Rudolph P. Matsanga v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/18/2016
HARARE, 3 MARCH 2015
CASE NO. LC/H/784/11
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/18/2016

HARARE, 3 MARCH 2015			CASE NO. LC/H/784/11

AND 22 JANUARY, 2016

In the matter between:-

RUDOLPH P. MATSANGA			Appellant

And

PUBLIC SERVICE COMMISSION		Respondent

Before Honourable L. Kudya, Judge

For Appellant		C Mahlangu (Legal Practitioner)

For Respondent	N Muzuva (Civil Division)

KUDYA, J:

This is an appeal at the instance of the appellant employee against his dismissal by the respondent employer.  The background to the matter is that appellant who was in the respondent’s employ as an accountant was charged with misconduct for failing to conduct his accounting duties diligently in contravention of Section 44 (2) as read with paragraphs 2,3,8 and 24 of the First Schedule (Section 2) of the Public Service Regulations SI 1 of 2000 as amended.  In particular it was alleged that he had failed to report to the authorities the absence of one Mukozho an accounting assistant who had gone off on unauthorized sick leave with the safe keys.

He was also said to have recommended Mukozho’s sick leave but did not ask him to return the safe keys and to conduct a handover takeover of the receipt books and money receipted on 6/6/10.

Appellant was also said to have allowed one Mupfumira another assistant to proceed to open the safe without his supervision yet he had also received a report that the said safe keys had surfaced from a certain student.  Appellant thus allowed the use of such keys without a proper hand over.  Appellant was also accused of not letting the authorities know that Mupfumira had brought it to his attention that she had found unmastered receipt books with cash and cheque figures of $9 535.00 and $1 066 respectively.  Appellant did not investigate the circumstances of the found security items but allowed Mupfurira to use the same and left the unmastered receipt book in noone’s custody thus demonstrating negligence.

He was said to have failed to supervise Mukozho and Mupfumira when Mupfumira issued receipt books to Mukozho without letting him sign for the books, Mukozho was issued with more than one receipt book at a time before mastering the finished one and Mupfumira issued receipt books without following the sequence of the numerical order.  In the ultimate he was said to have failed to take reasonable care of the respondent’s funds as the assistant’s receipted money from 7 to 15 June 2010 without access to a safe rendering risk of the loss of the money.  Allowing the use of multiple receipt books per account resulted in $9 535 being unaccounted for.

He was brought before a disciplinary committee which found him guilty of the charges and dismissed him from employment.  He applied for review with the commission but his review was equally turned down.  This drove him to appeal to the labour court in the appeal which is the subject of this judgment.

The grounds informing his appeal were stated as;

The commission grossly misdirected itself by treating appellant as an accounting officer and head of department during disciplinary proceedings.

Commission misdirected self by disregarding fact that accounting officer of Harare polytechnic did not issue detailed instructions on how appellant had to conduct his duty per Treasury Instructions

Commission erred by not considering that Accounting Instructions used had expired and had to be revised per Treasury Instructions.

Commission erred to hold appellant responsible for offences committed by his subordinate Mukozho contrary to Treasury Instructions.

Commission misdirected self to hold that appellant was responsible for the polytechnic safe keys and assets.

Commission erred by failing to note that the Harare Polytechnic Disciplinary Committee was biased against the appellant.

Commission erred when it upheld the disciplinary committee decision not to produce reports, affidavits by witnesses and other relevant documents for cross examination purposes.

Commission erred by failing to provide reasons for its ruling to appellant.

Commission misdirected self by not nullifying the unprocedural investigation by the Harare Polytechnic.

Commission erred to uphold disciplinary committee ruling that appellant did not follow proper proceeding upon becoming aware of the disappearance of the Harare Polytechnic funds.

Commission erred to uphold the disciplinary committee decision to dismiss appellant without taking into account his mitigatory circumstances.

In the result the appellant prayed that his appeal be allowed with cost and that he be reinstated to his original position without loss of pay or benefits or that he be paid damages in place of reinstatement.

In response to the appeal the respondent maintained that;

Appellant was not treated as an accounting officer and head of department but was only treated as an accountant at station level tasked with supervising his immediate subordinates.  His supervisory duties entailed ensuring that subordinates discharge their duties per proper accounting accounting procedures at station level.

Functions of accounting officer and accountant are structurally remote hence appellant was rightly treated as an accountant and supervisor.

The charges and determination of his matter were based on his being an accountant and supervisor of accounting assistants at Harare Polytechnic.  As a specialist he had to give guidance to his subordinates and to advise the principal on the proper accounting procedures.

Since Harare Polytechnic is a station there is no accounting officer hence instructions could not be issued from non existent officer at station level.  Appellant did not detail what he stated “detailed instructions” He could not be advised on how to conduct his duty as it was him who was supposed to give

guidance on finance issues. Ministry does have detailed accounting procedures.

Issues of expired instructions are not contextual.  Appellant was charged and found guilty premised on suspension that is negligence and incompetence in the execution of his supervisory duties. Accounting manual does not expire till new one is issued and are such new are issued yet.

Mukozho is yet to be charged and convicted, is still on the run but was not an accountant or head of accounts section or personnel at that station.  Appellant and Mukozho committed totally different acts.  Appellant had duty to ensure that funds were safe guided but failed to do so hence the charges.

Committee only recommends to the authority and did that, which decision commission upheld. Determination did not say that appellant responsible for supervision of accounting assistants who were using the safe keys.

No specifics of bias made hence difficult to comment on that.

All documentary evidence was given to appellant as attachments to the charge letter and appellant acknowledged receipt of same in writing.  Refusal to see them speaks to dishonest from person charged with administration of public funds.

Ignorance of regulations content by appellant is cause for concern and there no provision of what he expected from them.

Appellant did not specify basis of his argument that investigations were done unprocedurally hence cannot comment on that.

Appellant did not take corrective action till he was asked by his superiors to justify why he did not report the matter to them for corrective action to be taken.

Determinate and penalty are meted out by the authority not the committee.  Decision to dismiss was made after taking into account both the mitigatory and aggravatory factors of the matter.

In the result the respondent prayed that the appeal be dismissed with costs.

Appeals attacking the exercise of the discretion of a tribunal lower than the appellate one are to be disposed of as per the law as espoused in:-

Nyahondo v Hokoya and Others 1997 (1) ZLR 475 (SC).  The critical question to be answered in the case at hand is whether it can be said that the commission exercised its discretion improperly by finding that the appellant was indeed guilty of the infraction complained of and the attendant penalty which was meted out in his case.

It is also important to note that all the appeal grounds are intertwined and the decimated form in which they appear does not add on detracts anything from.  The over arching question is; Does the cumulative effect of all the facts of the matter and evidence led thereon demonstrate an abuse of discretion by the Commission. If so then that would be the licence for the setting aside of the decision. If not, then same has to be upheld.  Each of the grounds will be dealt with individually for clarity of record.

Ground 1

A reading of the records of proceedings on the matter that is the disciplinary committee record and that of the Commission speak volumes to the effect that the appellant was accused of failing in his supervisory role not that he was an accounting officer.  The court fails to appreciate where the argument that appellant was treated as a head or accounting officer stems from.  In the result the ground being misplaced should fail.

Ground 2

This ground is intricately linked to ground 1 and sentiments echoed in one above apply to it with equal force.  It should also fail.

Ground 3

The response by the respondent indicates clearly that the appellant was found wanting in relation to his supervisory role at the Harare Polytechnic hence the argument about the validity or otherwise of the instructions is neither here nor there.  In the ultimate the ground is this without merit and should also fail.

Ground 4

What is apparent from the facts of the case at hand is that indeed appellant worked with subordinates who were scheming and did breach the instructions and more so caused loss to the respondent.  That notwithstanding the question remains that; Did such absolve appellant from his supervisory role. The answer to that is surely in the negative.

It is apparent that by virtue of appellant’s training it was imperative on him to check the subordinates work and look out for the short comings as the ones that occasioned the loss that occurred.  Granted, he argues that he had done some checks on the close previous period but it was imperative on him by the nature of his function to look out for and be able to detect the kind of anomalies which gave rise to the charges in this case. The theft of criminal abuse or duty by his subordinates does not excuse his liability too.  The ground therefore also lacking in merit should fail.

Ground 5

A reading of the record does not indicate what this ground speaks to.  In fact what came out clearly about the safe keys and assets issues is that appellant was faulted for remaining mum after realising that the manner in which the asset and the safe keys had been handled was a recipe for loss of the respondent’s money and assets.  That lack which he exhibited in respect of the manner in which his criminally minded counterparts handled the assets leaves a lot to be desired when viewed from the perspective of his oversight role.  In the result it is also clear that this ground is not merited and it should fail.

Ground 6

The bias test was sent out in the case of Bailey v Health Professions Council Zimbabwe 1993 (2) ZLR 17 (SC) Apart from the mere say so by appellant there is nothing on the four corners of the record which demonstrates the alleged bias.  It is therefore difficult to agree with the appellant on his argument about bias.  This ground also lacks merit should fail.

Ground 7

A reading of the charge sheet and attendant addendum shows that indeed appellant was furnished with the relevant documents to his case.  His argument is thus not merited and it should accordingly fail.

Ground 8

A   reading of the Commission proceedings speaks to findings made by the Commission and basis for same.  In the court’s view that sets out with sufficient clarity how they arrived at the conclusion they reached.  The appeal ground is therefore not merited and it should consequently not succeed.

Ground 9

Sentiments echoed on the bias argument apply here with equal force and deserve no restatement.  The ground therefore should also fail.

Ground 10

As repeatedly indicated in the papers on file the appellants accusation stemmed from his failure to supervise properly and to notify his superiors timeously about the anomalies complained about.  The niceties about the dates which the appellant harped on at length are neither her nor there.  The argument advanced by respondent is that appellant did not act until the authorities called him to account is borne out by the record of proceedings at disciplinary committee level. Appellant conceded that he indeed become aware of the anomalies but for reasons known to him he did not act as expected from him.  The court is not persuaded that there was an abuse of discretion in this respect.  The ground should therefore also fail.

Ground 11

The importance of mitigation cannot be underscored enough.  The cases cited by appellant are all up to point but since there are apparent on the record they deserve no restatement.  A reading of the record of disciplinary committee proceedings is indeed silent on the appellant’s mitigation and aggravatory circumstances.  That being as it may the critical question is whether such can be taken to be fatal to the case.

The law is also clear that penalty is in the discretion of the employee see Circle Cement v Nyawash SC-6-03. Of particular note is that the case at hand speaks to conduct which ultimately resulted in loss of public funds.  It is the court’s considered view that no amount of mitigation facts would have been pursuasive to tilt the balance to a non dismissal penalty.  The court is therefore satisfied that there is not sufficient basis for it to interfere with the Commission’s discretion on this aspect.

In the ultimate all the facts of the matter demonstrate that the entire appeal is devoid of merit and it should fail.

IT IS ORDERED THAT

Appeal being devoid of merit in its entirety it be and is hereby dismissed with costs.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners