Tamuka Chizengeni v Ministry of Home Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/200/2014
HELD AT HARARE ON 18 MARCH, 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/200/2014

HELD AT HARARE ON 18 MARCH, 2014			CASE NO. LC/H/383/2012

& 28 MARCH 2014

In the matter between:-

TAMUKA CHIZENGENI						-	Appellant

And

MINISTRY OF HOME AFFAIRS					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr. T. Katehwe (Legal Practitioner)

For Respondent 	-	Mr C. Chopamba(Legal Practitioner)

CHIVIZHE, J.

The Appellant was employed by the Respondent in May 2009 as an Assistant Processing Officer.

He was arraigned before a Disciplinary Authority and was found guilty of ‘any act, or omission which is inconsistent with or prejudicial to the discharge of his official duties as per Paragraph 24, First Schedule of the Public Service Regulations of 2000, as amended.  He was consequently discharged from service.

The Appellant mounted an appeal against his dismissal to the Labour Court.  In a judgment Ref LC/H/458/12 on 14 December 2012 this court set aside the penalty and directed the Respondent’s Disciplinary Authority to reconsider the appropriate penalty after hearing both parties representatives on mitigatory and aggravating factors.  On the 3rd of May 2012 the Respondent’s Disciplinary Authority after considering Appellant’s mitigatory factors returned the penalty of discharge from service.  Dissatisfied the Appellant noted the present appeal.

The appeal was noted on the basis of the following grounds;

The Disciplinary Authority erred by imposing a penalty which is not proportionate to the offence.  A first written warning could have met the justice of the case.

The Disciplinary Authority misdirected itself by imposing the penalty of dismissal without hearing the Respondent’s aggravating factors.

The Disciplinary Authority erred by merely paying lip service to the weighing mitigatory factors highlighted by the Appellant.

The Disciplinary Authority erred by taking the discharge which had been set aside by the Labour Court as a starting point in considering the Appellant’s mitigation.

The Disciplinary Authority misdirected itself by placing reliance on an article penned by TawayiMusakaruka, a person who is clearly not a legal authority.

The Appellant’s counsel prefaced his submissions by raising a preliminary point.  The point was that there was no proper notice of response before the court as the one filed by the Respondent does not comply with Section 15(2)(a) of the Labour Court Rules, 2006.

The Respondent’s position was that whilst the notice of response filed does not compy with the Rules in that it is in a different form to the form LC2 prescribed under the Rules it was Respondent’s view that this was not a fatal omission.  The approach in the Labour Court generally is that the court is reluctant to resolve issues on technicalities.  On that basis the court was urged to disregard the point and determine the issue on substance.

Rule 15(2)(a) of the Labour Court Rules, 2006 provides that the Respondent must complete in three copies a notice of response to the appeal in Form LC2.  The Respondent’s response clearly has not been filed in Form LC2.  Instead, the Respondent filed a lengthy affidavit by the Registrar General, MrTobaiwaMudede, in which he attests to the circumstances surrounding the commission of the alleged misconduct. I condoned the departure from the Rules in this case because the appeal was raising a crucial point that had to be ventilated before the court.

On the merits it was clear, after hearing arguments, that the Respondent did commit a gross irregularity warranting interference by this court.  The Appellant submitted that after the matter was remitted back to the Respondent Disciplinary Authority to reconsider penalty after hearing both parties representatives on mitigatory or aggravating factors, the Appellant had on the 9th of April, 2013 made his submissions in mitigation of penalty.  The Respondent’s representatives on the other hand did not address the Disciplinary Authority in aggravation.  On the 3rd of May 2013 the Disciplinary Authority then handed down its determination that the issues raised in mitigation did not warrant a reversal of the determination.  The Disciplinary Authority then consequently re-imposed the penalty of discharge from service.

The Respondent counsel did not dispute the averment made.  It was counsel’s submission that on the basis of the facts in the record the aggravatory clearly outweighed the mitigatory factors and the penalty of discharge from service was properly arrived at by the Disciplinary Authority.

I was satisfied that there was a valid basis for interfering with the decision of the Disciplinary Authority.  It was very clear from their decision the body did not take into account aggravatory factors before arriving at a decision.  The body did however consider mitigatory factors and dismissed them.  The Disciplinary Authority was however obliged to consider mitigatory factors as well as aggravatory factors.  Against that background, I concluded that the Disciplinary Authority having failed to comply with a directive by the court as issued in Judgment No. LC/H/458/12 their decision could not stand.  That decision was consequently set aside.

Having set aside the decision of the Disciplinary Authority the court was faced with two options either to remit the matter back to the Disciplinary Authority for them to comply with the order to reconsider penalty after receiving evidence of mitigation and aggravation from both parties OR for the court to proceed in terms of Section 12B(4) of the Labour Act [Cap 28:01].  Taking into account that the matter has been pending in the court since 2012 and the need to bring finality to litigation the court opted for the latter option.  The parties were consequently invited to address the court in mitigation and aggravation.

It was submitted on Appellant’s behalf that he is a first offender; he was remorseful and had tendered an unequivocal apology for his conduct to the Disciplinary Authority; he had been acting in the employer’s interest when the alleged misconduct took place; he had a length of service of two years with employer at the material time; he is a married man with four children.  The court was urged to consider awarding a reprimand or a first written warning as provided under the Public Service Regulations, 2000.

On Respondent’s behalf it was submitted that contrary to his assertions the Appellant did not tender an apology.  The record will show he was made to apologise.  He was therefore not remorseful.  The facts of the matter involved element of dishonesty – he had used another employee’s password.  He had shown a propensity to be dishonest which is undesirable in the relevant department which is a high security department where passports are issued.  He could not be transferred to another department because of his qualifications.  In regard his personal circumstances it was submitted that he ought to have, in view of the fact that he is a family man, desisted from such acts of misconduct, which could result in the loss of a job.

The Appellant committed a very serious act of misconduct. He deliberately used another employee’s password to enter into the Respondent system. That was an act of dishonesty which undermines the relationship between the employer and the employee and goes to the root of contract of employment. The mitigatory factors raised are clearly outweighed by the aggravatory features of this case. The only appropriate penalty for the misconduct is discharge from service as provided under Section 50 of the Public Service Regulations, 2000.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

The Appellant shall remain discharged from service.

Tadiwa& Associates, appellant’s legal practitioners

Thondhlanga& Associates, respondent’s legal practitioners