Margret Mangani v Provincial Medical Director for Mashonaland West Province & Health Services Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/387/2016
HARARE, 9 MAY 2016 &
23 JUNE 2016
CASE NO LC/H/125/2014
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/387/2016

HARARE, 9 MAY 2016 &				                  CASE NO LC/H/125/2014

23 JUNE 2016

In the matter between:

MARGRET MANGANI						APPELLANT

Versus

PROVINCIAL MEDICAL DIRECTOR				1ST RESPONDENT

FOR MASHONALAND WEST PROVINCE

And

HEALTH SERVICES BOARD					2ND RESPONDENT

Before the Honourable L M Murasi J

For the Appellant	Mr M Mutsvairo (Legal Practitioner)

For the Respondents    Mr C T Gutu (Legal Advisor)

MURASI J:

The appellant was employed by the second respondent. Following allegations of misconduct, the appellant was brought before a disciplinary committee held by the first respondent. She was found guilty and her dismissal was recommended. An appeal to the second respondent did not yield the desired results and the appellant has appealed to this court.

The appellant’s grounds of appeal can be summarised as follows:

No reasons for finding the appellant guilty on five counts were given.

That second respondent misdirected itself in finding that the appellant had failed to account for the drugs in respect of the first count.

That the first respondent failed to appreciate the discrepancies of the witnesses’ evidence which pointed to the blameworthiness of the witnesses in keeping proper records.

The second respondent failed to make a determination in respect of the penalty which ordered a restitution of $71 260-30 to be recovered from the appellant’s terminal benefits whereas the second respondent arrived at a conclusion that only $7 650-00 worth of drugs had been unaccounted (for).

The penalty by the first respondent was ultimately harsh and severe and were based on(?) after not taking the mitigary features outlined to the second respondent – that the second respondent did not attach the weight to mitigation factors submitted by the appellant.

Mr Mutsvairo for the appellant stated that no reasons were given for the decisions arrived at especially on five counts out of the seven counts the appellant was charged with. On the count dealing with drugs allegedly delivered to Murereka Clinic, it was submitted that the documentation alleged to have been in the custody of the police was not produced. It was further argued that the Acting Health Administrator is the one who had authorised the appellant to visit Murereka Clinic. In respect of the charge involving the drugs allegedly supplied to the main Pharmacy it was submitted that no evidence was adduced to prove the allegations. As regards the issue of penalty, it was argued that it was exceedingly harsh given the fact that different figures were given by both the Disciplinary Committee and the second respondent. It was submitted that the appellant should have been given a second chance.

Mr Gutu for the respondents, stated that the evidence given to prove the charges was

sufficient to prove the cases on a balance of probabilities. He further, submitted that witnesses from Murereka Clinic had given evidence showing that they had not received the medicines in question. As far as documents were concerned, it was submitted that copies of the documents had been produced at the hearing and the witnesses had denied seeing them and did not sign any of them. It was further submitted that no procedures were followed in the issuing of drugs by the appellant. It was argued that no evidence was called in this respect because it was an issue which was conceded by the appellant. It was further submitted that the appellant had misused drugs which were meant for patients and therefore the penalty of dismissal was the appropriate one.

It is trite that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection to such an extent that a reasonable court would not have arrived at the same decision on the same facts. (See Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)).

Having stated this, it is pertinent to have a look at the determination of the Disciplinary Committee. There were several charges levelled against the appellant. I will first consider those where no formal evidence was given. In one of the charges, the appellant was alleged to have issued drugs to the main Pharmacy Stores which were not received.

What is evident from the record is that no one from the main Pharmacy Stores was called to confirm the non-receipt of the drugs in question. Secondly, none of the appellant’s superiors came to state what the standard operating procedure was. What remained before the committee were the documents making the allegations and the appellant’s statement denying any wrong doing in the alleged transaction. It would appear that the committee relied on its intimate knowledge of the system to reach the decision that the appellant’s actions were unlawful. In another charge, the appellant was charged with having procured and converted drugs to her own use which were not on the Essential Drugs List of Zimbabwe (EDLIZ). No witnesses were called to substantiate these allegations and it is assumed that the Committee used the documents supplied to it to make the determination. The appellant was also charged with not accounting for order books, dispensing registers which were supposed to have been produced for auditing. Similarly, the appellant’s superiors were not called to give evidence as to whether the appellant was issued with the books in the first place so as to place the onus on the appellant to produce them for the purpose of the audit. It is trite that in civil proceedings a party who alleges bears the burden to prove the allegations on a balance of probabilities. (See Astra Industries Limited v Peter Chamburuka SC 27-12). It is also trite that before the onus is discharged, a court or tribunal must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the end the other false. In casu, on the counts referred to, the committee had the allegations and outlines before it. No other evidence was adduced to bolster the allegations levelled against the appellant. It is also a truism that in proving allegations on a balance of probability, what is being weighed in the “balance” is not the quantities of evidence, but the probabilities arising from that evidence, and all the circumstances of the case. In casu, without any evidence, it is therefore to grasp what the committee was weighing in the “balance.” It is my view that the committee was not entitled to arrive at a guilty verdict on these counts on account of the fact that no evidence was adduced to prove the allegations.

I will now turn to the allegations involving the supply of medicines to Murereka Clinic. It is common cause and admitted by the appellant that a consignment was alleged to have been discharged to that clinic. The appellant alleged that the medicines were dispatched and received by the clinic. The witnesses who were called to testify denied receiving the medicines in question. During the hearing the appellant’s legal practitioner sought to allege that the witnesses had misfiled the stock cards. They denied this. In fact, a reading of the appellant’s defence in this respect is quite interesting. This is what she stated in relation to the drugs allegedly supplied to the clinic:

“I deny the allegations. I had an Issue Voucher and there was no transport in Makonde and I was asked to carry drugs to Murereka Clinic. The hospital was complaining too much of Murereka patients. Vehicles were down and there was no fuel at the hospital. I signed on behalf of Sr. Dewa of Murereka.”

The appellant admits that she signed the Issue Voucher using Sister Dewa’s name. This confirms Sister Dewa’s testimony that she did not sign the vouchers in question. What the appellant does not state in that Defence Outline is what she did with the medicines after signing the Issue Voucher. It would be expected that she would say to who she handed the medicines after signing the Issue Voucher. The witnesses from the Clinic denied receiving the medicines. They further state that they would have entered the drugs in their inventory book if they had received the medicines in question. It has not been stated that the witnesses had a motive to give false evidence against the appellant. It is my view that the appellant was properly convicted on this count.

The appellant’s counsel has submitted that the penalty of dismissal was a harsh one and the appellant should have been given a second chance. It is accepted that the issue of what penalty to impose on an employee is largely at the discretion of the employer. An appellate court will only interfer with the exercise of such a discretion where there is evidence of a misdirection on the part of the employer. (See Mashonaland Turf Club v George Mutangadura SC 5-12). The issue is whether a reasonable employer would have reasonably dismissed the appellant in the circumstances. In casu, the appellant was convicted of a charge of misappropriating medicines meant for a clinic. These medicines were for patients in that clinic. The patients were denied access to these medicines due to the appellant’s actions. The record shows that this was not an error on the appellant’s part but one which was clearly a calculated one having regard to the fact that she admits to signing the Issue Voucher but does not state that she delivered them. It is my view that a reasonable employer would have reasonably dismissed the appellant as her misconduct went to the root of her employment contract.

The appellant’s counsel submitted that the figures given by both the first and second respondents were different and that the second respondent had come up with a lower figure which should have had the effect of reducing the penalty imposed on the appellant. MALABA DCJ had occasion to comment on such a situation in Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6-12 where he had this to say at page 2 of the cyclostyled judgment:

“The issue of prejudice was irrelevant to the assessment of an appropriate penalty because the purpose of the introduction of the docket system was to obviate dishonest conduct on the part of pizza makers. The finding that the pizza was only $4-00 was of no consequence. The offence committed involved a betrayal of trust and confidence reposed in the respondent by the appellant, thereby going to the root of the relationship between the employer and employee.”

It is my view that the above sentiments equally apply to the appellant. It was clearly an act of misconduct which called for the appellant’s dismissal. The appeal ought to be dismissed on that basis.

In the result, the court finds that the appellant should have been acquitted on all the other charges but remain convicted on the charges relating to the supply of drugs to Murereka Clinic.

The court makes the following order:

The appeal be and is hereby dismissed.

The decision of the second respondent finding the appellant guilty on the charge relating to the misappropriation of medicines meant for Murereka Clinic be and is hereby upheld.

The decision of the second respondent finding the appellant guilty on the rest of the six charges be and is hereby set aside.

The decision of the second respondent to dismiss the appellant from employment be and is hereby upheld.

There is no order as to costs.

Mushonga, Mutsvairo & Associates, appellant’s legal practitioners