Sam Takavada v Health Service Commission

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/25/2024
ZIMBABWE HARARE, 24 OCTOBER
2023 & 30
CASE NO LC/H/445/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 OCTOBER 2023 & 30

JANUARY 2024

In the matter between:-

SAM TAKAVADA

HEALTH SERVICE COMMISSION Before

JUDGMENT NO LC/H/25/2024 CASE NO LC/H/445/23

APPELLANT

RESPONDENT

the Honourable Kudya J

For the Appellant	F. Chaipa (Legal Practitioner)

For the Respondent	W. Matsika (Legal Advisor) KUDYA, J:

This is an appeal against the decision of the respondent employer’s disciplinary authority which found appellant guilty of misconduct at work and dismissed him from employment.

The accusations against appellant were that he used to come to work drunk, verbally abused his workmates and altered duty roasters. He was said to have been given a prior warning which he breached when he committed the instant misconduct actions. He is unhappy with the guilty verdict and dismissal penalty hence the appeal which is the subject of this judgement.

The appellant’s appeal grounds were styled as such:-

Conviction was based on evidence that had a lot of inconsistencies.

Conviction was based on evidence of biased witnesses.

The allegation that he attended work drunk was baseless.

The disciplinary authority erred to convict appellant on the presumption that he verbally abused sister Mahembe without listening to appellant’s side of the story.

The accusation that he altered the duty roaster could not be substantiated yet he was convicted on its basis.

The disciplinary authority erred to convict appellant on the basis that he had failed to reform yet it did not look at appellants working environment and the already existing negativity in the working relations.

The disciplinary authority imposed a decision which was excessive and induces a sense of shock.

The disciplinary authority did not give due weight to the appellant’s vast mitigatory factor.

The disciplinary authority erred when it resorted to a retributive instead of a reformative sentence

In the result the appellant prayed that his appeal succeeds and that the disciplinary authority decision be set aside and substituted with an order reinstating him to his job without loss of salary and benefits or that he be paid damages in place of reinstatement.

In response to the appeal the respondent employer maintained that

Ground 1

The evidence on record has no inconsistences complained about and appellant has to substantiate his assertion

Ground 2 and 3

There is no evidence of bias against appellant and there is evidence that appellant was drunk at work. He failed to rebut that evidence.

Ground 4

All the allegations were proved and appellant altered the duty roaster and caused its disappearance a fact which he did not dispute.

Grounds 7 – 9

The disciplinary authority imposed a penalty which was appropriate in the circumstances.

In the result respondent submitted that appellant had no good case against the respondent and his appeal must be dismissed with costs.

It is settled that the appeal court should not lightly interfere with the exercise of discretion by the trier of fact unless it can be demonstrated that exercise of such discretion was grossly unreasonable. See Nyahondo v Hokonya and others 1997(2) ZLR 457 (S).

Each of the issues raised by the appeal is addressed below. For clarity of record the issues will be discussed under the following heads 1) drunk at work, alteration of duty roaster, abuse of other staff members, penalty.

Drunk at work

A reading of the record of proceedings demonstrates clearly that the drinking allegations did not only emanate from the appellant’s workmates but also from the village head. No good explanation was given as to why all these people would team up against appellant. It need be noted that proof in labour matters is proof on a balance of probability. See ZESA v Dera 1998(1) ZLR 500(S). The evidence led from appellant’s workmates and the head show that indeed appellant was coming to work drunk. The court therefore does not find any fault in the reasoning of the disciplinary authority in that regard. The appeal premised on the grounds of drunkenness at work should therefore fail.

Alteration of duty roaster

A reading of the record of proceedings also shows that appellant conceded to having a hand in the disappearance of the duty roster and alteration of the same. The disciplinary authority can equally not be faulted for finding him guilty in that regard. The appeal also fails on this rung. Abuse of other staff members

It is on record that appellant was witnessed on video in an altercation with one of the nursing sisters. That indeed gives evidence to his poor working relations with the other members of staff. The court thus has no reason to ask that the verdict be vacated under this rung.

Penalty

Under this head the appellant stated that he was withdrawing the ground which stated that mitigation was not taken into account seriously since no such was elicited from him. It is granted that it is important for a disciplinary body to entertain mitigation from an accused employee. It however need be noted that such notwithstanding the prerogative to discipline lies with the employer. To that extent where the employer takes a serious view of the infraction dismissal cannot be read to be outrageous. See Nyawasha v Circle Cement SC-60-03. In the case at hand it is clear that appellant was on a written warning for similar conduct to the extent that the disciplinary authority cannot be faulted for concluding that he was not willing to reform hence the dismissal penalty.

In the ultimate it is clear that all the appeal grounds are without merit so the appeal should accordingly fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed. Each party to bear own costs.

Mugiya Law Chambers, Appellant’s Legal Practitioners