Shingairai T. Chokuona v City of Masvingo

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/MS/05/2013
HELD AT MASVINGO ON 28 NOVEMBER, 2012              CASE NO. LC/ MS/06/2012
In the matter between




SHINGAIRAI T. CHOKUONA                               –           Appellant
And

CITY OF MASVINGO                                     –           Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant       - W. Makumire(Unionist)
For Respondent      - R.S. Makausi Legal Practitioner)


MATANDA-MOYO, L.

        This is an appeal against the ruling by the Appeals Committee dismissing

Appelklant from employment. The appeal was devoid of merit and I dismissed

the Appeal on the day of hearing indicating reasons would follow. These are

they:



        From the submissions made Appellant was admitting to committing the

misconduct offences. It is not her submission that she was wrongly convicted.

Her complaints are that;



        1) She was denied representation on the date of hearing

        2) There was improper splitting of charges and

        3) The penalty was excessive in the circumstances
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       Firstly Appellant complained that she was denied representation during

the initial hearing. Appellant submitted that the hearing was adjourned so that

she could seek medical evidence on the state of her mind during the hearing.

However this turned out to be only supported by evidence from the bar from

the Appellant’s representative. There was no such proof on file. Appellant did

not allege that when her application for adjournment was dismissed on the

second appearance, she failed to represent herself fully.



       Let me then remind representatives that appearing in court should not be

for purposes of fabricating issues.     Representatives should be honest with

clients and bring before court relevant and proven grounds. The ground which

Appellant sought to introduce on appeal was an after thought. Appellant tried

to save her job at all costs.



       The brief facts are that Appellant was employed by Respondent as an

Acting Sister in charge based at Runyararo Clinic at Masvingo. The Appellant

withdrew drugs from Runyararo Clinic on 11 October 2010 and dispensed such

drugs to Kufonya Primary School in Gutu without authorization from her

employer. As a result she was charged with;

       1) Contravening section5.4.7 of Respondent’s Code that is to say misuse

          of council property;

       2) Contravening section 5.5.3 of the Code that is to say gross

          unsatisfactory work performance;

       3) Conflict of interest in contravention of section 5.5.5 of the Code

       4) Fraud in contravention of section 5.5.7 of the Code and


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      5) Embezzlement in contravention of section 5.5.9 of the Code Appellant

         appeared before a disciplinary hearing which convicted her on all

         charges and dismissed her from employment. She appealed within

         and the appeal was dismissed. She then appealed to this court on the

         stated grounds.



      I have already dealt with the first ground of appeal. Appellant was never

denied access to representation.       Postponements were made by her

representative.   The representative chose not to attend the proceedings.

Appellant cannot rely on the negligence of her representative to claim that she

was denied representation.



      Appellant submitted that there was improper splitting of charges.       I

agree. All the charges emanated from the simple act of dispensing drugs to

Kufonya Primary School without the Respondent’s authority.



      However Appellant was guilty of a misconduct for which the penalty of

dismissal is appropriate. Aggravating is that the drugs were given to a person

not allowed to handle such drugs. The Headmaster of Kufonya Primary School

transported the drugs against the law. The offence committed by Appellant

involves dishonestly and goes to the root of her employment contract with the

Respondent.



      I am satisfied that Appellant’s dismissal from employment was proper in

the circumstances.




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                                                    JUDGMENT NO. LC/MS/05/2013


In the result the appeal is dismissed with no order as to costs




Z.C.T.U – Appellant’s Representative

Chihambakwe, Makonese and Ncube – Respondent’s Legal Practitioners




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