Philemon Gumbo v Public Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/292/2020
HARARE, 20 JANUARY, 2020 CASE NO. LC/H/25/18
JUDGMENT NO: LC/H/292/2020
CASE NO: LC/H/25/18
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IN THE LABOUR COURT OF ZIMBABWE   JUDGMENT NO. LC/H/292/2020

HARARE, 20 JANUARY, 2020			    CASE NO. LC/H/25/18

& 04 DECEMBER 2020

In the matter between:

PHILEMON GUMBO						APPELLANT

AND

PUBLIC SERVICE COMMISSION				1ST RESPONDENT

MINISTRY OF HOME AFFAIRS					2ND RESPONDENT

Before The Honourable Makamure, J

For Applicant:				Mrs Mandingwa (Legal Practitioner)

For both 1st and 2nd Respondent:	Mr Garwe (Civil Division) with him

For 2nd Respondent:		 	 Ms Madiro

MAKAMURE J:

An order dismissing this appeal with costs was made with reasons to follow. These are they.

This is an appeal against the decision of the respondents’ disciplinary authority dismissing the appellant from their employ.  The dismissal was pursuant to the conclusion of disciplinary proceedings which were conducted against him.  He was disciplined for:

“(i) Improper performance of duty …;”

and

(ii) Any act or omission which is consistent with or prejudicial to the discharge of official duties including abuse of authority.”

This were violations of paragraphs 2 and 24 respectively of the first Schedule of the Public Service Regulations Statutory, Instrument 1 of 2000.

The appellant avers that the disciplinary authority misdirected itself in dismissing him where: he was a victim of his two superiors who were feuding between themselves; the appellant had neither training nor clear guidance on what to do; the issue upon which a certain feasibility report was pivoted was not properly dealt with and that there was no evidence of an act or omission inconsistent with or prejudicial to the discharge of official duties including the abuse of authority.

The appellant is also aggrieved with the penalty asserting that the disciplinary authority failed to consider this personal circumstances and therefore failed to come up with the appropriate penalty; that it imposed a sentence which induces a sense of shock and was disproportionate to the offence and that it imposed the dismissal penalty when there were lesser penalties that could have been imposed.

The facts of his matter which are largely common cause are as follows:

The 2nd respondent needed a report – “Viability Report” for an entity called “Beep Once”. That report would facilitate either the granting of or declining granting a permit to continue operations by this entity which entity was run in Zimbabwe by foreign nationals.

On 30 March 2017 (p124) the appellant and one Munhanga visited Beep Once. They thereafter compiled a report (the Viability Report). The following were the recommendations by appellant and Munhanga which were contained in the Viability Report:

“RECOMMENDATIONS

We recommend that they be granted permanent residence permit as they have injected capital investment which is more than they have on the ZIA certificate and they have also acquired other machinery for expansion as is in their future plans from the previous assessment”.

The appellant signed a report which contained the above recommendation. That report was sent to the appropriate Principal Director of Immigration in Harare. As part of the report appellant listed eleven (11) documents as having been attached to the report. Such eleven documents were not so attached.  This means that the report which appellant submitted was incomplete.  The absence of the “listed attachments” seems not to have been explained.

Since the report submitted by the appellant was incomplete, on 4 July 2017 an investigation was conducted into the operations of Beep Once. The investigation

revealed that the entity was not operating. Beep Once itself on 14 July 2017 (p22) conceded difficulties in operation saying management was “literally broke” among other problems which it was facing. Beep Once also highlighted that one of its machines which had broken down had since been repaired. In view of the repaired machine it indicated that its production was set to resume. The management of the company was therefore requesting that their permit to operate be issued on the basis that operations were likely to resume.

When a comparison is made between what appellant submitted with the follow up report, it is clear that the applicant’s report was misleading. The applicant’s report recommended that a permit be granted, on the basis that “more capital had been injected”. The impression that one gets is that the entity was in operation and had even poured more capital into its operations. This was certainly not the case, regard being had to the results of the investigations mounted by the respondents. The second report is even fortified by the company’s own admission that it was facing operational challenges. Further, the appellant failed to submit attachments which were meant to be part of the report. There was no accompanying explanation why the documents were not submitted.

There may have been a feud between the appellant’s superiors, however it cannot be said that the said feud influenced how he compiled the report. Appellant simply compiled a report which he signed. It is not suggested that he signed it under some form of duress. The said feud therefore cannot have influenced how he personally and consciously compiled the report. He cannot rely on the said feud.

Appellant visited Beep Once and wrote what he says he saw. However when a follow up visit was made, contrary observations were made.  It is my considered view that the appellant compiled a report independently and chose to submit it in the form that it was.

The submission of a report which was not only incomplete but also misleading is evidence showing, that in fact the appellant improperly performed his duties. He supplied false information which could have prejudiced the respondent. Fortunately another visit to the company was made. This visit was necessitated by the appellant’s failure to perform his duties properly. Once there is proof on a balance of probabilities that what was alleged did happen, the person charged cannot escape liability. This is the position with the present matter. There is sufficient evidence against him. The required onus which is, “on a balance of probabilities “was discharged [See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457]

The appellant is aggrieved by the penalty. This is the province of the employer to exercise their discretion.  This is a settled position in this jurisdiction. The Supreme court has held that the employer’s discretion should not be tampered with unnecessarily. [See Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39/2017] It is only when that discretion has been improperly exercised that an appeal court can interfere.  I am not able to say that in the present case the discretion was improperly exercised.

In the circumstances it cannot be said that the disciplinary authority was unreasonable in the exercise of its discretion. Having considered the papers and argument, I find that there is no merit in all the grounds of appeal.

It was in view of the foregoing that an order dismissing the appeal with costs was made.

Mhungu & Associates	-	Appellant’s Legal Practitioners

Civil Division	-	Respondent’s Legal Practitioners