David Madzaridzari v United Church of Christ in Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/85/2023
HARARE 15 FEBRUARY 2023 27 MARCH 2023
CASE NO LC/H/197/22
DAVID MADZARIDZARI
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 15 FEBRUARY 2023 27 MARCH
2023

JUDGMENT NO LC/H/85/2023
CASE NO LC/H/197/22

DAVID MADZARIDZARI
APPELLANT

UNITED CHURCH OF CHRIST
IN ZIMBABWE
RESPONDENT

Before the Honourable G. Musariiri Judge:

For Appellant - Mr O. Kondongwe, Attorney

For Respondent Ms H. Ndudzo, Attorney

MUSARIRI, J:

Appellant worked for Respondent as Hospital Administrator in Chipinge. He was dismissed from employment after being found guilty of misconduct by the disciplinary authority. He appealed but the appeals authority dismissed the appeal. Appellant then appealed to this Court in terms of section 92D of the Labour Act Chapter 28:01.

The grounds of appeal were quadruple. However the 4th ground raised reviewable matters which cannot be dealt with in the present appeal. The remaining grounds raise basically 2 issues which will be dealt with in turn hereafter.

Whether the appellant’s conviction was supported by the evidence:

The disciplinary authority’s decision is set out in a letter dated 31st March 2020. It summarised the charges against appellant as

1. Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of your employment contract.
2. Theft or fraud.
3. Habitual or substantial neglect of duties


4. Lack of skill which the employee expressly or impliedly held himself to possess.

Appellant was found guilty on counts 1, 3 and 4. He was acquitted on the theft/fraud charge. The decision made 8 findings shown by bullet points. The findings were not arranged in order to show which counts they relate to. This makes it awkward to analyse the decision but as in duty-bound the Court will do the best in the circumstances.

I will start with the findings in relation to the motor accident on 15th September 2017. It is common cause that appellant was involved in the accident whilst driving respondent’s vehicle. It was found that he failed to report accident and lied that he had reported. The minutes of the hearing show this exchange.

“QN: Mr Mashava asked if there was any police report about the accident.

Response: Mr Madzaridzari said he called the police and the police asked him if the vehicle was insured and if it could move on its own. The police asked Mr Madzaridzari to drive the vehicle and come the next day to the policed. The police report is filed in the office file in the tray at the table.

QN: Do you recall the officer who did the police report?

Response: Mr Madzaridzari says he does not recall the officer who served him and his contact number was lost with the old phone.”

The disciplinary authority found him guilty on the basis that failed to provide reference details of police report. This must be weighed against the defence that he reported the accident but could not recall details of the report. He went further to say the report was in respondent’s office. I am not satisfied that the defence was properly discounted. However more importantly this accident was not mentioned in the letter dated 11th February 2020 which set out the charges against appellant. In other words the incident was improperly smuggled into the disciplinary hearing.

What turns out to be the critical finding was summarised thus,

“We found out from the submissions of the complainant and from your submissions during the hearing that you continued being a bank signatory to the Hospital Accounts and the Orphanage account it in spite of the fact that you had been directed to stop being a signatory in April 2018, following recommendations from the external auditor. The following are some of the bank accounts you continued being a signatory against the Medical Council Directive in defiance of the resolution thus a lawful instruction:”


The issue was ventilated at the hearing in the following exchange;

“QN Rev Mutsumbeyi asked that Mr Madzaridzari had hinted that he was stopped from being a signatory and he wanted to know the signatory sand he wanted to know the specific date?

Response: Mr Madzaridzari said he immediately stopped being signatory for the school of nursing CBZ Account and the Hospital main account CABS. He said he continued signing the RBF Account until October 2019. The instruction to stop came after an internal audit and later after a new committee was elected in February 2019. He was doing this with the full knowledge of my superiors. The bank had made an error in validating the signature of the Medical Superintendent.

QN: So you are saying the bank could not validate the signature in time?

Response: Mr Madzaridzari said he wrote a letter to the bank asking for the Medical Superintendent signature to be validated correctly

QN: Mr Jenya says annexure 3 says you refused to stop being a signatory?

Response: Mr Madzaridzari said he did not refuse to stop being a signatory. There was no one to sign so he was giving a service.

QN: Did you identify or recommend d someone to replace you as signatory?

Response: No I did not.”

I consider that this exchange provided a valid basis for the finding of guilt. Appellant refused to obey a lawful instruction on the basis the “he was giving a service.” It turns out that the service was not appreciated by his employer. It was an act of defiance against the employer’s authority.

In light of the Court’s take on this issue it becomes unnecessary to consider the other findings on guilt made by the disciplinary authority.

**Whether the penalty of dismissal was excessive:**

The act that appellant was found guilty of is a dismissible offence. Respondent **qua** employer exercised its discretion on penalty and chose dismissal as the appropriate penalty. Nothing pleaded or shown from the record suggests that the employer abused its discretion. Therefore this Court is barred from interfering with the penalty imposed.

See: MTC v Matangadura 2012 (1) ZLR 183(S) where ZIYAMBI JA stated at p 186

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss…”


CONCLUSION

Appellant failed to fully substantiate his appeal as regards both conviction and penalty.

Wherefore it is ordered that;

1. The appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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