **Labour act (Chap 28:01)** itself under **section 8** provides for sexual harassment as an unfair labour practice. It provides that an employer commits an unfair labour practice if, he, amongst others, demands from an employee sexual favors as a condition of improving renumeration or other conditions of employment. Through **the Labour Amendment Act number 11 of 2023** violence and harassment has been defined as follows;

“in the context of **section 6(3)** and **section 8** refers to a range of unacceptable behaviours and practices or threats thereof whether a single or repeated that aim at, result in or are likely to result in physical, psychological, sexual or economic harm and includes gender based violence and harassment”

The term “sexual harassment” has been defined under the International Labour Organisation as a sex-based behaviour that is unwelcome and offensive to its recipients. Sexual harassment generally takes two forms, i.e. the *qui pro quo* – where the victim is required to provide something to the perpetrator such as sexual favours in exchange for promotion for favourable results, etc. The second form is of a hostile environment in which the conduct of the perpetrator creates conditions that are intimidating or humiliating for the victim such as touching, kissing, physical violence, suggestive verbal comments, phone calls, gestures, etc. See **Rodgers Matsikidze paper on strengthening legislation as a way to combat sexual harassment in the workplace, 2017.**

It is clear *in casu* that although the relevant code does not provide a definition of the term Appellant conduct is clearly actionable and qualifies as sexual conduct of the first type i.e. *quid pro quo*. The victims in all cases were approached by the Appellant and were advised to rewrite the exam scripts at home. At least one of them wrote in his presence and thereafter he had sex with her before collecting the script which was later produced in the hearing. With the other victim it was actually the third time Appellant had asked her to provide sex in exchange for a pass mark. The victim who happened to be married submitted in the hearing that she no longer could produce evidence of Appellant text message as she had deleted these to safeguard her marriage. Yet another of the victims submitted that the harassing took the form of unwelcome visits to her house by the Appellant, where he would make suggestive comments like “you owe me a hug” which would then be accompanied by a physical hug which was uncomfortable for her according to her testimony. That witness upon further probing also admitted that she had had sex with Appellant on at least one occasion.

It is important to note that the Appellant in his defence before the disciplinary committee denied ever having sexual intercourse with the victims. He was unable however able to prove his claim of fabrication hence his conviction under this charge. Before this court however the Appellant has presented a new and different position. He, according to his Counsel is not denying he had sexual intercourse with the victims. He has instead placed emphasis on the fact that the victims had not reported him to the authorities suggesting that the sexual intercourse was consensual with all of them. The Appellant as submitted by the Respondent cannot be allowed to approbate and reprobate. The Appellant has also raised the issue of malice and connivance by the victims. The Appellant has again failed to show that the victims were just malicious and connived to fabricate the allegations against him. In fact the issue of malice and connivance is only raised for the first time before this court. It was not raised in the hearing a quo.

There is however merit in the third ground that there was an unfair splitting of charges in relation to the charges under paragraph 13 and 22.

The test for unfair splitting of charges was laid in a judgment of this court in Kucheria vs Scientific and Industrial Research and Development Centre LC/H/222/07 where it was stated as follows;

“An employee should not face a multiplicity of penalties for a single act. The rationale of the rule against splitting of charges is to protect an accused person from a multiplicity of penalties arising from a single act.”

In Taruvinga vs Cimas Laboratories SC 19/05 the Supreme Court found that there is no unfair splitting of charges where there are facts to the Respondent’s conduct that constitute different offences. The issue before the court therefore is whether or not there was unfair splitting of charges in this case.

The record clearly shows the complainant on page 25 of the minutes explaining why the two charges were levelled. It would appear the charge under paragraph 22 was introduced to address the aspect of abuse of authority. The complainant further down in the record however indicated as follows:

“C.O. We combined the first charge and the third charge because the witnesses are the same.”

‘C.O. We combined the first and third charge and there is overwhelming evidence that Mr. Soda was in custody of the examination answer scripts for paper 1 on the same day and paper 2 was submitted on Monday the 4th of March, 2024. The student nurses clearly stated that they wrote exams at home and that is is abuse of authority because he is the initiator. It is deliberate and intentional and he is the one who collected the papers from the students.”

My reading of the record indicates that although the Respondent intended to lay two different charges based on the submission by the complaint the Respondent opted to pursue the charge under paragraph 22. The evidence led which was from the same witnesses was relied upon by the disciplinary committee to find conviction on the two charges under paragraphs 13 and 22. There is no doubt therefore that there was indeed an unfair splitting of charges. The Appellant has correctly claimed prejudice to the extent that the ultimate penalty of discharge from service was returned by the disciplinary committee on the basis of his purported conviction on three charges.

Tied to this last submission the Appellant also claims that that the penalty imposed was too harsh to the extent of inducing a sense of shock. The Appellant contends that the employer ought to have considered his lengthy service. It is a trite position at law that penalty is in the discretion of the employer. The discretion can only be interfered with where it is shown that the employer improperly exercised the discretion. Authorities abide on this point. See for example In Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC 2/16 where the Supreme court held that the right to dismiss is available at common law and that such right is entrenched. The employer may, in the exercise of its discretion, impose a lesser penalty than dismissal. The same position of the law is also captured in the case of Mashonaland Turf v George Mutangadura SC5/12 where the Supreme court noted that

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of misconduct that goes to the root of the employment contract”.

The court having found that there was indeed an unfair splitting of charges it must follow that the conviction on the charge under paragraph 13 ought to be quashed. It may not be necessary however to have the matter remitted for a reconsideration of penalty as the court has found that the Appellant was properly charged and convicted on the remaining charges. Both charges as contended by the Respondent are both serious as to warrant the ultimate penalty of Discharge from service.

In the result it is ordered as follows;

1. The appeal succeeds in a limited respect in aspect of ground number 3.


2. The determination by the Disciplinary Committee is accordingly set aside and substituted with the following;

   (i) The charge under paragraph 13(d) is quashed from the proceedings.

   (ii) The member is found guilty of breach of paragraphs 4 and 22 of the First Schedule (section 2) of the Health Service Regulations, 2006.

   (iii) The penalty of discharge from employment with immediate effect is imposed.”
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