Ishmael Paraje v Rural Electrification Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/506/2016
HARARE, 22 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/506/2016

HARARE, 22 JUNE 2016			          	       CASE NO. LC/H/103/16

AND 9 SEPTEMBER 2016

In the matter between:-

ISHMAEL PARAJE								Appellant

And

RURAL ELECTRIFICATION AGENCY					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Ms C Mapanda (Trade Unionist)

For Respondent		Mr M. Gapara (Executive)

MAXWELL, J

This is an appeal against the decision of the Appeals Committee issued on 20 April 2015.  Appellant was employed by respondent as a messenger based at Bindura.  He was suspended from duty following allegations of converting or attempting to convert respondent’s monies to his own use.  He was arraigned before a Disciplinary Committee and was convicted.  After conviction a dismissal penalty was imposed.  Appellant was aggrieved and lodged an internal appeal which was not successful.  Appellant thereafter approached this court on the following grounds,

The Appeals Committee grossly erred and misdirected itself by confirming the determination and penalty imposed on the appellant in respect of the first charge considering that he did not convert the amount of $160.00 to his own use rather the said amount was returned back to the authority on the same day after the appellant failed to pay for the electricity bill.

The Appeal Committee grossly erred in upholding the decision of the disciplinary committee in relation to the third charge of taking or converting the amount of $405.00 to his own use in that there was proof that he converted the said amount to his own use (sic) and the appellant had already reimbursed to (sic) the money to the company.  There was no loss suffered by the respondent.

The findings of the disciplinary and grievance committee as confirmed by appeals committee were grossly unreasonable and irrational in that the facts of the matter as presented did not prove any case against the appellant considering that the respondent failed to furnish the appellant with the cash request register which he requested during the hearing which could have helped him to defend his case.

The Appeals Committee erred in failing to realize that the dismissal penalty which was meted was gross in its defiance of logic that no reasonable committee sitting to consider the facts would refrain from interfering with the penalty.  In terms of section 12B (4) of the Labour Act, the appeals committee was obliged to weigh the fairness of the appellant’s dismissal against any mitigation facts availing but it refrained from exercising its mandatory duty in concluding that the dismissal was fair.

Appellant prayed for the granting of the appeal, the setting aside of the decision of the appeals committee, the setting aside of the penalty of dismissal and his reinstatement without loss of salary and benefits.  In the alternative, appellant prayed for damages in lieu of reinstatement.

In response, respondent contended that the appeals committee did not err.  Respondent stated that appellant did not pay the electricity bill and neither did he return the $160.00.  Respondent also stated that appellant collected $405.00 on 8 November 2013 and did not pay the electricity bill as instructed.  Instead he reimbursed the money in two instalments on 14 April 2014 and 23 May 2014.  With respect to the cash request register, respondent stated that appellant had not requested for the document prior to the hearing and nothing precluded appellant from leading evidence orally from witnesses on the contents of the register. On the penalty, respondent stated that it properly exercised its discretion as appellant’s moral blameworthiness is aggravated by the fact that he was in a position of trust.  By displaying dishonesty appellant betrayed the trust bestowed upon him justifying a penalty of dismissal.  Respondent prayed for the dismissal of the appeal.

Ground of Appeal One

Appellant alleges that he returned the money the same day.  He tendered no receipt as proof of the return.  He however has receipts for the $405.00 which he reimbursed in instalments.  He claims that the cash requests form has evidence that the money was returned.  It seems to me that the appellant’s position is an afterthought.  During the investigations in 2014 appellant did not state that he returned the money the following day.  On 20/11/14 he wrote

“… I am appelling (sic) your office to give me more time to come up with a detailed report with evidence of payment of $160.00 …”

The disciplinary committee in its findings stated that the respondent did not submit evidence to substantiate his claims that he returned the money to the Provincial Accountant and that there is high probability that he converted it to personal use.  The Appeals Committee cannot be faulted for confirming the disciplinary committee’s findings.  At the appeal hearing  it was stated that the promised detailed report was never submitted.  The failure to submit the report after he had promised to do so is interpreted against the appellant.  I find that on a balance of probabilities appellant converted the $160.00 to his own use.  The Appeals Committee’s decision can not be faulted.

Ground of Appeal Two

Appellant argues that there is no proof that he converted $405.00 to his own use and that there was no loss to respondent as he reimbursed the money.  Respondent stated that appellant did not reimburse the money on the day he received it.  This is borne out by the record of proceedings.  The money was received on 8 November 2013 but was reimbursed in instalments on 14 April 2014 and 23 May 2014.  The reimbursement does not negate the conversion to own use.  Appellant seems to intimate that there is a possibility that the money was stolen or lost.  There is no indication that appellant reported this possibility to his superiors.  He was silent until the fact that the electricity bill he was supposed to have paid was not paid was discovered on audit, almost six months later.  In my view the Appeals Committee cannot be faulted for confirming his guilt.

Appellant’s representative seems to be mistaken that since there was reimbursement conviction should not have followed.  If anything, the reimbursement is proof that the money was not used for its intended purpose.  I therefore find no merit in the second ground of appeal.

Ground of Appeal Three

Appellant criticises the Appeals Committee for confirming the findings of the disciplinary committee in the absence of the cash request register requested during the hearing.  As stated for respondent nothing precluded appellant from leading oral evidence on the contents of the cash request register.  In any event there was proof in the form of the appellant’s signature in the Cash Disbursement Register. Once the appellant’s signature appeared in the disbursement register there is need for proof that the amount disbursed was returned.  In the absence of such proof the Appeals Committee cannot be faulted for confirming his conviction.  I find no merit in the third ground of appeal.

Ground of Appeal Four

Appellant criticises the dismissal penalty meted on him and submitted that S12B (4) of the Labour Act [Chapter 28:01] enjoined the Appeals Committee to weigh the fairness of dismissal against any mitigating factors.  It is trite that the question of penalty appropriate in a matter is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of the particular case dictate otherwise.  See Malimanji v    2001 (2) ZLR 77.  Appellant has not pointed out any error in the exercise of the employer’s discretion.  In any event it was stated that once an employer has taken a serious view of the act of misconduct committed by the employee and dismissed him from employment, the question of penalty less severe than dismissal being available for consideration does not arise unless it is established that the employer acted unreasonably in having a serious view of the offence committed by the employee.  See Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03. Betrayal of trust goes to the root of the contract of employment.  The finding of the Appeals Committee cannot be faulted.

Resultantly there is no merit in this appeal.  The following order is therefore appropriate;

The appeal be and is hereby dismissed for lack of merit.