Michael Kazingizi v Secretary for Agriculture, Mechanisation & Irrigation Development

### Preamble
JUDGMENT NO. LC/H/418/2016
HARARE, 26 MAY 2016
CASE NO. LC/H/418/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/418/2016

HARARE, 26 MAY 2016  	  		         	     CASE NO. LC/H/426/15

AND 22 JULY 2016

In the matter between:-

MICHAEL KAZINGIZI							Appellant

And

SECRETARY FOR AGRICULTURE, MECHANISATION		Respondent

& IRRIGATION DEVELOPMENT

Before Honourable P. Muzofa, Judge

Appellant			In person

For Respondent		Ms Chihuri (Civil Division)

MUZOFA, J:

This is an appeal against the decision of the respondent to dismiss the appellant.

The facts of this case are not in dispute.  Following suspicion that some employees including appellant defrauded respondent through false travel and subsistence claims, investigations were made.  The appellant together with other employees involved in the fraudulent activities were charged for violating paragraphs 13 e and 24 of the first schedule of the Civil Service Regulations, 2000 as amended.  He was found liable and dismissed from employment with effect from 16 April 2015.

Appellant appealed to this Court.  On 9 January 2015 Justice MUCHAWA considered the appeal and made the following order:-

“Consequently the determination of the disciplinary authority of 26 September 2013 be and is hereby upheld in respect to the finding of guilty whilst the discharge/dismissal penalty is set aside pending an opportunity to be availed to the appellant to address in mitigation before the imposition of a penalty within thirty days of this order.”

On 27 January 2015 the respondent convened a disciplinary committee whose sale mandate was to give effect to Judge Muchawa’s, to record mitigation and mete out a suitable penalty.

Having considered the mitigation the disciplinary committee recommended a dismissal.

The appellant still dissatisfied approached this court on appeal.

The grounds of appeal raise three issues that the penalty should be reversed, that the period of suspension from 22 October 2013 to April 2015 be treated as leave without pay be reconsidered and that this court take into account mitigation.

The expression of the grounds of appeal are far from precise that as it maybe the court will proceed to make a determination.

Before the Court the appellant also submitted on the merits of the case, that he did not commit the offence.  This court cannot determine on the issue of the appellant’s guilt or otherwise since this matter was disposed of by Justice MUCHAWA.  In her judgment the Learned Judge considered the merits of the case and in the final upheld the verdict of guilt.   This court cannot revisit the issue, it has become functus officio see generally Chirambasukwa v Minister of Justice Legal and Parliamentary Affairs 1998 (2) ZLR 567 (SC).

The first and third grounds of appeal are related.  The appellant raise the issue that mitigation should have been considered and the penalty reversed.

Appellant argued that there were about fourty five cases of the same nature, some of his colleagues were not dismissed, he therefore should not have been dismissed.

The appellant is of the view that at the time he made his address in mitigation the penalty would be reduced.  Indeed the disciplinary committee was enjoined to consider the mitigatory factors and balance them with the aggravating factors.  The mitigatory factors were personal challenges he would face in the event of a dismissal, for he had family responsibilities.

These are the consequences that appellant should have seriously considered before taking the risk to make false travel and subsistence claims.

The appellant committed a misconduct that involves dishonesty.  It is trite that an employer employee relationship thrives in the most based on trust.  Once that trust is breached the relationship is broken down.

The principles relating to the meting out of a penalty are now clear.  The employer has the discretion to be exercised reasonably.  Once an employer is of the view that the misconduct goes to the root of the employment relationship, it is at liberty to dismiss Tregers Plastics v Woodreck Sibanda SC 22/12.

The court will interfere with an exercise of discretion by the employer whereit is shown that there was a gross misdirection in the exercise of the discretion.

In this case the appellant failed completely to show how the respondent’s exercise of discretion can be said to be grossly unreasonable.

Instead the appellant raised issues that he was unequally treated.  He said that there were fourty five similar cases committed in the same circumstances.  Of those some were not dismissed.  MUCHAWA J addressed that issue and dismissed it.  This court therefore cannot reconsider it.

The first and third grounds of appeal are meritless and therefore dismissed.

The second ground of appeal relates to the payment of salaries during the period 22 October 2013 to 15 April 2015.

According to the misconduct determination the order was made in the following terms,

“b. the period 22 October 2013 to 15 April 2015 will be treated as leave without  pay.”

The appellant did not substantiate the ground of appeal in his submission.  Instead in his submission he seemed to have abandoned the initial claim but claim that he be paid for the period between the setting aside of the penalty to the date of determination after recording of mitigation.

This was not part of the grounds of appeal.  Even if it was, it would not succeed.  The appellant failed to show any legal basis why he should be paid his salaries after being found guilty pending the determination of the sentence.

Even if Justice MUCHAWA’s order set aside the penalty only.  The appellant would revert to the status quo ante, that which he occupied before the initial dismissal.  His position was treated as leave without pay, so it remained as such.

The second ground of appeal was not substantiated therefore it is dismissed.

Accordingly the appeal be and is hereby dismissed in its entirety.