Pias Mushambi v Local Authorities Pension Fund

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/752/16
HELD AT HARARE ON 26TH JULY, 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/752/16

HELD AT HARARE ON 26TH JULY, 2016 	   CASE NO. LC/H/1082/15

AND 18TH NOVEMBER, 2016

In the matter between:-

PIAS MUSHAMBI							    Appellant

And

LOCAL AUTHORITIES PENSION FUND			    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr M. Mtlongwa (Legal Practitioner)

For Respondent	:	Mr A.T. Muza (Legal Practitioner)

MHURI J.

Appellant was charged with and found guilty of conduct inconsistent with the fulfilment of the express or implied conditions of service.  The facts that gave rise to this charge were that, Appellant failed to supervise his subordinates resulting in two of his subordinates defrauding the Respondent.  He failed to supervise the updating of the Fund’s cash books and reconciliation of all bank statements on a monthly basis.  He also failed to ensure compliance with set control procedures.

Having been found guilty of the main charge, his alternative charge of gross incompetence and inefficiency fell away as the Disciplinary Authority saw no need to proceed to assess its evidence.  Following the guilty verdict, Appellant was then dismissed from Respondent’s employment.  Aggrieved, Appellant noted an appeal to the Appeal’s Board which advised him to appeal to this Court as the Board was conflicted.

In turn, Appellant noted his appeal to this Court reproducing the same grounds of appeal.  His grounds are basically five (5) grounds which are mainly an attack on the penalty imposed.

A semblance of an attack on the verdict is to be found in the first and fifth ground.  It is noted that these grounds of appeal were drafted by a Legal Practitioner but one is left to wonder why he drafted them in such an unclear manner.

As regards the verdict, it is a well-established principle of our law that an Appellate Court shall not interfere with a lower court’s factual findings unless it is shown that there was gross unreasonableness on the part of the Court aquo.

KORSAH JA (as he then was) underscored the point in the case of

HAMA vs NATIONAL RAIWAYS OF ZIMBABWE 1996 (1) ZLR 664 S

at 670 D.

“The general rule of the 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 finding complained of, is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

The Disciplinary Authority considered all the evidence placed before him, summarised it in detail and made the factual findings that:

Appellant was enjoined to supervise the updating of the fund’s cash books ledgers and do bank reconciliations on a monthly basis.

He found that this was an express duty which Appellant was to conduct.

Appellant had a duty to check if the documents generated by Account Assistants were proper and that the payment instructions were a correct reflection of what the fund was supposed to pay.

This was also an express duty on the Appellant.

Appellant had an implied duty to safeguard against fraud and deception within his department.

He concluded that not only was Appellant obligated to ensure correctness of his subordinates work, but also scrutinize their work so that the Fund does not lose money due to fraud.

Appellant had an express duty to supervise the updating of the cash books and reconciliations.

The Disciplinary Authority noted that the reconciliations were late and there were anomalous entries which distorted the true financial position.  The fund was consequently prejudiced.

The employer’s evidence was more credible than that of the Appellant.

He noted that Appellant’s evidence was contradictory in that in one vein he said, he warned and disciplined his subordinates and in another vein he said, the reconciliations could not be done on time due to system problems.

The reconciliations were not timeously done because of Appellant’s dereliction of duty.

Appellant fell short of his supervisory role.

On a balance of probabilities Appellant conducted himself in a manner that was inconsistent with the express or implied conditions of his contract.

I do not find any unreasonableness or outrageousness in the Disciplinary Authority’s factual findings.  It is common cause that Appellant was the supervisor of the subordinates who committed fraud against Respondent.  He failed to detect the fraud.  It is common cause that he was obliged to check the details on the RTGS raised by his subordinates to ensure the details tallied with those on requisitions raised by Pension Department.  Only then would payments be made, but he failed in that regard.

In as far as the issue of credibility is concerned, this Court is not at liberty to interfere with the findings by the Disciplinary Authority.  The findings that his explanation was rather cavalier and evasive, he was lax and allowed subordinates to alter bank details and forge new payment instructions on the basis of pieces of paper and sticky notes, all this cannot be interfered with by this Court.

Overally, I find that the Disciplinary Authority’s findings are beyond reproach and cannot be impugned.  On a balance of probabilities, the act of misconduct was proved.

It is a trite legal position that imposition of a penalty is the prerogative of the employer.  An Appellate Court will be very slow to interfere with the exercise of such a discretion unless it is shown that it was improperly exercised.

In 	TREGERS PLASTICS (PRIVATE) LIMITED

vs

WOODRECK SIBANDA

PAUL MAGONDO SC 22/2012

ZIYAMBI JA had this to say at page 2 of the cyclostyled judgment,

“It is now settled law that where the misconduct goes to the root of the employment relationship an employer is entitled to dismiss the 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 there has been a misdirection in the exercise of such discretion.”

In casu, I find no basis to interfere with the penalty imposed by the Disciplinary Authority.  The Disciplinary Authority considered the mitigatory factors placed before him.  He also considered the aggravating factors placed before him.  He found the aggravating factors to outweigh the mitigating factors.  It was his considered view that the act Appellant was found guilty of goes to the root of the contract of employment.

In the case of –

STANDARD CHARTERED BANK

vs

CHAPUKA SC 125/04

it was stated that such conduct entitled the employer to dismiss the employee from its employ.

The imposition of the dismissal penalty was properly done in my view considering that the Disciplinary Authority took into account the seriousness of the offence, what the fund lost, the Appellant’s failure in his supervisory duties and failure to detect the fraud.

In the circumstances, the appeal must fail and it is ordered that it be and is hereby dismissed with costs.

CHAMBATI MATAKA & MAKONESE – Appellant’s legal practitioners

MAWERE & SIBANDA – Respondent’s legal practitioners