Betty Mabiza v Norwegian People's Aid

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/24/2022
HARARE, 27 SEPTEMBER 2021 &
28 JANUARY 2022
CASE NO LC/H/247/18
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/24/2022

HARARE,   27 SEPTEMBER 2021 &		   CASE NO LC/H/247/18

28  JANUARY  2022

In the matter between:-

BETTY MABIZA					APPELLANT

AND

NORWEGIAN PEOPLE’S AID			RESPONDENT

Before the Honourable Manyangadze  J

For the Appellant	 -      Mr P. Mutukwa (Legal Practitioner)

For the Respondent	-     Advocate R. Mabwe with R.R. Mutindindi (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of an Appeals Committee issued on 3 October 2017, which upheld the appellant’s dismissal from the respondent’s employment.

The facts forming the background to the matter are that the appellant was employed by the respondent as Finance and Administration Officer.  She was responsible for, among other duties, the custody, recording, and issuing of fuel coupons for the respondent’s vehicle fleet.  It is alleged that during the period 9 February 2015 to 12 June 2017, diesel coupons amounting to 660 litres could not be accounted for. It is also alleged that during the period 9 November 2012 to 12 June 2017, there was excessive use of petrol coupons against recorded mileage in the vehicles.

As a consequence of these allegations, the appellant was charged with misconduct, in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006. (the National Code).  The specific charges were;

Contravening s 4(d): theft or fraud.

Contravening s 4(f): gross incompetency or inefficiency in the performance of your work.

On 14 September 2017, a Disciplinary Authority appointed in terms of the National Code found the appellant guilty as charged.  It imposed a penalty of dismissal.

An appeal to the Appeals Officer was unsuccessful. On 3 October 2017, the Appeals Officer dismissed the appellant’s appeal in its entirety.  This led to the instant appeal.

The grounds of appeal are stated as follows:

“1,	The appeals authority erred in noting that the Disciplinary Authority had jurisdiction

to hear this matter in terms of SI 15 of 2006 after the period prescribed therein had lapsed.

2.	Further, the Appeals Authority further erred in holding that in terms of SI 15 of 2006 resuspension was possible.

3.	The appeals authority erred in coming to the conclusion that the employer has managed to prove its case on balance of probabilities where there is no evidence on record establishing or proving the commission of theft or fraud on a balance of probabilities on the part of the appellant.

4.	Further the Appeals authority erred in holding that all the essential elements of theft and fraud where established on a balance of probabilities or beyond reasonable doubt as required by law.

5.	Further the appeals authority erred in dismissing without justification for doing so the appellant’s contention that the procedure adopted by the authority was wrong and highly irregular.”

At the hearing of the matter, the appellant abandoned grounds of appeal 1 and 2. He maintained grounds of appeal 3, 4 and 5.

In respect of ground 5, the respondent raised the point that it was an attack on procedural issues. As such, it was not a proper ground of appeal.  Rather, it constituted a ground for review.

Indeed, the averment in ground 5 impugns “the procedure adopted by the authority “as being “highly irregular.” It is not an attack on the decision arrived at, but the procedure on method employed in arriving at the decision. This clearly disqualifies it as a ground of appeal. See Khan v The Provincial Magistrate & Anor HH 39/06.

It is significant to note that in his brief reply to the respondent’s submissions, the appellant did not controvert this averment.  It is well grounded in law.

Accordingly, ground of appeal 5 is struck off the record. This leaves grounds of appeal 3 and 4 for consideration.

Grounds 3 and 4 can properly be crystallised into one ground of appeal. They essentially are raising the same issue.  The averment is that there was no evidence on which   to convict the appellant of theft or fraud.

During oral submissions, Mr Mutukwa, for the appellant, contended that, on a balance of probabilities, the circumstantial evidence relied upon by the respondent could not support appellant’s conviction of theft or fraud.  The circumstantial evidence was solely based on her being the custodian of the coupons in question.  It was pointed out that there are many possibilities that could lead to the loss of the coupons, other than theft/fraud on the part of the appellant.  These include access by other members of staff to the office where the coupons were kept, loss during movement from one office to the other, or sheer inadvertence as appellant was extremely overwhelmed with work.

I did not hear the respondent strenuously controvert these submissions. I did not hear it argue that the appellant had sole and exclusive access to the office or storeroom where these coupons were kept. In these circumstances, the inference that she stole or defrauded the respondent is not the only one that can be reasonably drawn from the circumstantial evidence available. See  Muyanga v S  HH 79/13.

The respondent however, contended that the appellant focused on the first charge only, that of theft or fraud.  She did not argue her appeal in respect of the second charge, that of incompetence or gross inefficiency in the performance of her duties.  Indeed, both in her heads of argument and oral submissions made on her behalf, the appellant presented no case on the second charge. She fought her conviction on the first charge only.  Yet the Disciplinary Authority found her guilty on both charges.  The Appeals Officer upheld the conviction on both charges.

In her reply to this aspect of the respondent’s averments, the appellant made reference to her response to the initial misconduct allegations. She did so in a bid to show that she responded to all aspects of the allegations, not just theft or fraud.  The appellant in this regard, is going back to her response before and during the initial disciplinary hearing.   She loses sight of the fact that at this stage, she must deal with the appeal before this court.  Her grounds of appeal do not address the second charge.  She has not appealed against her conviction on that charge.  She has only appealed against her conviction on the first charge.  This leaves her conviction in respect of the second charge unchallenged.

Thus, whilst the conviction on the first charge is doubtful, having regard to the submissions made on circumstantial evidence, the conviction on the second charge remains intact.  It was not argued.  Even if it had been appealed, it would have been a tall order for the appellant to wriggle out of it. This is so in light of the concessions made during the disciplinary hearing.  She indicated that she did not record some transactions.  She pleaded a heavy work load for this failure.  There is no record of her having appraised her supervisors of these unrecorded transactions and the challenges of a burdensome workload. The anomalies were unearthed when she went off on sick leave. An audit revealed discrepancies that ran over a long period.

In the circumstances, the tribunal a quo cannot be faulted for finding the appellant guilty of gross in efficiency and incompetence in the performance of her duties.

In the result, the appeal succeeds in respect of the conviction on the first charge, but fails in respect of the conviction on the second charge.

On penalty, as correctly observed by the respondent, none of the grounds of appeal addresses the question of penalty. The appellant chose to challenge only the verdict, and that only in respect of the first charge.

In the absence of an appeal against penalty, the court is unable to determine on what basis the tribunal a quo misdirected itself.

Notwithstanding this fundamental omission, the respondent has made averments on the trite law on penalty. These averments are contained in paragraphs 8 to 16 of its heads of argument.  The essential point being argued therein is that it is the prerogative of the employer to determine the form of punishment to be meted out to an employee found guilty of misconduct. If the misconduct involves a breach of trust and goes to the root of the employment contract, the courts have little discretion in tampering with a penalty of dismissal. In this regard, the respondent cited well known authorities.  These include Circle Cement (Pvt)Ltd v Chipo Nyawasha  SC  60/03, Innscor Africa (Pvt) Ltd v Letron Chimoto  SC  6/12, Toyota Zimbabwe  v Richard Posi  SC  55/07.

In view of this, the partial success of the appeal against conviction as explained above, does not change the penalty. It does not provide a basis for interfering with the penalty of dismissal.

It is accordingly ordered that;

The appeal be and is hereby allowed in respect of the conviction on the first charge of misconduct.

The appeal be and is hereby dismissed in respect of the conviction on the second charge of misconduct.

The appeal be and is hereby dismissed in respect of the penalty.

Each party bears its own costs.

Mashizha and Associates, Appellant’s Legal Practitioners

Caleb Mucheche and Partners, Respondent’s Legal Practitioners