Pretty Machawira v Parirenyatwa Group of Hospitals

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/52/2022
HARARE, 16 FEBRUARY 2022 &
11 MARCH 2022
CASE NO LC/H/496/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/52/2022

HARARE, 16 FEBRUARY  2022 &		 CASE NO LC/H/496/21

11 MARCH  2022

In the matter between:-

PRETTY MACHAWIRA				APPLICANT

AND

PARIRENYATWA GROUP OF HOSPITALS	RESPONDENT

Before the Honourable Kudya J

For the Applicant			V. Vengayi (Legal Practitioner)

For the Respondent			Raymond Nyatoti (Civil Division)

KUDYA, J:

This is an appeal against the decision of the respondent officer reprimanding appellant employer for 6 months with effect from 15 February 2021.  This was at the backdrop of her having been charged and tried on allegations of incompetent or inefficient conduct of her duties in contravention of section (4)(f) of the Model Code.

Facts of the case were that she received US$5342 as a school hospital donation to safekeep.  She says put it in a metal steel cupboard thereafter she went on leave twice and on the final account discovered that part of the money was now missing.  The main thrust of her argument is that she was not schooled .in funds handling .and besides it was not her duty to do so but her superior’s duty.

She contends also that her guilt or innocence is still under test at the Magistrates criminal court so in her view it was irregular for her to be asked to reimburse the missing portion of the money.  Each of the appeal grounds is dealt with below:-

Irregular charge

It is appellant’s contention that she could not be competently charged for incompetence or inefficiency. To this end she cited the case of Kwangwari  v  CBZ 2003(1) ZLR 551 where she reasoned that  an incompetence charge could only subsists  if (a) accused was made aware of the standard required of her, (b) whether she was sufficiently  trained and, (c) whether she was given an opportunity to reform.

In reaction to this submission the employer relied on the case of Muyaka v Bak Logistics SC-39-17 where the 2 terms of incompetence and inefficient were distinguished.  It is granted that appellant was not trained in handling cash neither was she within the hierarchy of people charged with the responsibility of handling donations for the employer’s donation policy but that being as it may it would be naïve for the court to reason that appellant needed to be trained that when she was holding on to cash she should hand it over when she went on leave.  Why would she conveniently handover everything else except the cash.  The court is satisfied that her conduct leaves more than is desired in that regard.  The court can therefore not fault the appeals officer’s upholding of the fact that appellant acted inefficiently in the circumstances.  The ground being without merit should fail.

Incompetency:  Need for Skill

This ground is intricately linked WITH the ground on incorrect charge. Sentiments expressed therein apply to this ground with equal force. Appellant’s conduct clearly demonstrated her inefficiency.  She needed no training to have a proper hand over of the trust money. This ground can therefore not sustain her appeal.

Preliminary Issues and Merits

A reading of the record demonstrates that both preliminary issues and merits of the case were addressed so there is no basis for the appellate court to tamper with the decision of the appeals officer. The ground also being without merit should fail.

Restitution

Appellant’s concern is that her guilt or innocence has not yet been pronounced by the criminal court. She therefore is of the view that the criminal outcome should determine the restitution issue. It is settled that the criminal law component is divorced from the civil component See 278(s) Criminal law Code reference Act.  Due to that divorced set up there was nothing irregular in the restitution order to ameliorate the loss.  The ground also being unmerited fails.

Legal Representation

The record is replete with evidence that appellants legal counsel had occasion to make submissions before the disciplinary body even though in some instances they reminded him that it was not necessary that his client speak through him.  It need be noted that the Model Code is silent on legal representation but what is critical is to  determine whether applicant had a fair hearing (See Rwodzi v Municipality of Chegutu HC-H-86-03. On the face of the record of the proceedings it appears appellant got such fair hearing.  The appellant court thus has no basis to  interfere.

Audi alteram pantem rule

As indicated earlier the record is replete with evidence that appellant was heard and had a chance to cross examine witnesses.  This court therefore can not fault such use of discretion by the trier of fact.  In the ultimate all appeal grounds being without substance the appeal   must fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Warara and Associates, Appelant’s Legal Practitioners