Chikomba Rural District Council v Martha Mudzana

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/90/24 HARARE, 1 DECEMBER, 2023
CASE NO. LC/H/86/21-1
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/90/24 HARARE, 1 DECEMBER, 2023		CASE NO. LC/H/86/21-1 AND 5 MARCH 2024

CHIKOMBA RURAL DISTRICT COUNCIL	APPELLANT

Versus

MARTHA MUDZANA	RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- Mr H. Mutasa (Legal Practitioner)

For the Respondent	- Mr T. Nyamucherera (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the exemptions committee for the National Employment Council for Rural District Councils where the respondent employee was found not guilty of the misconduct complained about by the appellant employer and reinstated to her job without loss of salary and benefits.

The appeal raises 2 appeal grounds to the effect that the committee determined the matter on the erroneous basis that the absence of material gain on the part of the employee meant that the elements of the charge of Fraud had not been satisfied and that the committee erred by determining that the employer’s failure to demonstrate how the employee would benefit from the misrepresentation meant that the employer had failed to prove the charges that had been laid against the employee.

In the result it prayed that the appeal be allowed with costs and that the committee’s determination be set aside and substituted by an order dismissing the appeal which had been filed by the employee. In response to the appeal the employee maintained that;

The tribunal was correct to hold that the charge of Fraud had not been satisfied since there was no material gain on the employee’s part. The Fraud charge as set out in the Code of Conduct explicitly state that there should be material gain yet on the facts of the matter at hand there was no material gain and the revenue clerk to whom the money was handed confirmed that the employee handed the correct amount of money.

The tribunal was correct in determining that the employer’s failure to prove how the employee was to benefit from the misrepresentation meant that the employer had failed to prove the charge of Fraud on a balance of probabilities since it was not possible for the employee to access the moneys since her only duty was to collect revenue and hand over to the revenue clerk who was responsible for mastering the money handed over to him.

In the result the employee prayed that the appeal be dismissed with costs and that the determination of the exemptions committee be upheld. It is settled that courts are slow to interfere with the decisions of a trier of fact unless gross unreasonableness in the exercise of discretion by the trier if fact is demonstrated. See Hama v NRZ 1994(1) ZLR 217(5).

In the matter at hand the critical question to be answered is whether it can be said that the exemptions committed erred grossly by upsetting the guilty verdict and dismissal penalty meted out on the employee when it accepted that absence of evidence of material gain militated against the conclusion that the employee had committed Fraud.

Before answering the above question it is important to put the facts of the mater in their correct perspective. A reading of the papers filed of record shows that the employee was charged with Fraud it being alleged that she handed over to the revenue clerk money which she had collected but received a receipt where that money was under receipted.

It was observed that at the relevant time there was a trend at the council where the collected money would not tally with the receipted money. Such gave rise to the suspicion that the employee was acting together with the revenue clerk to cause loss of revenue to the employer. It was therefore gleaned that there was common purpose calculated to cause loss of revenue hence the charge of Fraud was preferred. The employer did not buy the employee’s story that she innocently missed the under mastering of the money which she had collected. It therefore reasoned that once intention to gain from a misrepresentation was established that was enough to found one’s guilt. The fact that no actual gain was demonstrated could not detract from the alleged fraudulent conduct.

If one has regard to the exemptions committee’s analysis it observed that Fraud is constituted by a false misrepresent calculated to cause loss and the offender has to have a material gain out of the misrepresentation. In conclusion the committee concluded that the employer had failed to demonstrate how the employees could access the money which was in the biller codes and also that since all the money which the employee collected was accounted for no Fraud had been demonstrated.

The definition of Fraud is settled. See Section 136 Criminal Law Codification and Reform Act Chapter 9:23. Stemming from that definition it is clear that where Fraud is alleged it must be shown that there was a representation which was made which was false in nature calculated to deceive the one to whom the misrepresentation was made. The person misrepresenting must realise that his representation can result in loss to the party who acts on it.

In the case at hand it is clear that the under mastering was done by someone and not the respondent. There is no clear cut evidence to show that the respondent was working together with the one who under mastered. What can be gleaned from the respondent’s conduct is carelessness of not checking whether what she had surrendered tallied with what was receipted. That in the court’s view is certainly some misconduct whose definition is not Fraud. To infer that because the respondent acted below expectations of her revenue collection duties translates to Fraud would be stretching the matter too far. What is clear is that no cogent evidence was led to show the common purpose which the employer intended the court and the committee to find.

It need be noted that the decision of the committee was not only premised on the lack of benefit but on the fact that Fraud had not been proven given the facts of the matter. The court sees no fault in the exemptions committee’s reasoning in that regard. The record is replete with evidence that the revenue clerk admitted to receiving the correct amount as tendered by the respondent. He does not state that when he recorded a less amount it was so that he and the respondent could benefit. What thus becomes clear is that indeed the respondent offended the employer but it is not demonstrated how it can be said that she engaged in fraudulent conduct. At worst her conduct was negligent but since, she was however not charged with negligence it was not amiss for the exemptions committee to let her get her job back based on the fact that fraud had not been proven against her. In the ultimate the court is satisfied that the appeal is without merit. The court see no reason why it should interfere with how the exemptions committee exercised its direction. There is nothing outrageous in the determination calling for the vacation of the same. The appeal should thus accordingly fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed with each party bearing costs.

Gill, Godlonton and Gerrans – Appellant legal practitioners

Lawman Law Chambers- Respondent legal practitioners