Tapiwa Chigwende v Civil Service Commission (Ministry of Primary & Secondary Education)

### Preamble
REPORTABLE
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/163/2020
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REPORTABLE

IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/163/2020

HARARE, 02 JULY 2020			     	 CASE NO. LC/H/562/16

AND 17 JULY 2020

Tapiwa Chigwende						Appellant

Civil Service Commission					Respondent

(Ministry of Primary & Secondary Education)

Before Honourable G. Musariri, Judge

For Applicant			- Ms K. Mukanhairi, Attorney

For Respondent			- Mr C Chitekuteku, Officer

MUSARIRI, J:

Appellant appealed to this Court against his discharge from employment by Respondent.  The ground of appeal was worded as follows,

“The decision by respondent to uphold my discharge was misplaced because it was based on a wrong admission of guilty which was made at the behest of the disciplinary committee which misled and pressurised the respondent to admit what he had not done.  The admission did not consider the mitigatory issues tendered by the appellant.”

In addition Appellant filed Heads of Argument in support of his appeal.  The Heads declaimed thus,

“2. It shall be contended on appeal that the offense that the Appellant was convicted of did not warrant discharge from the service as the sentence.

3. The Disciplinary Authority did not consider the mitigatory circumstances proffered by the Appellant in coming up with the sentence.

4. The Disciplinary Authority also ought to have considered that Appellant was a first offer (sic) and had served the Respondent for more than nineteen years.”

Indeed in oral judgment Appellant’s attorney abandoned the ground that Appellant had been wrongly convicted.  Instead she confined the appeal to the ground that the penalty of discharge was unwarranted in the circumstances.  In addition Appellant relied on Respondent’s Circular Ref C/216 dated the 31st January 2017.  She argued that the Circular classified the offence in casu as a minor offence requiring the penalty of a reprimand on first breach.

Respondent opposed the appeal.  They filed Heads of Argument.  The relevant portion maintained that,

“4. It is our humble submission that the penalty imposed by the Disciplinary Authority met the justice of the case.

5. According to Section 50 (1) of the Public Service Regulation, it is provided that

‘Where a disciplinary authority determines that a member is guilty of misconduct the disciplinary authority may impose one or more of the following penalties’.

6. In light the above provision it is our humble submission that the use of the word ‘may’ shows that the Disciplinary Authority has discretionary power over penalties.”

A ‘discharge ‘ is one of the penalties provided by the said Regulations.  On that basis Respondent implied that it properly exercised its discretion on penalty considering the facts of the case.  Appellant worked for it as a Teacher.  He received cash from pupils which he was supposed to hand over to the school.  However he converted various amounts to his own use.  The amounts in question are us$38.00 and us$49.00 respectively.  Appellant’s conduct effectively amounted to theft which is invariably penalised by a discharge.  That was the gist of the Respondent’s stance.

In rebuttal Appellant insisted that Respondent’s said Circular classified the   Appellant‘s conduct as a minor offence despite the dishonesty it entailed.  She argued that the offense fell under the offence defined as,

“Minor misuse of Government property (financial and material) maximum value USD50”.

With due respect, Appellant fell into error.  The Circular specifically places “theft” under the category of Gross Misconduct.  Paragraph 6 of the Category reads,

“6. Theft of public property or funds or embezzlement or failure to account for public funds and property”. (The underlining is for emphasis).

A discharge is one of the prescribed penalties for such offence.  The position is buttressed by the precedent quoted by Respondent.  That is the case of 		 Circle Cement v Nyawasha SC 60/03 wherein Malaba JA (as he then was) at p 5 ruled that,

“Once the employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of the contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee”.  (Underlining is for emphasis.)

Further and in any event the said circular was issued well after the offence and discharge in casu.  So it is effectively inapplicable.

Comparing the parties’ cases, I am persuaded by Respondent’s argument.  Once Appellant took the payment from the pupils the monies became public funds in his custody.   He then converted part thereof to his own use.  Respondent, as with most employers, takes a serious view of such misconduct.  That is why its Circular C/216 placed “theft” in the category of Gross Misconduct.  The prescribed penalty under the Circular is a discharge from service.  Nothing was pleaded or proved which warrants departure from the prescribed penalty.  Appellant merely relied on his mistaken take of the said Circular.  I therefore conclude that the appeal lacks merit and ought to be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E