Oswell Simbarashe Muyaka v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/609/2016
HARARE, 4 JULY 2016 &
CASE NO LC/H/893/2015(REV)
7 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/609/2016

HARARE, 4 JULY 2016 &				    CASE NO LC/H/893/2015(REV)

7 OCTOBER 2016

In the matter between

OSWELL SIMBARASHE MUYAKA					APPELLANT

Versus

PUBLIC SERVICE COMMISSION					RESPONDENT

Before the Honourable Chidziva J

For the Appellant	D Ndawi (Legal Practitioner)

For the Respondent     A Magunde (Civil Division)

CHIDZIVA J:

This is an appeal against the decision of the disciplinary authority dated 14 September 2015. The Secretary for Public Service Commission in a letter dated 14 September 2015 stated that:

“Please be advised that acting in terms of section 50 (1)(a) of the Public Service Commission (Commission Secretariat) Regulations, 2007. I have ruled that you be dismissed from the Public Service Commission Secretariat with effect from 18 September 2015. …”.

The brief history of this matter is that the appellant a Pension’s Assistant of the Public Service Commission appeared before disciplinary authority in February and March 2015. He was charged with misconduct in terms of section 43 (a)(b) of SI 162 of 2007 as read with paragraphs 8 and 13 (d) of the 3rd Schedule (section 14) of the same regulations on allegations that:

“Paragraph 8

Making improper or unauthorised used of Commission property”.

“Paragraph 13 (d)

Uttering a forged document”.

It was alleged that on 23rd of October 2012 and in a bid to authorise his Ecobank loan application form, the appellant date stamped the loan application form using the pensions Agency without the authority and knowledge of the Superiors. He submitted a falsified document to Ecobank which had the employer’s section signed by an unauthorised official.

The appellant was also further charged in terms of section 20 of the same regulations. It was alleged that he committed:

“an act …. which is inconsistent with or prejudicial to the discharge of official duties.”

The appellant is alleged to have signed Mr Munyeza’s Ecobank loan application form on behalf of the employer when he did not have the authority to do the same.

The disciplinary hearing committee recommended that the appellant be reprimanded in terms of section 50 (i)(f) of the Public Service Regulations. The record and recommendations of the disciplinary hearing were forwarded to the disciplinary authority who meted out the dismissal verdict. It is against this verdict that the appellant has filed an appeal in this court. The grounds of appeal are as follows:

The disciplinary authority misconstrued the issues

The official stamp unless it is specifically issued serves to confirm to the public that a document originates from an official of the office shown thereon as the public cannot be expected to be familiar with the names and signatures of all the public officials.

The disciplinary authority failed to realize that a member does not misconduct himself merely by performing duties which are not his routine duties. Servants of the state have general authority to give information and routinely identify Manyeza as a servant of the State to the bank.

The findings of the committee that the appellant’s loan application was forged is a misdirection with no basis on the evidence led at the hearing.

The disciplinary authority failed to take the meaning of “authorised signatory” in the perspective of the bank which issued the disciplinary authority did not appreciate that the form was designed for companies which normally do not disclose their affairs. The bank must simply have meant a person who could lawfully have such information.

At the time cause of misconduct proceedings there was no person charged with completing such forms. In the premises the form could be completed by any member of the agency.

The penalty imposed is grossly excessive and sends a serve of shock.”

The appellant therefore prayed that the verdict and penalty be set aside.

The respondent in response stated that:

The appellant was not authorised to use the stamp for that particular purpose.

The appellant had a contract of employment that clearly states his job description and title. There was no basis therefore that he would purport to describe himself with a title higher than that he was.

The term “authorised signatory” should not be construed to mean that anyone who possesses the information becomes a signatory.

The work was reserved for personnel officers and managers.

The penalty was proper in the circumstances.

The respondent on these grounds prayed for the dismissal of the appeal.

It is common cause that:

The appellant signed Ecobank loan application forms for Mr Manyeza.

Mr Manyeza signed Ecobank loan application forms for the appellant.

The appellant then stamped the loan application form using the pensions agency date stamp.

What is to be decided is whether the appellant:

Made improper and unauthorised use of Commission property.

Altered a forged document.

Actions were inconsistent with or prejudicial to the discharge of official duties.

The penalty is excessive.

During the disciplinary hearing that was conducted on 27 February 2015. The appellant stated that (page 9 of hearing proceedings):

“The reason why I used the date stamp without authority is that I did not get assistance from HR. At first they gave me confirmation of employment and later approached them to sign the form Eco-bank for me Ms Munetsi refused.  My father had been admitted at West-End so I was desperately in need for money for him to undergo an operation.”

He also stated that he realized and was aware that what he did was wrong. He also admitted that he did not tell his boss that he had failed to get assistance from his boss.

The appellant’s actions are a clear sign of dishonesty. The fact that Mr Munesi who formed part of HR personnel refused to sign the forms indicates that the appellant knew that Mr Manyeza did not have the authority to sign his papers and he went on to have his forms signed by an unauthorised person. This was not a valid approval because Mr Manyeza did not have the requisite authority. The signing of the application form is forgery because it did not show the wishes of the authorised personnel.

The appellant has also argued that the penalty is excessive. However in the case of Tobacco Sales Floor v Chimwala 1987 (2) ZLR 210 it was stated that:

“an employee must not make profit for himself which should be uncounted to the employer. It warrants a dismissal.”

The appellant in this matter forged loan application forms for financial gain. It was only upon an enquiry by Ecobank for those who had defaulted in servicing their loans that it appeared that there was no approval of the loan.

The case of Tobacco Sales Floors v Chimwala supra also stated that:

“Misconduct is to be measured by whether it is inconsistent with the fulfilment of the express or implied conditions of his contract. If it is then it is prima facie to warrant a summary dismissal.”

The appellant’s actions in this case were not consistent with the fulfilment of express or implied conditions of his contract. They amounted to a high degree of dishonesty.

In view of the foregoing this court finds that the appellant’s appeal lacks merit and warrants dismissal.

Furthermore when the partners appeared before me Mr Ndawi representing the appellant indicated that the appellant was dropping the application for review and thus the application for the withdrawal of the application for review was granted.

This court therefore orders as follows:

The application for withdrawal of the application for review be and is hereby granted.

The appeal be and is hereby dismissed.

The appellant to pay costs.

Dondo & Partners, appellant’s legal practitioners

Attorney-General’s Office Civil Division, respondent’s legal practitioners