Webster Mudzingwa v Minister of Primary & Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/390/2016
HARARE, 10 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/390/2016

HARARE, 10 MAY 2016			          	       CASE NO. LC/H/1106/15

AND 23 JUNE 2016

In the matter between:-

WEBSTER MUDZINGWA							Appellant

And

MINISTER OF PRIMARY & SECONDARY N.O.			Respondents

EDUCATION & ANOR

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mrs C. Mahlangu (Legal Practitioner)

For Respondents		Mr H. Magadure (Law Officer)

MAXWELL, J

This is an appeal against the decision of the Disciplinary Authority dated 9 October 2015.  Appellant was employed as a Deputy Head Master stationed at Bromely Primary School, Goromonzi District in Mashonaland East.  He was charged of misconduct on 14 December 2014 in terms of Section 44 (2) of SI 1/2000.  He appeared before a disciplinary Committee and was found guilty of

failure to receipt $200 and registration of students from a private school without the authority of the provincial Education Director;

failure to account for $25,00; and

using $100 before banking.

The disciplinary authority passed a sentence of

demotion of the appellant to the grade of senior teacher with effect from 1 January 2016.

transfer of appellant to Dhuke Dam School in Mutoko.

that appellant should not be considered for promotion to 31 December 2017; and

a repayment of $25 that appellant failed to account for.

Appellant was aggrieved and noted an appeal to this Court on 15 December 2015 on the following grounds.

The Disciplinary Authority erred and seriously misdirected itself in finding that the evidence given by the Appellant was contradictory when he explained the circumstances surrounding the failure to receipt the $200.00 received from Fanta College and also erred in refusing that explanation.

The Disciplinary Authority erred in finding the appellant guilty of failure to account for $25.00 an allegation not appearing in the charge letter and arrived at due to lack of evidence on the allegation the appellant was facing.

The Disciplinary Authority erred and seriously misdirected itself in finding the appellant guilty on allegations of using money before banking without taking into account the explanation he gave which was not disputed by any of the witnesses.

The Disciplinary Authority grossly erred in ordering that the appellant be transferred in circumstances which are grossly unprocedural, unfair and unlawful.

The Disciplinary Authority erred and misdirected itself in ignoring the submission made by the appellant that the charges were unnecessarily split which resulted in the appellant being punished more than once on allegations coming from one act or omission.

Alternatively

The Disciplinary Authority erred and misdirected itself in meting a penalty of transfer demotion, restitution and that he was not going to be promoted which is four fold and very severe in the circumstances arrived at without taking into account mitigation factors submitted by the appellant in the hearing.

In response respondents submitted that appellant contradicted himself when he gave different reasons for not receipting the $200.00.  They further stated that in terms of section 46 (4) of SI 1/2000 as amended, it is competent for a disciplinary authority to find a member guilty of an act of misconduct other than the act which the member was  originally alleged to have committed if the facts disclose such other acts.  Respondents also stated that regulations explicitly state that money cannot be used before it is banked.  In addition, they stated that the transfer of the appellant was fair considering that the offence committed warrants a discharge.

Ground of Appeal 1

Appellant’s heads of argument state that the $200 was not receipted because at the time of receipting the money the school did not have a book for donated finds.  Further that besides that necessity pushed him to spend the money the same day it was received.  However in his response to questions and allegations on financial issues dated 7 July 2013 appellant never mentioned the issue of the school not having a book for donations.  In any event the money was not for donation as it was paying for a service the school would provide.  Nothing precluded the receipting and use of the money on the same day.  The Disciplinary authority cannot be faulted for finding as it did.  I therefore find no merit in the first ground of appeal.

Ground of Appeal 2

Appellant argues that as the charge letter was speaking of failure to account for $200, it is incompetent for the Disciplinary Authority to find him guilty of failing to account for $25.00.  It is noted that Appellant was legally represented during the disciplinary proceedings.  There is no prejudice to the Appellant that was referred to as the appellant had opportunity to account for $200.  Counsel for appellant referred to authorities that state that elementary tenets of natural justice must be complied with and that it is incompetent for an employee to be dismissed on the basis of a conviction on a charge which he was not originally charged with.  I find the authorities referred to distinguishable on the basis that none involved the Public Service Regulations SI 1/2000.  The said regulations state in section 46 (4) that

“It shall be competent for the disciplinary authority to find a member guilty of an act of misconduct other than the act which the member was originally alleged to have committed if the facts disclose such other act.”

The committee was therefore in compliance with SI 1/2000 and their finding cannot be faulted.  I find no merit in the second ground of appeal.

Ground of Appeal 3

Appellant argues that it would be absurd to bank an amount of $100 because the bank charges will reduce the amount and defeat the purpose and interests of the school.  Further that he made consultations before using the money to buy date stamps.  Appellant did not comment on the submission by respondents that the Administration and Finance Circular 6 of 1994 explicitly states that money cannot be used before it is banked.  The Circular does not give the accounting authority discretion on when to bank and when not to bank.  That the appellant exercised a discretion he did not have is clear from the facts of the matter.  The Committee’s finding therefore cannot be faulted and I find no merit in the third ground of appeal.

Ground of Appeal 4

Counsel for appellant submitted that appellant’s transfer should have been in compliance with paragraph 13 of SI 1/2000.  The said paragraph states that every transfer shall be planned to minimize discomfort on the part of the member concerned and his family.  The transfer in terms of paragraph 13 of SI 1/2000 is to be notified timeously to the member concerned who shall be provided with all necessary information relating to the transfer.  Counsel referred the court to the case of College Lecturers Association of Zimbabwe and 18 others v the Permanent Secretary (Ministry of Higher and Tertiary Education) LC/H/345/12 in which the position advocated for by Counsel was upheld.

With due respect I am of a different view.  Paragraph 13 of SI 1/2000 regulates a normal transfer.  A transfer as a penalty to misconduct cannot be said to minimize discomfort.  A penalty is never meant to make the recipient comfortable otherwise it ceases to be a punishment.  In terms of Section 50 (l) (i) and (j) a person convicted of misconduct may be transferred.  Such transfer will be a punitive measure which is allowed in section 13 (4) of SI 1/2000.  I find no merit in the fourth ground of appeal.

Ground of Appeal 5

Appellant argued that the splitting of charges had the effect of magnifying the offences which appellant was facing giving a higher level of blameworthiness and punishing appellant twice for a single offence.  This ground of appeal is improper as it is raising a procedural issue.  Procedural issues are dealt with on review and therefore it is improperly raised on appeal.  In any event appellant was found guilty of only three charges.  Appellant has not demonstrated that the three charges he was found guilty of had been improperly spilt.  I therefore find no merit in this ground as well.

Ground of Appeal 6

Appellant argued that the penalty meted was too harsh in the circumstance.  It is trite that the penalty to be meted in a particular case is at the discretion of the employer unless it can be demonstrated that the penalty was decided upon in circumstances where the facts of a particular case dictate otherwise.  See Malimanji v CABS 2007 (2) ZLR 77.  It is also trite that an Appellate Court will not interfere with the exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.  See Innscor Africa (Pvt) Ltd v Chimoto SC 6/12.  Section 50 (1) of SI 1/2000 clearly states that a disciplinary authority may impose one or more of the penalties listed therein.  Appellant has not pointed to any misdirection on the part of the disciplinary authority.  There is therefore no merit in this ground of appeal.

Consequently the appeal cannot succeed and the following order is appropriate;

The appeal be and is hereby dismissed with costs for lack of merit.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners