Lickson Matare v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/6/2020
HARARE, 17 SEPTEMBER 2018
CASE NO. LC/H/6/2020
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IN THE LABOUR COURT OF ZIMBABWE        JUDGEMENT NO. LC/H/6/2020

HARARE, 17 SEPTEMBER 2018			     CASE NO. LC/H/572/15

AND 10 JANUARY 2020

In the matter between :-

LICKSON MATARE					Appellant

And

MINISTER OF PRIMARY AND SECONDARY 	1st Respondent

EDUCATION

And

CIVIL SERVICE COMMISSION				2nd Respondent

For Appellant		Mrs C. Mahlangu (Legal Practitioner)

For Respondent 		Ms T. S. Musangwa Law Officer (Civil Division)

CHIVIZHE, J:

This is an appeal against a decision of Respondent Disciplinary Authority handed down on 28th April 2015.

FACTUAL BACKGROUND

The Appellant was employed as Head of Chikukwa Primary School in Mutoko. On the 30th of May 2014 the 1st Respondent levelled a charge of misconduct in terms of section 44(2) as read with paragraph (2) (8) and 24 of the First Schedule (Section 2) of the Public Service Regulations, 2000 (thereafter referred to as the regulations).

The allegations behind the charge were that;

The Appellant as Head of Chikukwa Primary School had failed to account for $3 914.40 from February 2009 to September 2013 as per audit report carried out at the school from 23 September to 27 September 2013.

The Appellant had under mastered by $657,00 from February 2009 to September 2013.

The Appellant had used $3 508.00 without supporting documents and payment vouchers raised and the figures were entered in the cash book without any narration.

The Appellant was arraigned before a Disciplinary Committee on the 4th February 2015. He was represented by Mrs C. Mahlangu who also appeared in this matter. After a full hearing in which evidence was led from various witnesses the Disciplinary Committee found Appellant guilty and recommended a penalty of Discharge from service. On the 28th April 2014 the Disciplinary Authority acting in terms of section 46 (1) (b) as read with section 51 (1)a of the Public Service Regulations found Appellant guilty on all the charges. A penalty of Discharge from the Public Service with effect from after duty on 30th of May, 2015 was consequently imposed.

THIS APPEAL

Exercising his rights under the Regulations the Appellant noted the present appeal with this court. In his notice of appeal he has raised 5 Grounds as follows;

The Disciplinary Authority erred and seriously misdirected itself un finding the Appellant guilty for failure to account for US$3 914.40 when they ignored an unchallenged submission by the Appellant that the shortfall was a result of the irregularities in the Audit report and more specifically that;

Audit report not accurate as the Auditor treated BEAM funds as funds not banked when in fact they were direct deposits and these amounts naturally increased cash available at the school and hence created and or increased the shortfall.

Auditor/Audit report was misdirected on stating that noting was banked in April 2013 yet the Bank Statement indicates that US$585.00 was banked during that month.

The Disciplinary Authority erred and seriously misdirected itself when it made a finding that the Appellant failed to account for US$730.70 during the period January-December 2013, yet audit was done from 23rd September 2013 to 27th September 2013.

The Disciplinary Authority erred and seriously misdirected itself in making a finding that the Appellant under mastered by US$657.00 when they ignored the fact that it was a result of the action of the Clerk.

The Disciplinary Authority erred and seriously misdirected itself, a misdirection that amounts to a point of law in making a finding that the Appellant used US$3 508.00 without supporting documents and payment vouchers which is not correct.

ALTERNATIVELY

The Disciplinary Authority grossly erred and misdirected itself in dismissing the Appellant for failing to account for the money in question as the penalty was too severe in the circumstances.

PRAYER

WHEREFORE the Appellant humbly and respectfully prays for the Determination to be set aside as the dismissal was unlawful and unfair coupled with an order reinstating him to his position without loss of salary and benefits from the date of the unlawful dismissal and that if reinstatement is no longer tenable that he be awarded damages for loss of employment to be agreed by the parties and if parties fail to agree to be determined by this court.

ALTERNATIVELY

If the Court is of the view that the Appellant committed the offences in question, the Appellant humbly prays for the penalty of dismissal to be set aside and be replaced with a final written warning.

The Respondent shall pay costs of suit.

In his prayer the Appellant is seeking for the setting aside of his conviction and penalty of Discharge from service. In its place he seeks for reinstatement to his original position without loss of salary and benefits from the date of unlawful dismissal and in the event that reinstatement is no longer tenable he prays that he be awarded damages in lieu of reinstatement as agreed to by the parties, failing which, the damages can be assessed by this court.

The Appellant has also raised an the alternative prayer that should the court find that he was properly convicted on the charges levelled then the court should consider setting aside the penalty of Discharge from service and substitute it with a Final Written Warning.

The appeal is opposed by the Respondent. The Appellant is challenging four out of the five grounds of appeal his conviction on the basis of errors made in findings of facts made by the Disciplinary Committee. The first Respondent’s general submission in respect of all the grounds is that the Appellant was properly found guilty on the basis of evidence led before the Disciplinary Committee. In regards the penalty 1st Respondent submission is that the charge levelled against Appellant being a very serious charge the penalty of Discharge from service is commensurate with the acts of misconduct committed by Appellant. The 1st Respondent’s prayer is for dismissal of the appeal. The Respondent’s further submission is the issue of penalty in any event is the prerogative of the employer. The Appellant having been convicted of a very serious act of misconduct the employer deemed a Discharge from service to be an appropriate penalty. The court was urged to desist from interfering with the employer’s exercise of discretion in imposing a penalty of Discharge from service.

There are in my view two issues falling for determination;

Whether the findings of fact that Appellant was guilty of the acts of misconduct were correct.

Whether the penalty of Discharge from service was proper in the circumstances.

I turn to address the issues.

WHETHER THE FINDINGS OF FACT THAT APPELLANT WAS GUILTY OF THE ACT OF MISCONDUCT WERE CORRECT.

The question that this court has to consider is whether in the light of evidence and the circumstance of this case the findings of fact made by the Disciplinary Committee were unreasonable as to be outrageous in the defiance of logic (case authority). If the findings were unreasonable then would it warrant interference by this Court.

The Appellant was charged with essentially fraudulent conduct, the allegations ranged from a failure to account for moneys covering a certain period; under mastering of certain amount during period from February 2009 to September 2013; the last allegation was that of using state funds without supporting documents and payment vouchers. At the disciplinary hearing the Respondent led evidence from witnesses including one of the auditors who had unearthed the irregularities. Appellant was represented by Mrs C. Mahlangu who also appears in this case. His defence in regards to the first count was that there were irregularities in the audit findings for an example he alleged that report showed cash receipted from February 2009 to September 2013 as $53, 444.50 yet it went on to say total cash available at school was $56 156.50; he also alleged audit report showed money banked and cash withdrawn during a specific period exceeded money banked. He also sought to justify shortfall on the basis that some of the moneys were direct deposits into the bank yet the auditors treated this as cash not banked, e.t.c.

On the second allegation Appellant sought to argue that he was responsible for mastering but was not responsible for the moneys misappropriated by his junior clerk. Evidence was led from the Deputy Head whose evidence was to the effect the Appellant had slept on his responsibility to supervise the clerk who was under receipting and stealing money. The Appellant refused to cross-examine this witness.

On the third allegation the Appellant in his defence alleged that he had referred the outstanding vouchers to the auditors. He also had in his possession minutes in support of the expenditures made. He however admitted to having used funds without narration. He said words to the following effect;

“Members : We have moneys in the cash book but not without narration. I took the vouchers to the auditors in Marondera. They said they would not take some of the vouchers and other expenditure documents. We have minutes to support our expenditures. We used these minutes as evidence of our expenditures. Some of these moneys were not supported because they were used for sporting activities. We ended up using short receipts. One of the transporters was local and had no capacity to give us receipts. We used to go with the sports organiser, teachers and SDC members. We would document everything and I am explaining how we operated. I was working with the SDC through and through.”

He also clearly admitted to not using the cash analysis book properly when he said;

“Member: Yes, but we were not doing it properly. We did it but later stopped using the cash analysis’’

The Auditor was called in to give evidence. In his evidence he clearly showed how the shortfalls were arrived at. He also referred to documents presented to him by Appellant which were doctored to cover up Appellant’s shortcomings in failing to provide vouchers to support expenditures made. He also dismissed the suggestion by Appellant that he had minutes in support of expenditures as not in line with the Ministry Regulations Policy. The Disciplinary Committee also established that Appellant had withdrawals which had not been supported by minutes of the Finance Committee. It is apparent on the basis of the evidence presented before the Disciplinary Committee the Appellant was properly found guilty of the acts of misconduct.

Before this court however he has persisted with the same arguments as raised before the Disciplinary Committee. The 1st Respondent led evidence from Mr Washington Muputa, a Ministry Official. He basically elaborated on concepts such as ‘under mastering’, ‘overmastering’ ‘subsidiary receipts’ and ‘master receipts’. Under cross examination he was taken to task for failing to take into account the amounts arising from overmastering. He was however not shaken in cross-examination and indicated that the overmastering in this case operated to cancel the undermastering that Appellant had done.

The Respondent also counsel applied to introduce further evidence in the form of a Bank banked Statement which was dated 24 September 2013 to prove the point that noting was Appellant through his counsel objected to the introduction of the new evidence on the basis that it would result in unfairness as he had responded to the appeal in the absence of the particular bank statement. Respondent counsel in response indicated that the bank statement was not new evidence it had been produced in the Disciplinary Proceedings and therefore there was no prejudice to Appellant. The Respondent had merely overlooked to include it in the record.

The court after considering submissions by parties granted the application to introduce additional evidence in the form of bank statement. The basis for allowing the application was that the application conformed with the principles applicable for adduction of further evidence as laid in many case authorities including  Leopard Rock Hotel Co (Private) Limited & Anor vs Walenin Construction (Private) Limited 1994 (1) ZLR 256 (SC)  AT 260-261. The reason tendered by the Respondent for the failure to include the evidence was in my view sufficient and on the basis of the record truthful. The evidence was also materially relevant to the outcome of the matter.

On the basis of the facts and before the Disciplinary Committee it is the courts finding evidence that Appellant was properly found guilty on the act of misconduct.

The Appellant in ground no 5 is however motivating for a lesser penalty. It is trite that the issue of penalty lies in the discretion of the employer. See Malimanjani vs CABS 2007 (2) ZLR 77(5) Toyota vs Posi 208(10) ZLR 173(5). The employer’s discretion can only be interfered with where the exercise of discretion was grossly unreasonable, capricious or mala fide. In the case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) the court held as follows;

“These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court. The Appellant in this case apart from merely praying for setting aside of the penalty had not pleaded misdirection or gross unreasonableness in the penalty imposed. In the circumstances the penalty cannot be highly interfered with. The appeal clearly has to be dismissed as the Appellant was properly found guilty. The penalty imposed was reasonable in the circumstances.”

The Appellant in this case apart from merely praying for setting aside of the penalty has not pleaded a misdirection or gross unreasonableness in the penalty imposed. In the circumstances the penalty cannot be lightly interfered with. The appeal clearly has to be dismissed as the Appellant was properly found guilty. The penalty imposed was also reasonable in the circumstances.

Accordingly the appeal is hereby dismissed with costs.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners