Alexio Manyati v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/823/14
HARARE ON 25th NOVEMBER, 2014
CASE NO. LC/H/174/13
19 TH
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/823/14

HARARE ON 25th NOVEMBER, 2014		            CASE NO. LC/H/174/13

AND 19TH DECEMBER, 2014

In the matter between

ALEXIO MANYATI       			–	Appellant

And

PUBLIC SERVICE COMMISSION	–	Respondent

Before The Honourable L.M. Murasi, J.

Appellant 	    :	In Person

For Respondent :	Mr C. Karinga (Law Officer)

MURASI, J.

Appellant was employed as a teacher at Rwizi Primary School. Following allegations of misappropriation of funds, Appellant was dismissed from employment. He has approached this Court for relief. Appellant’s main ground of appeal was that he was not heard when Respondent made the decision to dismiss him. Appellant further alleges that the Respondent did not state the amounts that he was supposed to pay back to the school 	.

At the commencement of the proceedings the Court brought to Appellant’s attention the record showing the proceedings that were held in his absence. The record shows that Appellant was invited to attend a hearing. Appellant declined to attend the hearing stating in his response that Respondent could proceed on the basis of the responses he had made to the allegations. It is trite that where a man has two courses open to him and he unequivocally takes one, he cannot afterwards turn back and take the other. Appellant clearly made the decision not to attend the hearing. He cannot be heard to state that he was not heard and that his right to be heard had been infringed. Indeed Appellant took a calculated risk in having the matter proceed in his absence. The Disciplinary Committee thereafter went on to evaluate Appellant’s response against the charges preferred against him. The Committee went on to find the Appellant guilty.

Appellant has averred that the Public Service Commission indicated in its letter of dismissal that he was to pay unspecified amounts. This is not correct. A reading of the record shows a different picture altogether. The letter written to the Appellant informing him of the charges that he faced, specified various amounts he was alleged to have embezzled. The findings of the Disciplinary Committee specify the individual amounts that he is alleged to have misappropriated. The Court finds that Appellant was properly convicted.

As regards the penalty of dismissal, the issue is whether a reasonable employer would have dismissed the Appellant. The record shows that Appellant was unable to account for the school funds, he was unable to maintain the cash book. Appellant has not shown any remorse in the circumstances. Appellant did not attend the hearing. He did not offer to restitute the missing amounts. It is my view that a reasonable employer would have dismissed the Appellant in the circumstances.

In conclusion the Court finds the appeal to be devoid of merit and it is accordingly dismissed with no order as to costs.

Civil Division of the Attorney General’s Office – Respondent’s legal practitioners