Lazarus Sengu v Ministry of Education, Sport and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENTNO.LC/H/240/2013
HARARE, 10 JUNE 2013
CASE NO. LC/H/740/2012
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENTNO.LC/H/240/2013

HARARE, 10 JUNE 2013				        CASE NO. LC/H/740/2012

In the matter between

LAZARUS SENGU				-		Appellant

And

MINISTRY OF EDUCATION,		-		Respondent

SPORT AND CULTURE

Before The Honourable B.T. Chivizhe: President

Appellant 		-	In Person

For Respondent	-	Ms R. Hove – Legal Practitioner

Civil Division – Attorney General’s Office

CHIVIZHE, B.T.:

The Appellant was employed by the Respondent as a Senior School Teacher.  On the 2nd of March, 2009 he was suspended on allegations of having an act of misconduct viz paragraph 4 “Improper threatening and discourteous behavior including sexual harassment during course of duty.”  The allegations were that he had requested a Sandra Maranike, a Form 6 student at the school to carry commerce exercise books and accompany him to his house.  When they got to the house he allegedly detained Sandra by locking the dining room door and pocketing the keys.  He had then dragged Sandra into his bedroom, pushed her onto the bed, pulled the skirt upwards and lay on top of her against her will.  The Appellant allegedly released her after detaining her for some time.  The Appellant was by virtue of Section 49 (2) of the Regulations suspended on half his gross salary for up to three months.

The Appellant was reinstated on the 1st of July, 2009 upon cancellation of the three month period of suspension by virtue of Section 49 3 (b) (ii) of the Regulations.  He was arraigned before a Disciplinary Authority on 24 June, 2009.  From the records of proceedings before the disciplinary Committee the Committee recommendations were that it was difficult to find the member guilty for lack of evidence.  The committee however recommended the member to be transferred from the school with the district.  On 3 March, 2010 the Appellant was served with a determination letter authored by the Acting Secretary for Education, Sport, Art and Culture.  I find it convenient to quote the letter ex tenso.

03 March 2010

STAFF/CONFIDENTIAL

Mr Senga Lazarus

c/o The Provincial Education Director

Manicaland Province

Dear Mr L. Sengu

MISCONDUCT DETERMINATION AND PENALTYMR SENGU LAZARUS: EC NO. 0918991C: SENIOR TEACHER: CHAPWANYA HIGH SCHOOL: DEPT/STN – 3220: BUHERA DUSTRICT: MANICALAND PROVINCE

I refer to the charge of misconduct preferred on you on 2 April, 2009, which you did not respond to and subsequent hearing which took place and you attended on 24 June, 2009.

I considered your misconduct case and acting in terms of Section 46 (1) (b) of the Public Service Regulations, 2000, as amended I found you guilty of misconduct on the allegations that your behavior towards Sandra Mararike a Form Six pupil, was unbecoming and indecorous in that on 30 March 2009 you asked her to carry Commerce exercise books and accompany you to your home.  You detained Sandra in your house, locked your dining room door and pocketed the keys to the door.  You further dragged Sandra into your bedroom pulled her skirt up and laid on top of her.  I noted that Sandra Mararike reported the incident to her best friend Caroline Manyonda a few minutes after she left your house.

In terms of Section 46(3) (a) of the same regulations as read with Section 50(1), (a) of the already mentioned regulations, I direct that you be and are hereby

Fined an amount of US$150 which amount shall be recovered from your salary by two equal deductions.

Reprimanded.  Be warned that any further acts of misconduct by you may result in a harsher penalty being imposed on you.

With reference to the period you were on suspension from duty that is from 1 April 2009 to 30 June 2009, you are granted vacation leave without pay as directed in the Public Service Commission’s circular No. 2 of 2001, under reference C/216 dated 16 January 2001.

Furthermore, as directed by the Public Service Commission in circular No. 15 of 2003 referenced C/216/315 and dated 12 November 2003 from its Secretary, you are not entitled to the payment of any transport allowance for the duration of your suspension as you were not reporting for duty.

If you are aggrieved by the above determination or penalty, you may in terms of Section 51 (1) of the already said regulations, within twenty-one days of your receipt of this notification

either

appeal against the determination or penalty to the Labour Court

or

request the Public Service Commission in writing through the Disciplinary Authority, to review the determination or penalty.

However, in term of Section 51 (4) of the same regulations alluded to herein and Section 26 (1) (a) of the Public Service Act, 1995, both statutes as amended , a request for review or the noting of an appeal as advised above, shall not have the effect of suspending the above determination and penalties.

Please acknowledge receipt of this letter on the attached slip and return it to the Secretary for Education, Sport, Arts and Culture through the Office of the Provincial Education Director

Yours faithfully

The Appellant thereafter paid the fine to Respondent pursuant to the order through two equal deductions from his salary.  On the 6th July 2010 however the Respondent through another letter authored by the Acting Secretary then revisited the matter and imposed a dismissal penalty.  The letter is the same in content to the letter of 3 March, 2010 except in regards the penalty.  In regards penalty of discharge from the service with effect from 19 August, 2010 was imposed.

Upon realising that it had issued two confusing determinations the Respondent sought to correct the anomaly.  It consequently issued yet a third letter.  Undated the letter is authored by the Principal Education Director, Manicaland and addressed to Appellant.  I find it convenient again to quote ex tenso the contents of the letter.

RE:	TWO CONFLICTING MISCONDUCT DETERMINATION: MR LAZARUS SENGU; E.C. NO. 0918991C; SENIOR TEACHER CHAPWANYA HIGH BUHERA.

Reference is made to your minute dated 1 March 2012.

After realising the confusion the two conflicting misconduct determination on the same case, an amended misconduct determination was written on 24 January, 2012.  This one effectively cancelled the misconduct determinations dated 3 March, 2010 and 6 July, 2010.  This was done in respect of the Commission’s minute dated 5 December, 2011.  This means both misconduct determinations and penalties have been cancelled and replaced by the one attached to this letter which is dated 24 January, 2012.

On the issue of your letter of response.  It is unfortunate that the typing error was not detected.  It was supposed to read “your undated letter of response” not “you did not respond” once more we apologise for the error.  I have attached a copy of your response which was considered before reaching the verdict.

Find attached the correct misconduct determination which replaces the two conflicting ones.

The letter clearly referred to an attachment being the amended misconduct determination handed down on 24 January, 2012.  That determination clearly cancelled the two previous determinations dated 3 March, 2010 and 6 July, 2010 and consequent penalties.  There is in the body of the letter mention of the Commission’s minute dated 5 December, 2011 but the Commission minute does not form part of the record.  The determination itself dated 24 January, 2012 is similar in content to the determination handed down on 6 July 2010 save for penalty.  The penalty has been substituted with discharge from service with effect from 31 January, 2012.  The period from 19 august 2010 to 30 June, 2011 is to be treated as non-pensionable since Appellant was not reporting for duty.

Aggrieved by this determination the Appellant then lodged an appeal with the Labour Court.  The appeal has been noted on the following grounds,

On 3 March 2010 a determination fined me US$150 and a reprimand and I paid the fine.

On 6 July 2010 another determination on same case discharges me.

6 September 2012 another determination I has to stand.

The Respondent in response to the appeal has submitted that the member is seeking to have the court reverse the last discharge determination on the basis that the matter took three and half years to finalise; although it is admitted the matter took long the Disciplinary Authority relied on written witness statements which the member did not challenge; the member has also not challenged the guilty verdict.  It was Respondent’s further submission that the Respondent had zero tolerance on all forms of child abuse and the only penalty appropriate in the circumstances was discharge from the service.

The issues before the court in this appeal are;

Whether the Respondent erred in law when it issued two conflicting determinations based on the same facts thus by doing punishing Appellant twice.

Whether the discharge from service had in the circumstances been conducted procedurally and in accordance with the law.

In a bid to resolve the first issue the court examined the provisions of Public Service Regulations Statutory Instrument 1 of 2000 for the procedures to be followed when a member is facing misconduct charges.  It is clear that by virtue of Section 45 the member is arraigned before a Disciplinary Committee.  At the conclusion of the hearing the Chairman of the Committee shall submit to the Disciplinary Authority [Section 45 (6) (a)] a notification in writing of its findings and recommendations including recommendation as to penalty if it finds member guilty of misconduct.  The Disciplinary Authority on receiving documents may either refer back for further investigation or hearing or proceed to determine whether or not the member is guilty.  Where the Disciplinary Authority determines that member is not guilty it shall inform member.  Where however, the member is guilty the Disciplinary Authority shall proceed to determine the penalty imposed and notify the Commission [Section 46 (3) (b) (ii)]; By virtue of Section 46 (4) the Disciplinary Authority can return a conviction on a charge other than the original charge depending on the facts.

It is clear, in casu that the Appellant was arraigned before a Disciplinary Committee.  That Committee did not find him guilty on the charge.  When the matter was then referred to the Disciplinary Authority that body found the Appellant guilty on the same facts.  The Disciplinary Authority then imposed penalty of a fine in the amount of US$150 which was to be recovered in two equal deductions.  The appellant was also reprimanded.  The Appellant consequently paid the fine.

The same Disciplinary Authority on 6th July 2010 then in an apparent u-turn then imposed a penalty of discharge from Service with effect from 19 August, 2010.  According to Respondent counsel there had been no second hearing of the matter.  Instead allegations are made that additional evidence had been received by the Respondent after the Disciplinary Hearing on 24 July 2009.

The Public Service Regulations, Statutory Instrument 1 of 2000 clearly do not provide for two hearings before the Disciplinary Authority.  The Regulations also do not grant the power to the Disciplinary Authority, to, without convening a second hearing reconsider penalty and impose a more severe penalty to its original penalty.  The Disciplinary Authority clearly has no right to appeal its own decision.  The right to appeal is however, given to the employee member in Section 51 (1) a member can appeal to the Labour Court or seek a review before the Commission.  It is very clear that in the absence of provisions granting the Disciplinary Authority the power to substitute its own penalty Respondent treated Appellant unfairly in the circumstances.  Appellant had already been punished by the original penalty imposed of a fine and had in fact paid the fine.  The Disciplinary Authority then purported to substitute the penalty with a more severe penalty without even informing the Appellant the basis of that decision.  The allegation is made of additional written evidence received after disciplinary proceedings.  It is not clear from Respondent’s submissions what additional evidence was received.  The Disciplinary Authority clearly acted unlawfully by determining the issue without asking Appellant to make representations on the written evidence.

In the event that I am wrong in taking the above approach the principle is also established that the employer having made a decision in the facts before him becomes functus officio.  An official cannot thereafter make another decision which affects or abolishes rights which his previous act has already created.  See Delta Operations Limited vs Mpepula S-60-04.

In my view the principle applies with equal force to the facts of this case.  The Disciplinary Authority had imposed a penalty of a fine and that penalty having been served it was not open to Disciplinary Authority to seek to revoke that penalty and substitute a more severe penalty.  The purported dismissal of 6 July 2010 was clearly unlawful.  It was a complete nullity.  It follows that any subsequent proceedings were of no force or effect.  This essentially includes the proceedings and determination of 24 July, 2012.

There was also reference to a Commission minute which did not form part of the record.  The Respondent’s legal practitioner failed to provide minute even after being requested by the Court.  Even if the Commission Minute dated 5/11 had formed part of the record it would in my view also suffer the same fate on the basis that it followed on a nullity i.e. the dismissal letter of 6 July, 2010

In the circumstances it is ordered as follows;

The determination letter issued by the Respondent Disciplinary Authority dated 6 July, 2010, being a nullity, be and is hereby quashed.

The Respondent is directed to reinstate the Appellant to his position without any loss of salary and benefits.

In the event that reinstatement is no longer tenable the Respondent shall pay Appellant damages for loss of employment in an agreed amount, failing which either party may apply to this court for quantification of damages.