Irene Katsvere v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/63/16
HELD AT HARARE 27TH JANUARY 2016
CASE NO
JUDGMENT NO LC/H/63/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/63/16

HELD AT HARARE  27TH JANUARY 2016			CASE NO LC/H/APP/1088/15

& 19TH FEBRUARY 2016

In the matter between:

IRENE KATSVERE					Applicant

And

CITY OF HARARE					Respondent

Before The Honourable E Muchawa, Judge

For Applicant			Mrs L F Mageza (Legal practitioner)

For Respondent		Mr C Kwaramba (Legal Practitioner)

MUCHAWA, J:

This is an application for leave to appeal to the Supreme Court.  It follows a judgment in which this court had to determine whether the applicant had been properly found guilty of fraud and the propriety of a dismissal penalty imposed on her following disciplinary proceedings.

My findings were that the facts of the matter alleged and proved, supported the requirement of fraud as spelt out in the relevant employment code, in the Collective Bargaining Agreement:  Harare Municipal Undertaking,  S.I. 171 of 2010.  I also found the dismissal penalty to be appropriate in the circumstances.

The applicant is respondent’s former employee who, at the relevant time was employed as a senior clerical officer.  Her duties involved receipting of money on behalf of the appellant.  It was alleged that on 30 September 2011 and 4 October 2011, she had defrauded the appellant of $500.00 through under receipting proceeds from the sale of commuter omnibus rank discs.  She was alleged to have falsified information on ten omnibus rank disk receipt stubs that remain for audit purposes.  Such a disc costs $100.00 and such amount is reflected on the face value of the disc.  The respondent is however alleged to have reflected having issued out a taxi rank disc valued at $50.00 on the receipt stub for ten commuter omnibus, thus pocketing the difference amounting to $500.00.

The applicant has four proposed grounds of appeal which I reproduce below;

The court a quo  grossly misdirected itself by making a conclusion that under receipting was a result of fraud yet the evidence in the record indicates that under receipting was a result of failure to follow laid down procedures.

The court a quo erred in upholding the decision of the Disciplinary Committee which found the appellant guilty of fraud yet the evidence led during the hearing indicated that there was no elements (sic) of dishonesty/deception in the way the appellant acted which is a key element in proving fraud.  The respondent’s allegation that the appellant would receipt $50.00 on employer’s copy and indicate $100.00 on the client’s copy hence pocketing the  difference was  never proved.

The court a quo erred in upholding the decision of the Disciplinary Committee on the basis of the definition of fraud in the Code of Conduct when regard is had to the fact that fraud is a misconduct of a criminal nature, hence the intention to deceive in order to gain was never proved.

The court a quo  erred in confirming the penalty of dismissal without seriously taking into account the strong mitigatory factors which warranted a lesser penalty.

The application is opposed.

In my assessment of this application, I am guided by the cases of Pichanick N O v

Paterson 1993 (2) ZLR 163 and Chipangura v EMA SC 35-2012, with the paramount consideration being whether there are any prospects of success on appeal.  The grounds of appeal proposed deal essentially with the two issues which detained me as a court a quo, being the propriety of the guilty verdict in relation to the charge of fraud and the propriety of the penalty of dismissal.

The propriety of the guilty verdict for the charge of fraud

Though the applicant admits that there was under-receipting by her, she contends that this is not sufficient to prove that fraud was committed, but that it merely proved that she did not follow laid down procedures.

It is further argued that the evidence led at the hearing did not prove an element of dishonesty in her conduct hence fraud was not proved.

Lastly, the applicant argues that the court should not have relied on the definition of fraud in the relevant Code of Conduct, but that in criminal matters where an intention to deceive and gain there from is present.

On the contrary, the respondent argues that the applicant has no prospects of success as the conduct of the applicant created a sufficient impression that fraud was committed.

I was urged to consider the motive of the applicant in breaching laid down procedures which she was well aware of having worked for the respondent for more than twenty five years.  It is said to be unbelievable that the applicant would proceed to receipt amounts due without the basic verification required of having sight of the vehicle registration books so as to ascertain the details of the vehicles in question.  Her behaviour of relying on the clients’ word of mouth, well knowing the attendant risks, is said to point to a well calculated move to defraud.

It is further argued that the fact that all the cashiers in the department were involved in this scam leading to a prejudice amounting to $6 800.00 points to a well orchestrated plan to defraud.

I agree that the Supreme Court is unlikely to conclude that the facts in this matter do not point to fraud as applicant’s admission that she did not follow laid down procedures, if balanced against the conclusion that she intended to defraud, does not seem to be the more plausible conclusion.  The circumstances pointed out above make the offence of fraud, the most credible amongst several conceivable ones.  (See Ebrahim v Pittman N O 1995 (1) ZLR 176 (H) AT 184 E – 185 F.

As to the contention that this court should have relied on the definition of fraud in criminal law, rather than, that found in the Code of Conduct, I was not favoured with a legal basis for this.

The disciplinary matter of the applicant was correctly heard in terms of Part VI of the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010.    Section 82 of the Labour Act [Chapter 28:01] provides that if a registered Collective Bargaining Agreement provides a procedure for the conciliation and arbitration of any category of dispute, that procedures is the exclusive procedure  for the determination of disputes within that category.

If the applicant’s argument relates to the standard of proof, it has already been decisively settled in ZESA v Dera 1998 (1) ZLR 500 (SC) that in a civil case, the standard of proof is never anything other than proof on a balance of probabilities.

In the circumstances, I find that the applicant does not have any prospects of success on this issues.

Propriety of the Dismissal Penalty

The applicant argues that the strong mitigatory factors were not taken into account in meting out the penalty.  These included that she was a first offender, who had served respondent for 29 years, that she was advanced in age and was close to retirement.

The long line of cases from the Supreme Court which have upheld dismissal penalties, in cases where elements of dishonesty are present, make it unlikely that the Supreme Court will change its stance.  Rather, the applicant’s long service will work against her.  See Standard Chartered Bank Zimbabwe Ltd v Chapuka 2005 (10 ZLR 52 (S), Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 201 (S), Innscor Africa (Pvt) Ltd v Chimoto SC 6/2012, Circle Cement (Pvt) Ltd v Chipo Nyawasha S-60-03 & Toyota Zimbabwe v Posi SC 55/07.

In the circumstances, the application for leave to appeal is dismissed for lack of merit.

Mageza & Nyamwanza, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners