Godfrey Matongo v Ministry of Education

IN THE LABOUR COURT OF ZIMBABWE          JUDGMENT NO. LC/MC/19/2013
HELD AT MUTARE ON 29th MAY 2013             CASE NO. LC/MC/64/12



In the matter between



GODFREY MATONGO                             Appellant


And
MINISTRY OF EDUCATION                       Respondent


For Appellant     :   In person
For Respondent :      M.Chimombe (Legal Officer Civil Division)




KUDYA .L


      This is an appeal against the penalty which was imposed on the Appellant

by the Respondent’s Disciplinary Authority and confirmed by the Public Service

Commission.




      The facts of the case are that: The Appellant who was in the Respondent’s

employ as a Deputy Headmaster was charged with contravening            section

44(2(a) of the Public Service Regulations 2000 as read with paragraphs 2, 3

and 8 of the First schedule ( Section 2) of these regulations.




      It was alleged that in 2005, he authorized payment to one Chitaka for

unapproved services and to Muradzikwa for cement which he had not delivered

.He was also said to have failed to ensure that all the payments had relevant
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supporting documents. Further to that, he was said to have failed to account for

money which was meant to buy chalk. Finally, it was said that he failed to advise

the S.D.C Finance Committee before it engaged the services of a school security

guard.

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       A Disciplinary Committee sat on the 26th October 2011 to deliberate on

the charges. It found that by his own admissions the Appellant had committed

the alleged infractions. It therefore, recommended that he be dismissed from

the service .On the same date the Disciplinary Authority found him guilty of all

the allegations except the one relating to the security guard where he was

acquitted .Consequently he was discharged from the service .




       Aggrieved by his dismissal he made an application for review with the

Public Service Commission. The Commission in its minute dated 5 October 2012

confirmed the determination of guilty and the penalty of discharge which were

meted out by the Disciplinary Authority. Dissatisfied by this confirmation

Appellant has now appealed to this court. His appeal is however mainly against

the penalty which was meted out in his case




       The grounds of appeal upon which he relies are that: if the Respondent

had taken into account the following mitigatory features it would have been

persuaded to mete out a less drastic penalty than discharge which is a penalty

of last resort.




The factors in question are the following:


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1. Appellant had never committed any act of misconduct since he joined the

service on 1 January 1986.

2. Appellant is a sole breadwinner with 3 minor children who look up to him for

their upkeep.

3. Appellant endured as a deputy headmaster when the country went through

economic hardships, did not abandon his service then.

4. The payments which he did had the blessings of the Finance Committee

which authorized the same.

                                              JUDGMENT NO. LC/MC/19/2013

5. The auditors’ minutes which demonstrated that the Finance Committee

authorized the payments were not availed before the hearing despite request.

6. There was authorization from the Finance Committee and this was all done as

extraordinary measures to arrest the inflation which was rampant then.

He therefore prays that the discharge penalty be set aside and substituted with

a less severe penalty in the light of the above mitigatory features.




       The Respondent on the other hand maintains that the penalty was in

order. Its basic argument is that the mitigatory features which the Appellant is

now bringing before the court were not placed before it at the time of the

hearing hence they could not consider what was not before them.




       The law is clear that the appeal court can only interfere with the exercise

of the discretion by the lower tribunal if there is evidence that such exercise was

irrational and prejudiced the Appellant See AG vs Howman 1988(2)ZLR 402

(SC)

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       It is clear from the above proposition that the decision which this court

has to make is whether or not the Respondent’s Disciplinary Committee failed

to exercise its discretion properly on sentencing the Appellant to the extent that

this court can interfere by substituting it with its own.




      The record of the Disciplinary Committee shows clearly that when the

Appellant was invited to give his mitigation , all that he told the Committee was

that he was remorseful and if given another opportunity he would avoid the

same mistakes.



                                               JUDGMENT NO. LC/MC/19/2013

      It is not clear from the record whether when the Appellant was invited to

mitigate it was clearly explained to him as to what he was expected to

submit .The court also observed that the record shows that both parties were

not legally represented .In that light, it is possible that their level of

appreciation of what was pertinent as mitigation could have eluded them.




      In any event even, if it can be said that the Appellant did not spell out the

mitigatory features which he has now placed before the court, the record of

proceedings is laden with evidence that all these aspects came out of the

hearing, they are not new issues which the Respondent can be said to be

hearing for the first time.




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      It is therefore the court’s considered view that if the Respondent had

applied its mind to these mitigatory factors it would have come up with a less

severe penalty than the one which it meted out.




      As the mitigatory features of this case show that this was a case with

extraordinary facts where the Appellant was driven to the commission of the

offence by the economic conditions prevalent then. Even the Respondent’s

counsel did admit when he made his oral submissions before the court that, it

is accepted that the Appellant acted with the blessings of the Finance

Committee and that he was under pressure to act as he did since the funds in

question continuously lost value by the day . It is this extraordinary set up which

in this court’s view should have exercised the Committee’s mind to mete out a

more corrective than punitive penalty.




      In the case of NEI Zimbabwe Pvt Ltd vs Makuzva LC/ H/248/04 it was

stated that, even though the most drastic penalty of dismissal is provided for in

a case it does not necessarily follow that the employer has to just dogmatically

invoke

                                                JUDGMENT NO. LC/MC/19/2013

it without clear justification. A reading of the whole record demonstrates that

the Committee and the reviewing body fell into the error of just taking the case

on face value without interrogating the other pertinent and peculiar features

pertaining to it. For that reason the court is satisfied that this is case which calls

for a departure from the general rule of not interfering with the exercise of

discretion by a lower tribunal.



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        The court is therefore satisfied that the decision to discharge the

Appellant without a careful consideration of all the mitigatory features which

were quite apparent on the record is a serious misdirection which calls for this

court’s interference. The court is persuaded that the penalty of demotion would

have ben appropriate in the circumstances.




IT IS THEREFORE ORDERED AS FOLLOWS

    1. That the appeal being with merit be and is hereby upheld

    2. The decision of the Disciplinary Authority is set aside and substituted by

    and order confirming the Appellant’s guilt but in place of the discharge

    penalty the Appellant is reinstated but in the position of ordinary teacher

    from the date of his suspension. If the Respondent is however of the view

    that reinstatement is no longer possible it is ordered to pay Appellant

    damages in place of reinstatement from the date of his suspension. The

    parties are to agree on the quantum of the reinstatement, failing which

    either party can approach this court for quantification.

    3. No order as to costs




L .Kudya ------------------------

President- Labour Court




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