Sifiso Hlongwane v The Permanent Secretary, Ministry of Higher and Tertiary Education and The Chairman, Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/777/14
HELD AT HARARE ON 8th SEPTEMBER, 2014
CASE NO. LC/H/777/13
AND 21ST NOVEMBER, 2014
JUDGMENT NO. LC/H/777/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/777/14

HELD AT HARARE ON 8th SEPTEMBER, 2014   CASE NO. LC/H/777/13

AND 21ST NOVEMBER, 2014

In the matter between:-

SIFISO HLONGWANE						Appellant

And

THE PERMANENT SECRETARY,

MINISTRY OF HIGHER AND

TERTIARY EDUCATION					1st Respondent

And

THE CHAIRMAN, CIVIL SERICE COMMISSION	2nd Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. T. Katsuro (Legal Practitioner)

For Respondent: 	Ms. K. Warinda with

Ms. C. Garisanheta (Civil Division of the Attorney General’s Office)

MHURI J.:

Appellant was employed as a lecturer under the Ministry of Higher and Tertiary Education.  He was stationed at the United College of Education in Bulawayo.

Sometime in 2011, Appellant was charged with and found guilty of an act of misconduct (demeaning and undermining the authority of the principal).

Consequently, in terms of Section 50(i) of the Public Service Regulations, 2000 Statutory Instrument 1 of 2000 (The Regulations) the Disciplinary Authority imposed a penalty of a transfer.  Appellant was transferred from United College of Education to Seke Teachers’ Training College in Harare.

It is common cause that Appellant did not take heed of the penalty.  He did not report for duty as ordered.  Appellant absented himself as from the 28th September, 2011 to the 8th January, 2012.

It was as a result of this absence that Appellant was charged with another act of misconduct of absence from duty without good cause.

By a letter dated 15th August, 2013, Appellant was found guilty and was dismissed from employment, it having been found that he had absented himself from duty without authority.

Aggrieved by the Disciplinary Authority’s determination, Appellant filed this appeal on three (3) main grounds that:-

The Disciplinary Committee grossly erred when it found the Appellant guilty of absence from duty without authority, without considering whether or not there was good cause for such absence.

The Disciplinary Committee grossly erred when it concluded that the Appellant was not entitled to be timeously notified of and have his transfer planned.

The Disciplinary Committee grossly erred when it failed to consider Appellant’s mitigating circumstances before meting out the punishment of dismissal.

It was Appellant’s submissions that there was good cause for Appellant to absent himself.  These were that:-

He was acting on the advice (wrong though) of his legal practitioner.

That there was no timeous notification to transfer.  The transfer was unprocedural as it contravened Section 13(3) of the Regulations.

That the order to transfer was not lawful and therefore he was not obliged to obey it.

Appellant submitted that the Disciplinary Committee did not consider all this.

It was also submitted that the Disciplinary committee did not consider mitigation as Appellant was not given an opportunity to address it in mitigation.

Appellant relied on the case of

MHOWA V. BEVERLY BUILDING SOCIETY 1998 (1) ZLR 546

in which “reasonable cause” was discussed.

In his oral submissions and responses before the Disciplinary Committee Appellant stated various reasons why he did not report for duty at Seke Teachers’ Training College.

At first he said

The United College owed him two (2) months’ salary so he could not leave without being paid.

He had no accommodation in Harare.

He was given short notice to leave the College.

He was packing his goods.

He was not provided with transport.

He had not been cleared by United College.

Later he said

He was working on his appeal and was advised by his lawyer to wait for his appeal.

From all the various reasons proffered can the Disciplinary Committee be faulted for finding Appellant guilty of absenteeism without authority, certainly not in my view.  The last reason that, he was acting on the advice of his lawyer cannot exonerate Appellant as this reason was only given at the very last and after a leading question had been asked by a member of the Disciplinary Committee.

All the reasons Appellant gave in the first place are moral excuses and contradict each other, for example to say I did not go because I did no have transport and accommodation and on the other hand to say I did not go because I did not have was packing my goods, (packing goods for 3 months and when you have no transport and accommodation) and also then to say I did not go because I was waiting for my money.

The Mhowa case relied upon by Appellant is distinguishable from this case.  In that case, there was only one reason that was in issue – acting on the wrong legal advice whereas in casu, there are several and conflicting reasons in issue.  On that note that case cannot absolve Appellant.

Appellant also submitted that the transfer, was not lawful as it was not done in compliance with Section 13(3) of the Regulations.

Subsection 3 provides:-

“Every transfer shall –

Be planned to minimize discomfort on the part of the member concerned and his family; and

Be notified timeously to the member concerned, who shall be provided with all necessary information relating to the transfer.”

Sub-section 4 provides for transfers as a punitive measure pursuant to disciplinary proceedings.  It reads:-

“No transfer shall be used as a punitive measure except pursuant to the disciplinary procedures provided in Part VIII”.

It is clear therefore from the Regulations that there are two types of transfer which can be effected on a member, the ordinary/normal transfer and a punitive transfer.

In casu, Appellant was transferred pursuant to disciplinary proceedings where he was found guilty of demeaning the principal of the College.  In that case, the Disciplinary Authority imposed a penalty of transfer (Section 50(1) (i) of the Regulations).

Appellant’s argument was that, be that as it may, this transfer, it being a transfer ought to have been planned, and Appellant ought to have been timeously notified and provided with the necessary information.

I am persuaded by Respondent’s submission that this transfer since it was not the ordinary type of transfer, Sub-section (3) does not apply.  As this was a punitive measure the Disciplinary Authority was not bound by the provisions of Section 13.

It would defeat the whole purpose of it being punitive if a member were to be given notice, transport and all the necessary requirements to minimize discomfort to him.

There would be no difference between a member whose transfer is not punitive and the one whose transfer is punitive if the requirements provided in Section 13 are provided to the latter member.

Appellant’s other bone of contention was that he was not given an opportunity to mitigate. Whilst this may be so, do the Regulations provide for that?

Section 46(3) of the Regulations does not provide that a member be heard in mitigation.  This right was taken away by the repeal of Section 19(3) of the 1986 Regulations, Statutory Instrument 161 of 1986.  This section read:-

“where, in terms of subsection (1), the officer is found guilty of misconduct, the Commission shall –

Notify the officer of the finding that has been made; and

Permit the officer to make written representation to the Commission within seven days concerning any penalty which may be imposed upon him; and

Upon consideration of any representations made by the officer in terms of paragraph (b), proceed to… determine the penalty...”

Section 46(3) of the current Regulations Statutory Instrument 1 of 2000 now reads:-

“where the disciplinary authority determines that a member is guilty of misconduct, the disciplinary authority shall –

proceed to determine the penalty to be imposed upon the member; and

Notify the member …of its determination and penalty imposed…”

The right to mitigate having been taken away, the Disciplinary Authority cannot be faulted for not asking for representations in mitigation.

Overally the appeal cannot be allowed.  Accordingly, it is ordered that it be and is hereby dismissed.

Munyaradzi Gwisai and Partners–Appellant’s Legal Practitioners

Civil Division of Attorney General’s Office–Respondent’s Legal Practitioners