Munyaradzi Arkson Zata v Public Service Commission & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/102/2021
HARARE, 17 JUNE, 2021
CASE NO. LC/H/74/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/102/2021

HARARE, 17 JUNE, 2021		     	     CASE NO. LC/H/74/20

AND 16 JULY 2021

In the matter between:-

MUNYARADZI ARKSON ZATA						Appellant

Versus

PUBLIC SERVICE COMMISSION					1st Respondent

And

THE SECRETARY, MINISTRY OF LANDS, AGRICULTURE	2nd Respondent

WATER, CLIMATE AND RURAL RESETTLEMENT N.O

And

MINISTER OF LANDS, AGRICULTURE, WATER, 			3rd Respondent

CLIMATE AND RURAL RESTTLEMENT

Before The Honorable L. Hove, Judge:

For Appellant:	Mr Mutukwa P. (Mashizha & Associates)

For Respondents:	Mr D. Machingauta (Civil Division)

HOVE J:

The appellant was employed by the 1st respondent as an accountant in the Ministry of Lands, Agriculture, Water, Climate and Rural Resettlement.  On 26 June 2018 the appellant was arraigned before a disciplinary committee to answer to allegations of misconduct.

He was found guilty and the current appeal is against such conviction and penalty.

The grounds of appeal are lengthy but they all challenge the finding of guilty on the following basis; that the appellant did breach the provisions he is alleged to have breached but in so doing, he was acting under his supervisor’s instructions and that it was practically impossible to comply with the regulations without jeopardizing the smooth operations of the ministry, He was thus acting in the best interest of the ministry. He argues that he has justifiable reasons for failing to comply with the provisions. For these reasons, it was wrong to find him guilty.

Alternatively, if the appellant was indeed guilty, the appellant argues that the penalty was harsh, ruthless, draconian and inconsiderate.

The respondent, In arguing against the main grounds of appeal, referred the court to page 37 of the record where the supervisor was asked if he had instructed the appellant not to bank the funds collected to facilitate the smooth operations of the ministry’s programs which required cash. (It was alleged that banks were not giving customers cash). The supervisor M.Z: stated as follows;

“I did not gave (sic) an instruction of that nature but we first identify the need and then we look for money”.

The grounds of appeal numbers 1,2,3 and 4 cannot succeeds in view of the established fact that he was not acting under instructions of his supervisor. On this point alone, the 1st respondent’s decision was not a misdirection. The employee did not deny the fact that he did breach the provisions complained of. He explained however that in breaching the provisions, he was acting under his superiors instructions to enable them to use the funds to run other ministry’s projects which needed money. He was in fact acting in the best interests of the Ministry. The supervisor denied on record that he gave that instruction. The appellant was therefore acting out of his own wisdom, deciding to disregard the provisions that govern the contract of employment, and to allegedly facilitate smooth operations of the ministry, something he was not employed to do. His conduct was not justified at all. His conduct was reckless. He jeopardized his own contract of employment.

It is important that I mention here that this court is hearing this matter as an appeal court. An appeal court does not itself make factual findings. This is the duty of the court or tribunal aquo. The court is merely sitting to assess the reasonableness of the decision made by the tribunal aquo.

The law is established that this court cannot itself reassess witness’ evidence and decide the matter on the basis that the supervisor lied. That is for the trial tribunal.

The position is settled that an appellate court cannot interfere with factual findings made by a trial tribunal. In the case of Hama v NRZ (1) ZLR 664. The court stated the position as follows;

“The General rule of law as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court the findings complained of is so outrageous in its defiance of logic……..that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”.

The facts before the disciplinary committee were not disputed. They were that the appellant had indeed committed the Acts of misconduct. The reason given to justify the misconduct was that the supervisor had instructed him to commit the acts of misconduct for the general good of the ministry. This was denied by the supervisor in his evidence there is thus no misdirection on the part of the disciplinary committee to warrant interference by the court. The finding of guilty was properly arrived at in view of the admission and the denial by the supervisor that he had authorized the Commission of the Act of misconduct.

Vis a vis the penalty, it is now settled law that where the misconduct goes to the root of the employment relationship, an employer is entitled to dismiss an employee, Further, the principle has now been firmly established that an appellate court will not interfere with an exercise of discretion by the employer unless the employer has misdirected itself in the exercise of such discretion. There has been nothing submitted before the court to establish any misdirection on the part of the disciplinary committee in the exercise of its discretion.

See in this regard the cases of Tregers Plastices (Pvt) Ltd Woodreck v Sibanda & anor SC 22/12 and Malimanji v Central African Building Society 2007 (2) ZLR 77 (S).

There is thus no basis established for this court to interfere. The appellant in the course of his duties collected money on behalf of his employer at Nyamapanda Boarder Post but did not bank the money as is required in terms of the Government regulations. An audit was conducted and a total of $9635 was missing. This amount was later banked. These undisputed and admitted facts disclose a serious Act of misconduct. The appellant exposed his employers’ money to theft and misuse. The breach does go to the very root of the contract of employment.

In the result the following order is made;

Order

1. 	The appeal be and is hereby dismissed.

2.	Each party will bear its own costs.

Mashizha and Associates	-	Appellant’s Legal Practitioners

Attorney General’s Office	-	Respondent’s Legal Practitioners