Liberty Muusha v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 MAY, 2023
JUDGMENT NO. LC/H/238/23
CASE NO. LC/H/1185/22
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 MAY, 2023

AND 11 AUGUST, 2023

In the matter between

JUDGMENT NO. LC/H/238/23 CASE NO. LC/H/1185/22

LIBERTY MUUSHA	Appellant

Versus

HEALTH SERVICE BOARD	Respondent

Before The Honourable L. Hove, Judge:

For Appellant		:   Masasire K For Respondent	: Mr. W. Matsika

HOVE J:

The appellant in Casu is appealing against the respondent’s decision to find him guilty of an act of misconduct and to discharge him from government service.

Background facts

The appellant was employed as a general hand by the respondent and was stationed at Marondera Provincial Hospital. The respondent charged him with an act of misconduct. It was alleged in a letter dated 18 July 2022 that he was being charged with an act of misconduct in terms of the Labour National code of Conduct Regulations Statutory Instrument 15/2006, Section 4 paragraph (d) which reads “theft or fraud”

The specific allegations were that on 2 July 2022, around 1500hrs. the appellant came to Marondera Provincial Hospital in a vehicle driven by one Dhakwa Munyaradzi. He proceeded to the construction site where he took some deformed reinforcement bars without authority. He was apprehended at the main gate and handed over to the police who took him in custody from 2 July 2022 to 4 July 2022. The appellant stated that he had been given the deformed bars by an employee of the construction company one Peter Muganhu. The operations manager of the construction company however advised that they had no one by the name Peter Muganhu in their employ.

Decision of the Disciplinary Authority

The appellant denied the allegations but was found guilty and discharged.

The appellant was aggrieved by the disciplinary authority’s decision and appealed against it to the appeals board which dismissed the appeal. Again, the appellant was aggrieved and noted this appeal to the Labour Court. The grounds of appeal are 4 and they are that;

The appeals officer erred and misdirected himself at law in upholding the decision of the disciplinary authority which found the appellant guilty and dismissed him from work when the disciplinary authority failed to give lessons for its decision.

The appeals officer erred and misdirected himself at law in concurring with the determination of the disciplinary authority which found him guilty and dismissed him for “theft or fraud” without determination which of the two offences the appellant was guilty of.

The appeals officer erred and misdirected himself at law in upholding a decision of the disciplinary authority which found him guilty when respondent was not the owner of the property in question.

The appeals officer erred in upholding the decision of the disciplinary authority which found the appellant guilty as charged when there was no evidence to support the offence.

Whether or not the appeals officer erred as alleged or at all

In argument, the appellant stated that failure to give reasons for a decision is an error and a misdirection. This is trite, see in this regard the case of National Foods limited v Mugadza SC 105/95. The appeals authority decided as follows;

“Please be advised that the appeals officer on 2 December 2022, after having carefully gone through the record of appeal and made deliberations, dismissed your appeal.

The appeal was dismissed for the reason that the appeals officer concurred with the decision by the

disciplinary authority. “

The grounds of appeal before the appeals authority include briefly that;

The disciplinary authority misdirected itself when it failed to give reasons for its determination.

The disciplinary authority failed to appreciate that the deformed bars did not belong to the respondent.

The appeals authority ought to have considered all the issues placed before it and make a decision on the issues raised before it. For instance, the issue that the tribunal aquo had failed to give reasons ought to have been considered and reasons given for the appeals officer’s decision on that and other grounds of appeal. The appeals officer could not have concurred with the disciplinary authority on this point since that point was never placed before the disciplinary authority. The appeals officer failed to apply its mind to the issues before it, had it applied its

mind, it would have realized that it could not concur with the disciplinary authority’s decision on

this point as no decision on that point had been made by the tribunal aquo. Failure to apply one’s mind to the issues before it is a misdirection at law. The Courts have repeatedly impeached adjudicating authorities for failure to give reasons for a decision. In S v Mapiye SC 214/88, the Court observed as follows;

“It is therefore not easy to ignore the possibility that the magistrate did not apply her mind at all to the case before her. Courts have repeatedly stated the need for judgments to be reasoned and for those reasons to be stated.”

The omission to consider and give reasons for finding the appellant guilty and dismissing him is an error. It is a gross irregularity. Appeals are argued and decided on the context of the record of the proceedings aquo. The reasons can thus not be stored in the minds of the Court aquo. An appeal Court will definitely need to see and consider those reason should the matter go on appeal as is the case in casu. This can obviously not be possible should the reasons remain in the Court aquo’s esteemed mind.

Further, and in any event, the appeals authority could not have dismissed the entire appeal on account of concurring with the disciplinary authority’s reasons for two reasons;

The issues before him differed with the issues that the disciplinary authority had to deal with. The disciplinary authority had to decide whether or not the claimant had proved its case and whether the appellant was guilty, whereas the appeals authority had different issues before it.

It had been alleged that no reasons had been given by the tribunal aquo. There were no reasons to concur with.

I have perused the decision of the disciplinary authority and It is clear that no reasons where given. After the calling of evidence, the disciplinary authority did not give reasons for its decision. The record shows that the disciplinary authority went straight into considering mitigation and aggravation before pronouncing its decision. This was a misdirection on the part of the disciplinary authority. Having given no reasons, it was a further misdirection on the part of the appeals authority to give, as its reasons for its own decision that it concurs with a decision with no reasons given. See in this regard the Mapiye case (supra)

Having found that there were no reasons given for the decision to find the appellant guilty, there is no need to consider the other grounds of appeal.

This court must consider the effect of this error on the whole appeal, whether by reason of this error, the appeal should succeed with costs and the appellant reinstated. This course would be to totally disregard the jurisprudence on this area of law.

It is now settled that labour disputes should not be settled on the basis of legal technicalities. In Dalyn Mine v Musa Banda SC 39/99, the court stated that it is undesirable to so settle labour disputes on the basis of legal technicalities. the Court should also not ignore these technicalities but have the technicalities put right.

The fact that the disciplinary authority failed to give reason does not touch on the merits of the dispute, that is, whether or not the appellant was guilty of theft or fraud. In that sense, it is technical. In the case of Air Zimbabwe D/L v Chiku Mensa and another SC 89/04, the Court stated that;

“a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings by another employee. He should escape such consequences because he is innocent.”

This is certainly not to suggest that the appellant in casu is guilty,(for it would be premature to decide that issue) but to merely underscore the need to deal with labour matters on the basis of their merits as opposed to deciding the matter on the basis that another employee failed to conduct the disciplinary proceedings.

In the result therefore, the legal position that procedural irregularities must be put right by remitting the matter to ensure that legal technicalities are put right must carry the day. It is accordingly ordered:

That the appeal be and is hereby allowed.

That the decision of the appeals authority be and is hereby set aside and substituted with the following

“The appeal succeeds and the matter be and is hereby remitted to the disciplinary committee for it to give reasons for its decision.”

There is no order as to costs.