Linnda Muzorembo v Secretary for Higher and Tertiary Education, Innovation, Science and Technology Development (First Respondent), Minister of Higher and Tertiary Education, Innovation, Science and Technology Development (Second Respondent), Civil Service Commission (Third Respondent)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/178/24
HELD AT HARARE 13 MARCH 2024
CASE NO. LC/H/22/21-1
AND 19 APRIL 2024
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OF ZIMBABWE
LC/H/178/24

Held at HARARE 13 MARCH 2024
AND 19 APRIL 2024

IN THE MATTER BETWEEN:-

LINNDA MUZOREMBA
AND
SECRETARY FOR HIGHER AND TERTIARY EDUCATION,
INNOVATION, SCIENCE AND TECHNOLOGY DEVELOPMENT FIRST RESPONDENT

MINISTER OF HIGHER AND TERTIARY EDUCATION,
INNOVATION, SCIENCE AND TECHNOLOGY DEVELOPMENT SECOND RESPONDENT

CIVIL SERVICE COMMISSION

THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant
Ms. J. Wood

No Appearance for Respondents

MURASI J.,

Applicant was employed by the Respondents as a Lecturer at the Harare Polytechnic College. She was charged with misconduct it being alleged that she had refused to comply with instructions to be appraised by her superiors at the College. It was also averred in those charges of misconduct that she had made false reports against two of her supervisors resulting in their arrest and prosecution. Appellant was found guilty and a penalty of dismissal was imposed. Appellant is dissatisfied with this outcome and has approached this Court for relief. I should also mention that Appellant made an application for review to this Court of the proceedings which culminated in her dismissal. The application for review was dismissed by MUSARIRI J in a judgment dated 14 October 2022.

Appellant’s grounds of appeal are formulated as follows;


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1. The $1^{st}$ Respondent grossly erred at law when he initiated misconduct charges before the grievance hearing already in motion had been concluded first given that the issues raised in the charge letter were the same issues in the grievance complaint.

2. The $1^{st}$ Respondent misdirected himself at law by finding Appellant guilty of failing to submit fully completed appraisal forms yet the charge preferred was for refusing to submit to lawful instruction to be appraised and no evidence sufficient to that effect was adduced.

3. The $1^{st}$ Respondent misdirected himself and erred at law by finding Appellant guilty of making a false report against Appellant’s supervisors when the evidence adduced in the hearing did not support such a finding.

In these proceedings, Ms. Wood appeared for the Appellant. However, there was no appearance for the Respondents. This is despite the fact that the Registrar had personally communicated with the Office of the Attorney General who had confirmed that the office would be in attendance, Further, the Notice of set down was properly served on that Office. The Court therefore proceeded to hear the matter on the merits in terms of Rule 37 (b) of the Labour Court Rules, 2017.

**Appellant’s Submissions**

In submissions, Ms. Wood firstly stated that as there was no representation for the Respondents, she was applying for a default judgment. The Court advised her that the matter was long outstanding and it was in the interests of justice to have it heard on the merits in terms of Rule 37 (b) of the Rules.

Ms. Wood stated that the problems started in 2013 when Appellant was said to have refused to submit the Results Based Management forms. She added that no disciplinary proceedings were taken against her until 2019 when the supervisors got together and made a decision not to supervise the Appellant. Ms. Wood further stated that this was because the Appellant had decided to report to the Police and two of the supervisors had been taken to court and charged with criminal offences. She submitted that the supervisors had been acquitted in 2018 and had later made the allegations that Appellant had maliciously caused their prosecution.

Ms. Wood stated that Appellant had refused to sign the forms as she had a right to object to the process. She stated that one witness named Chahuruva had refused to supervise the Appellant as he had no direct contact with the Appellant. It was argued on behalf of Appellant was that what the Appellant was charged with was failing to accede to appraisal forms and failing to submit appraisal forms which was completely different. Ms. Wood argued that some supervisors had refused to appraise the Appellant and that the failure to sign the forms was Appellant’s position to assert her rights as she was not expected to rubber stamp the incorrect forms. It was further argued that the Disciplinary Committee erred in finding the Appellant guilty of an offence she was not charged with and which was not a competent verdict in the circumstances. It was averred that there was no evidence to support the charge. It was further submitted that this smacked of victimization of the Appellant in the circumstances.

As far as the second ground of appeal was concerned, Ms. Wood submitted that the Disciplinary Committee ruling does not show what the findings in this respect were. She stated that the fact that the supervisors were acquitted did not mean that the report to the Police was false. She added that not all acquittals emanated from false reports.

**ANALYSIS**

The Court will begin with the third ground of appeal which should not detain the Court. The facts show that Appellant made a report against the two supervisors. They were taken to court and acquitted after the hearing before the Magistrate. It is trite that in terms of the Criminal Procedure and Evidence Act, (Chapter 9:07), a police is mandated to arrest a person who he/she has reasonable grounds to suspect of having committed any offence. Further the prosecution of such matters rests with the Prosecutor General who delegates such prosecution to local prosecutors. The local prosecutor then proceeds to institute proceedings after having satisfied of the cogency of the matter with which he/she is tasked to prosecute. It therefore goes without saying that the ultimate decision to prosecute a matter rests with the local prosecutor. Where the local prosecutor forms the view that there is no evidence to sustain any prosecution, such prosecution is declined. It therefore could not be alleged that the Appellant was guilty of making malicious reports which led to the prosecution of the two supervisors. It is the Court’s considered view that the Disciplinary Committee erred in returning a verdict of guilty in the circumstances. The ground of appeal ought to be allowed.

The first ground of appeal avers that the First Respondent erred in bringing the charges against the Appellant when there was grievance filed by the Appellant. The first issue that arises is that this ground of appeal does not emanate from the findings of the Disciplinary Committee. This is a procedural issue which should have been brought by way of review. I should hasten to add that this was raised as a ground for review before MUSARIRI J. The finding of the learned Judge in this respect is as follows:

“However applicant did not cite any provisions in the Regulations she mentioned which bars the laying of charges whilst a grievance is pending. Neither did she refer to any other authority supporting the ground.”

This Court cannot depart from the findings made by the Learned Judge in this respect. The decision is extant. The first ground of appeal ought to be dismissed.

This leaves the Court with the second ground of appeal. The Court takes Judicial Notice of the fact that the Government introduced a Results Based
 Management process. This process was instituted in order to assess the performance of its employees annually in order to improve the performance of individual employees. The procedure was narrated by the Appellant’s Principal, Dr. Eng. Mudondo. The relevant portions of his evidence are as follows:


“In this report, it indicated that Ms. Muzoremba was not appraised or she did not follow the steps as required by the RBM System. RBM says in January work plans must be done, March/April first quarter must be done with both the Appraiser and the Appraisee, second quarter is supposed to be in October a review by both the Appraiser and the Appraisee, third quarter is done in November, and finally final appraisal is done by end of December. These are the steps to be followed, which Ms. Muzoremba did not observe. When I realized that, there were gaps I raised the issue to the Human Resources Director attaching communications from her Supervisors.”

A reading of the evidence shows that certain procedures were supposed to be followed in the appraisal cycle. The Principal’s evidence was to the effect that the Appellant had failed, refused or neglected to follow them. This resulted in the reports from the respective supervisors. During the course of the hearing, Appellant’s defence Counsel produced forms which showed that”

“The Legal Counsel showed the Panel the file with RBM forms, which were incomplete. RBM forms were not fully completed. The 2013 RBM form was incomplete, the appraisal form for 2014 was only completed in the second quarter, the third and fourth quarters were incomplete. 2015 was not completed and the form for 2016 was only completed in the first quarter only.”

After being questioned, the Principal gave the following responses:

“The appraisal forms themselves are enough evidence to show that the member did not complete the full cycle as per the regulations.”

“It is the system, I do not supervise her directly. RBM was not done. Her appraisal was not there when others were submitted.”

“The Principal went to his office to look for the file. A document was submitted that showed that Ms. Muzoremba did not submit her appraisal for. It was not amongst the other copies submitted for onward delivery to head Office.”

Kota’s evidence was as follows:

“The evidence is the RBM forms that she refused to sign.”

“Why didn’t she sign the RBM form when others had done so. Failure to do that on its own is refusal.”

The clear picture which is showing the above extracts is that the RBM forms for the period in question were not submitted as the Appellant did not sign them. They were incomplete. The cycle was clearly given by the Principal in his evidence. The witnesses that followed stated that the evidence that Appellant refused to sign was contained in the RBM forms themselves. The ones produced by the Appellant’s Defence Counsel during the hearing show a similar pattern.


Did the Appellant comply with the employer’s lawful instructions? In this respect, I need to refer to the decision of BHUNU JA in NEC for the Catering Industry v Kundeya & Ors 2016 (2) ZLR 189 (S) C-
H. I belive I have to reproduce most of that decision for the sake of clarity. It is as follows:

“The need for employees to submit to their employers’ authority is firmly grounded in common law. Section 4 of the Code merely codifies common law. Thus, both at common law and statute an employer/employee relationship can only subsist in an environment where the employee is ready and willing to submit to the employer’s lawful authority.

Subordination to the employer’s lawful orders is a fundamental ingredient of the contract of employment without which it cannot exist. This emerges quite clearly from the definition of labour law cited in L. Madhuku Labour Law in Zimbabwe (Friedrich Evert Stiftung, Harare, 2015) page 2, where Professor Madhuku says:

‘Labour law is concerned with labour work which is done in a position of subordination, that is, when an employee works under the command, the control and the authority of an employer, when the work is not carried out in a position of subordination, as in the case of self-employment, labour law does not apply.’

That definition is consistent with what has come to be known as the ‘supervision and control test’ formulated in Blismas v Dardagan 1950 SR 234 at 240 as follows:

‘It is the essence of a contract of master and servant that the servant should submit to the direction of his employer and obey his employer’s instructions not only in the things he has to do but as to the time and manner he has to do them.’”

As stated elsewhere in this judgment, the Government introduced a RBM system in order to assess the performance of its employees. The evidence of the Principal showed the clear cycle which was to be followed in compliance with that system. The evidence produced by way of RBM forms for the period in question showed that Appellant’s forms were not fully completed. Clearly those forms which were not fully completed did not comply with the cycle. The other evidence produced by the Principal showed that Appellant’s RBM forms were not amongst those submitted to Head Office. It was argued during the Disciplinary Committee hearing that Appellant had not refused to sign the documents. The evidence showed otherwise. If the Appellant had fully completed the forms, there was no reason why they should not have been forwarded to Head Office. The way the ground of appeal if formulated also shows an attempt to split hairs. In failing to submit fully completed forms would obviously result in a failure or refusal to comply with a lawful instruction. The above cited case clearly explains the relationship between an employer and an employee.


There was a submission by *Ms. Wood* that Appellant wanted to assert her rights in this regard. The argument is without merit. The evidence shows that Appellant did not submit these RBM forms a number of years. Different supervisors were assigned to her when it was discovered that she was being ‘difficult’ to supervise. It would be height of folly to allege that every ‘new’ supervisor who was assigned to supervise her was against her. Further, it has not been stated what those rights were which she wanted to assert. What is clear is that Appellant did not want to submit to the control and command of the supervisors who were doing their work on behalf of the employer. It is my view that the second ground of appeal is devoid of merit and ought to be dismissed.

The Court notes that the Appellant did not raise any issues as regards the sentence that was meted out on her and thus will not address the issue.

In the result, the appeal partially succeeds and the Court makes the following Order:

1. The appeal partially succeeds.
2. The third ground of appeal is hereby allowed.
3. The first ground of appeal is hereby dismissed.
4. The second ground of appeal is hereby dismissed.
5. The verdict of guilty culminating in Appellant’s dismissal is hereby upheld.
6. There is no order as to costs.


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