Judgment record
Martin Musengezi v Ministry of Transport Communication and Infrastructural Development
[2013] ZWLC 101LC/H/101/20132013
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/101/2013
HELD AT HARARE ON 06 NOVEMBER, 2012 CASE NO. LC/ H/257/2011
In the matter between
MARTIN MUSENGEZI – APPELLANT
And
MINISTRY OF TRANSPORT COMMUNICATION - RESPONDENT
AND INFRASTRUCTURAL DEVELOPMENT
Before The Honourable L. Kudya, President
For Appellant - Mr. W. Magaya (Legal Practitioner)
For Respondent - Ms. C .Garise-Neta(Legal counsel)
KUDYA, L.
This is an appeal against the decision of the Disciplinary Hearing
Committee which dismissed the Appellant following allegations of contravening
the Public Service Regulations
1 /2000.
The facts of the case are as follows: Appellant was employed as a Depot
Manager by the Respondent Ministry. At the time of the allegations founding
the instant case, he was based at the Marondera Vehicle Inspection Depot. He
was charged with acts of misconduct styled in the following manner:
“In terms of section 44(2 )a of the Public Service Regulations , 2000 as amended, you are
hereby alleged to have committed an act of misconduct as defined in terms of paragraphs 3
and 13( a)of the First Schedule section 2 thereto.
Paragraph 3
Failure to obey lawful instructions.
1
You failed to obey lawful instructions by
a) Signing and issuing 119 certificates of fitness without another officer appending a
signature in the witness section in the RMT4 book as required by law so as to witness the
JUDGMENT NO. LC/H/101/2013
presence of the vehicle , thereby contravening section 25 (a)and (b) of the Road Motor
Transportation (Public Service Vehicles )Regulations 1998
b) Issuing 19 certificates of fitness to vehicles without Operator’s Licenses thereby
contravening section 7(1) of RMT
Act No 1 of 1997
Paragraph 13(a)
Dishonest, including……..
a) any contravention of the Prevention of Corruption Act Chapter 9:16
You acted in a dishonest manner when you issued 119 Certificates of Fitness without
appending a signature in the witness section in the RMT4 book and 19 Certificates of Fitness
to vehicles without Operator Licenses and prejudiced the State an amount equal to
US$125.00x 19=US$2375.00
Appellant was brought before a Disciplinary Committee which found him
guilty of the above charges and accordingly recommended that he be dismissed
from employment. The Disciplinary Authority went on to dismiss him.
Dissatisfied with his dismissal, the Appellant caused his matter to be placed
before the Public Service Commission for review citing irregularities in the
manner in which the case had been handled by the Disciplinary Committee.
The Commission set aside the decision of the Disciplinary Authority. It
ordered the Disciplinary Authority to reinstate the Appellant, suspend him
again, and charge him and to set up a properly constituted Disciplinary
Committee to re-hear Appellant’s case, this time in a procedurally correct
manner. It also ordered that vehicle depots countrywide be investigated for the
ill practice which had founded the Appellant’s misconduct charges. This was so
because the reports which had been used at the Appellant’s disciplinary hearing
suggested that it was standard practice to act in the manner in which Appellant
had acted.
JUDGMENT NO. LC/H/101/2013
Appellant was re-charged with the same result of dismissal. It is
against this decision that he has now appealed to this court. He prayed that the
court set aside his dismissal and order that he be reinstated to his original
position without loss of pay and benefits.
The basic grounds of appeal which the Appellant relied on are as follows:
1. Appellant was charged and convicted of an incompetent charge that is
refusal to obey lawful instructions when there was no such instruction.
2. The reason to dismiss the Appellant was predetermined because he
was not given reasons for his dismissal and he was not afforded an
opportunity to mitigate before he was dismissed.
3. Appellant was victimized because the conduct complained of was
standard practice countrywide.
4. Respondent relied on an investigation report whose author was
unknown and during whose compilation the Appellant was not invited to
participate.
5. Respondent failed to comply with the Public Service directive to
investigate all depots for the practice which gave rise to the misconduct
which the Appellant was charged for.
6. The Respondent failed to conduct the hearing within the time limit
directed by the Public Service Commission.
7. Appellant was convicted and discharged for an offence which was not
part of the charges which gave rise to the disciplinary hearing.
8.Repondent erred by convicting and dismissing Appellant for issuing
certificates of fitness to vehicles without operator’s licenses yet Appellant
did not commit any act of misconduct as he followed what the law
provided for. To that extent, Respondent failed to interpret and
administer its Act.
9.Respondent erred by finding Appellant guilty of countersigning
certificates which he had issued himself yet there was clear evidence that
this was occasioned by staff shortages where the Appellant found himself
manning the depot alone. In essence, the practice was standard country-
wide yet
Respondent selectively charged the Appellant leaving out the rest of the
Depot Managers who also acted as the Appellant had.
In response to the Appellant’s grounds of appeal the Respondent stated
the following:
1. Appellant was competently charged since section 33 (1) of the Road
Motor Transportation Act legally instructed him to ask the drivers of
vehicles to produce any license issued under the RMTA Act.
2. The assertion by the Appellant that the decision to dismiss him was
predetermined was frivolous as he was accountable to the Ministry for
the enforcement of the Regulations in question. His failure to do so thus
brought the Ministry into disrepute and destroyed the public confidence.
His conduct merited dismissal. On the same note, he was afforded an
opportunity to mitigate when he appeared before the disciplinary board
on given dates.
3. The Appellant was afforded an opportunity to be heard. Samples of the
books which were used in his case were given to him to peruse for the
hearing. The books in question proved that, it was not standard practice
that certificates be issued in the manner which founded these allegations.
Counter signatures were required to ensure transparency.
4. The investigation report was an authentic document done within the
Ministry and there was no need to have asked the Appellant to participate
in its compilation as the report was about him.
5. The Public Service directive did not absolve the Appellant from his
wrong doings neither was the directive copied to him hence, it had
nothing to do with the charges leveled against him.
JUDGMENT NO. LC/H/101/2013
6. The hearing could not be concluded within the time stipulated by the
Public Service Commission because the matter had been postponed at
Appellant’s instance on the basis that his Legal Representatives were
committed then.
7. Appellant was charged and discharged on charges which were in order
of section 46(4) of the Public Service Regulations.
8. Applicant was charged for failing to obey lawful instructions and not for
any other misconduct which he refers to. His conduct consequently
prejudiced the Fiscus of revenue in the form of operators‘ license fees
which were due to it had the Appellant acted properly.
9. As stated in 3, the Appellant was given a chance to peruse the samples
and it was clear that it was not the standard practice that certificates were
issued in the manner in which Appellant issued them.
From the facts of the case and what happened at the Disciplinary
Committee the following emerged to be undisputed.
1. There were instances where the Appellant had to man the depot alone
due to staff shortages.
2. The depot documents referred to by both parties indicated that the
conduct complained of in respect of the Appellant was not unique to
his depot. Some of the depots documents showed that what
happened at Appellant’s depot also happened at depots which were
manned by one depot manager. Certificates from those other depots
contained single signatures which were not witnessed
notwithstanding the fact that two signatures were required for
transparency purposes.
JUDGMENT NO. LC/H/101/2013
3. The directive by the Commission to the Ministry to carry out
comprehensive investigations into all depots to establish the accurate
picture about the practice was not complied with.
The major issue which therefore fell for decision in this matter is
whether or not indeed the Appellant was rightly charged and rightly dismissed
judging from the evidence which was presented before the Disciplinary
Committee
When the parties filed their heads of argument they also raised the
issue of the appropriate remedy in the event that the court finds that the
Appellant was dismissed irregularly. Appellant’s Counsel moved the Court to
order reinstatement only without the alternative for the payment of damages.
His argument is that in a similar case the respondent flatly refused to pay
damages.
On the other hand, Counsel for the Respondent maintained that the
question of reinstatement was dependent upon whether or not the Respondent
was satisfied that a normal working relationship with the Appellant could be
resumed or not.
As regards the first ground it is important to note that the Appellant
was charged with contravening section 25 of the Road Motor Transportation
(Public Service Vehicles) Regulations 1998 as well as section 7 of the R.M.T Act
No 1 of 1997.The sections in question are reproduced below for purposes of
clarity.
Completion of forms
25.” any person who –
a) willfully furnishes incorrect,incomplete or inaccurate information on any form or
certificate
Shall be guilty of an offence and liable to a fine not-------------“
Section 7 states
“Subject to this Act, no person shall operate a goods vehicle on any road or-----
Unless he is the holder of an operator’s license authorizing the operation or service
concerned ------“
A simple reading of these two sections demonstrates clearly that these
are referring to persons or drivers who will be completing forms or taking out
operators’
licenses in respect of their motor vehicles. There is nowhere from a reading of
these two sections where there is any suggestion that these apply to the issuer
of the operator’s license in question or the issuer of the certificate of fitness .
The Respondent tried to justify the charge by arguing in its heads of
argument that section 33 of R.M.T Act grants to persons in position of authority
as the one occupied by the Appellant powers to stop and inspect vehicles and to
require certain information from drivers or operators. It therefore suggested
that, if the Respondent did not satisfy himself that applicants in the certificates
of fitness and operators’ licenses had complied with the above legal
requirements it therefore meant that he failed to follow a lawful instruction and
was therefore liable as charged.
What constitutes a lawful instruction is clearly set out in the case cited
by the Appellant’s counsel.
The headnote in the case of Matereke vs CT Bowring and Associates
Pvt Ltd 1987(1) ZLR 207 stated the following
“--willful disobedience of a lawful order given by the employer justifying summary
dismissal of an employee-----must be such disobedience as to be likely to undermine
the relationship between the employer and employee------must be such disobedience
going to the root of the contract of employment . Knowledge and deliberateness and
an intention to disobey must be present and the disobedience must be serious and not
trivial. The test whether the employee’s willful disobedience is a breach going to the
root of the contract is an objective one and it need not be shown that, subjectively , it
evinces an intention on the employee’s part to repudiate his contract of employment.”
JUDGMENT NO. LC/H/101/2013
If this quote is placed in the context of the charges which were leveled
against the Appellant, it is clear that there was no lawful instruction which the
Appellant is said to have failed to follow. The cited provisions did not relate to
him
so the court wonders how it could be argued that he failed to follow lawful
instructions.
This court associates itself with the judgment by President Makamure
E in the case of Christopher Patsika and others vs P.S.C and Ministry of
Transport.LC/H/375/1 which was quoted by the Appellant’s counsel.
The facts of the Patsika case (supra) are almost on all fours with the
facts of the instant case. As Honorable Makamure rightly observed it would be
irregular for a court to find the employee guilty of a charge which did not form
the basis of his dismissal.See Standard Chartered Bank vs Matsika 1996 (1)
ZLR 123 (S)
In the instant case what motivated the Appellant’s dismissal was the
fact that the Respondent took it that the Appellant had failed to follow its lawful
instruction. In particular it states that the Appellant was obliged by law to have
the certificate of fitness countersigned and that before one could get a
certificate of fitness one had to produce an operator’s license.
It is however clear from a reading of the Sections which the Appellant was
alleged to have contravened that these had nothing to do with him. Essentially,
they referred to drivers or operators of public service vehicles. If the
Respondent was of the view that the Appellant had breached the law by not
having the second signatures on the certificates it was imperative that it charge
him with the correct offence.
JUDGMENT NO. LC/H/101/2013
If in its view he was defying a standing order or mode of operation the
charge should have clearly spelt that out. Anything short of that cannot be held
to justify the guilty verdict and the penalty which was meted out in this case.
Commenting on defective charges and the powers of the Labour Court on
appeal Gwaunza JA had this to say in the case of Zimasco Pvt Ltd vs Chizema
SC 38/07
“the court is not there to formulate charges or cases for litigants. In cases of this
nature the court’s brief is to determine, on the basis of evidence placed before it,
whether or not a case has been proved against the respondent .It needs no emphasis
that he who alleges anything against another person must prove such allegation”.
This court is therefore satisfied that since the charges in the instant
case were defective from the onset there is nothing which could come out of
them. This court is under no obligation to correct the defective charges which
were preferred by the Respondent. Appellant is therefore entitled to the relief
which he is seeking in respect of the first ground of appeal.
The argument that the dismissal was premeditated was based on the
fact that the Appellant was not given a chance to mitigate. It is trite law that
upon finding an employee guilty, he should be asked to submit his mitigation.
See Section 12 (4)(b) of the Labour Act
The disciplinary body is expected to make findings based on the
mitigation and aggravation factors in a given case. Failure to do so is a
misdirection which warrants an upsetting of the penalty concerned.
In the instant case, no findings were made on the basis of the
Appellant’s submission on his long service with the Respondent and family
circumstances. The impression formed by the Appellant that the disciplinary
body was determined to get
JUDGMENT NO. LC/H/101/2013
rid of him cannot be faulted since no clear findings on mitigation and
aggravation were made by the disciplining body.
Appellant also argued that, because the conduct complained of was
experienced at one man stations of the Respondent’s it was not proper for the
Respondent to charge him only leaving the others who had acted similarly. See
Equity principle is enshrined in the SI 15/ 06.
Whilst like cases should be treated in the same manner, it is pertinent
to note that the prerogative of who to discipline lies with the employer. If in its
wisdom the Respondent deemed it proper to charge Appellant only it was free
to do so BUT it had to charge him properly.
The court also noted that, it is not at every station that single
signatures were being used. To use that argument as a blanket excuse is
without any foundation. This court was therefore not persuaded by these two
arguments as they lacked merit.
The investigation report concerned the Appellant and it is the court’s
view that the employer was not obliged to have the Appellant participate in its
compilation. In any event, it is clear on the face of the document that it was
authored within the Ministry. Nothing therefor turned on the argument about
the document. The court was satisfied that Appellant had not placed before it
any convincing argument in respect of this ground. It therefore should also fail.
The Respondent correctly observed that the Public Service directive to
investigate all depots did not absolve the Appellant if at all he was guilty. Indeed
it was pertinent that all the depots be investigated but based on the sample
depots
JUDGMENT NO. LC/H/101/2013
that were on record that evidence was enough for the court to make findings
on. This ground also lacks merit and should accordingly fail.
Ground seven is on the same basis as the first ground. Suffice to
mention that indeed it was imperative that the dismissal of the Appellant be
based on proper
charges, anything short of that vitiated the verdict and the penalty imposed in
the matter.
The same sentiments go for the eight ground of appeal. What has
been said on the first ground applies with equal force to this ground.
Ground nine is not distinct from ground three hence it deserves no
further discussion. Suffice to say that indeed if failure to have a counter-
signature was a dismissable offence it had to be followed by an appropriate
charge before the Appellant could be dismissed. It was Appellant’s duty to act
on behalf of the Respondent as he executed his mandate but as already stated if
he failed to do so he had to be charged properly.
If one looks at the above analysis of the grounds of appeal and the
responses thereto it is clear that the major error which the Respondent fell into
was to prefer the wrong charges against the Appellant. The court can therefore
not sanction any verdict or penalty emanating from improper charges against
the Appellant. The court is therefore satisfied that Appellant made a good case
for his appeal in particular, on the grounds of the wrong charge.
As indicated above the appellant also moved the court to make a
direct order for reinstatement. The court has not been able to find authority
which obliges it to grant such an order on the basis which the Appellant raised
with the court.
JUDGMENT NO. LC/H/101/2013
The argument which the Appellant raised was that: if the order is
given with an alternative for damages the Respondent may flatly refuse to pay.
If the court were to accept that argument for a minute, the court fails to see
how the Respondent can in the same spirit not refuse to comply with the
reinstatement order if it can flatly refuse to comply with the damages one. It is
the court‘s considered view that the issue of how the order will eventually be
enforced is not the province of this court at this juncture.
It need be noted that, of late the Supreme Court has encouraged that
reinstatement orders be made with an alternative for damages so that the
Applicant does not lose out completely if the Respondent fails to reinstate him.
Given the magnitude of the Respondent it indeed has a variety of
stations and departments where the Appellant could be asked to discharge his
duties from. However, as has already been stated above, it is not the function of
this court to find out how best its orders can be enforced. Once the order is
registered with the appropriate court the assumption is that it shall be complied
with. If not, the party complaining may take all the necessary action to have the
order or judgment complied with.
In the result the court was satisfied that the prayer for direct
reinstatement order was out of step with orders to be made in cases of a similar
nature.
It is therefore ordered as follows:
1. The appeal being with merit be and is hereby upheld with costs.
2. The Respondent’s verdict and dismissal penalty are accordingly set
aside.
3. Appellant is accordingly reinstated to his original position with full
pay and benefits from the date of his dismissal. If reinstatement is no
longer
JUDGMENT NO. LC/H/101/2013
an option the parties are free to approach the court for quantification
of damages.
L. Kudya
President: Labour Court
Coghlan,Welsh and Guest :Appellant’s Legal Practitioners