Learnmore Chigwengwendere v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 11 SEPTEMBER, 2024 & 10
JUDGMENT NO. LC/H/43/25 CASE NO. LC/H/796/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 11 SEPTEMBER, 2024 & 10

FEBRUARY 2025

LEARNMORE CHIGWENGWENDERE

Versus

HEALTH SERVICE COMMISSION

Before the Honourable Kudya J;

JUDGMENT NO. LC/H/43/25 CASE NO. LC/H/796/24

APPELLANT

RESPONDENT

For the Appellant	- In person

For the Respondent	- A. Kadungure, Civil Division

KUDYA J:

This is an appeal against the decision of the Health Service Commission where it upheld the appellant employee’s guilty verdict and dismissal penalty meted out by the disciplinary authority.

Facts of the matter are that appellant who was a Pharmacy Technician stationed at Marondera Provincial Hospital was brought before a disciplinary committee facing allegations of theft as defined by First Schedule Section 2(9) of the Health Services Regulations Statutory Instrument

117 of 2006. He pleaded guilty to the charges and was dismissed from employment. He unsuccessfully appealed to the commission. He is now before this court seeking to have the dismissal penalty set aside and substituted with a warning or fine or that he be reinstated or be paid damages. His appeal grounds are summarised as such: -

The Commission erred by not spelling out on the determination letter which misconduct appellant was convicted of.

Commission erred by not considering appellant’s mitigation resulting in a penalty that induces a sense of shock.

No weight was given to the fact that appellant and his family use the tablets that he allegedly stole. Medical records were tendered to support the position.

Appellant’s first offender status was not given due weight. He did not waste the court’s time. He admitted not following proper procedure to procure the medicine. In the result he prayed that the appeal succeeds, that the Commission and disciplinary authority decisions be set aside and be substituted with a warning or a fine. He prayed also that if reinstatement is no longer viable, he be paid damages in lieu of reinstatement.

In response to the appeal the commission maintained the following: -

There is no merit in the argument about not spelling out what appellant was convicted of. The Commission concurred with the disciplinary authority decision so the decision is as set out by the disciplinary committee.

Appellant was convicted of theft which is a severe offence. Penalty was employer’s discretion. There is no justification to interfere with the penalty.

Appellant’s use of the tablets with his family does not advance his case. The offence was serious so the penalty was appropriate.

Appellant was found guilty of theft so dismissal was appropriate. There is no basis to interfere with the discretion that was used. In the result the Commission prayed that the appeal lacking in merit be dismissed with costs.

At the onset of the appeal hearing the appellant asked why the conviction and penalty meted on him on prior theft charges was considered in the case at hand if regard is had to the fact that he was eventually acquitted and reinstated on appeal. The response from the employer’s representative was that he did not follow through the final fate of the Sadza Hospital matter but hastened to mention that its consideration was only to state that it was not the appellant’s first

brush with the law on such a case. This issue having been put to rest the court went on to determine the matter as presented before it.

It is settled that trier of fact decision cannot be lightly interfered with. See:

Nyahondo v Hokonya and Others 1997(2) ZLR 457 Barros v Chimpondah 1999(1) ZLR58(S) and Hama v NRZ 1996(1) ZLR 664

Stemming from principles set out in the above quoted cases the appeal in the instant matter is disposed of as below: -

Ground 1

A reading of the proceedings leading to the appellant’s dismissal state clearly that, after the charge and its constituents were put to the appellant, he pleaded guilty. Consequently, the accused’s guilt was disposed of on the basis of his guilty plea. The disciplinary authority and by extension the Commission endorsed the plea and found the appellant guilty as charged. It was therefore unnecessary to pick on each individual phrase in the charge to spell out the verdict. Suffice to say that as pertaining facts which he pleaded guilty to the appellant was cognizant of what he was admitting to. It was therefore unnecessary to nit-pick on each individual phrase in the charge to spell out the verdict level. The ground is without foundation so it should fail.

Ground 2

A reading of the record before the court shows that mitigation was indeed considered but it could not sadly dislodge the fact that the offence was serious and went to the root of appellant’s job so the dismissal penalty had to be concurred with. It is settled that when penalty goes to the root of the contract dismissal may be found to be appropriate. See Circle Cement vs Nyawasha SC10-03. The ground being without merit should fail.

Ground 3

It is granted that appellant wanted to use the medicine for self and family as set out in records which he tendered in the hearing. That he was unwell or that his family also benefited from

the stolen or irregularly procured medicine could not be a foundation for asking this court to interfere with the penalty that was meted out. The law is settled that only in cases of outrage does the court come in where it concludes that the discretion has been abused. See Barros v Chimpondah (Supra). It is clear from facts of this case that penalty was in step with what appellant had done. There is thus no basis for interference by this court. The ground should therefore fail.

Ground 4

Sentiments expressed in ground 3 also apply to this ground with the same force. The fact that appellant pleaded guilty and did not waste the tribunal handling the matter’s time does not detract from the fact that the penalizing discretion was used properly. No good case for vacating the same has been made out by appellant. The ground is without merit so should fail.

In the ultimate all appeal grounds being without merit should be dismissed.

IT IS ORDERED THAT;

Appeal being without merit in its entirety it be and is hereby dismissed with costs on the ordinary scale.