Eddie Nyandima v Zimbabwe Revenue Authority (Mutare)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/07/2016
HARARE, 12 OCTOBER 2015 &
27 MAY 2016
CASE NO LC/CON/MC/19/2010
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/MC/07/2016

HARARE, 12 OCTOBER 2015 &		                 CASE NO LC/CON/MC/19/2010

27 MAY 2016

In the matter between

EDDIE NYANDIMA							APPELLANT

Versus

ZIMBABWE REVENUE AUTHORITY (MUTARE)		         RESPONDENT

Before the Honourable L F Kudya J

The Appellant in Person

For the Respondent    K Renzva  (Legal Officer)

KUDYA J:

This is an appeal against the decision of the respondent’s internal appeals committee where it upheld the appellant’s dismissal following allegations of theft and conduct inconsistent with his duties in contravention s D4 and D5 of the respondent’s Code of Conduct.

The brief facts of the matter are that the appellant who was in the respondent’s employ as a tollgate cashier was on 21 March 2010 found with $46-00 on his person following a spot check just after they had knocked off. He had not declared the money as required of him at the commencement of his toll gate duties.

He was brought before a disciplinary committee which found him guilty of the infraction complained about and dismissed him from employment. Aggrieved by the dismissal he appealed internally without success. The failure of his internal appeal drove him to note the appeal to the Labour Court which appeal is the subject matter of this judgment.

The following facts are common cause:

The appellant was found with $46-00 cash just after he had finished his toll gate duties.

Toll gate cashiers were required to declare their personal cash at commencement of tolling so as to avoid mix up of toll fees and personal cash.

Spot checks were not unusual as these were done to detect thefts etc.

The only triable issue is whether or not the money which was found on the appellant was his personal money or he could not explain it out satisfactorily giving rise to the conclusion that it had been obtained by irregular means during his conduct of toll gate duties.

The appellant relied on the following grounds in his appeal to the Labour Court:

The appeals committee failed to apply its mind by not finding that the disciplinary committee had failed to establish the case on a balance of probabilities.

The appeals committee failed to consider that on submissions the two alleged charges were baseless.

The appeals committee erred to uphold the disciplinary committee decision which had distortions between proceedings and verdict.

The appeals committee erred to hold that the spot check was done within working hours.

The appeals committee failed to consider admissions by complainant on cross examination by committee members and defendant on the 1 September 2010 hearing.

The appeals committee could not differentiate the duties of the supervisor and those of the appellant.

Complainant totally misrepresented facts and the appeals committee should have seriously noted that.

Appeals committee erred by not reviewing the circumstances under which the alleged offences were levelled against the appellant. There is no link between what happened and the alleged charges.

There is nothing on record that shows that the appeals committee considered mitigation and shortfalls of the ZIMRA system since the appellant had not been trained on new developments. Toll gates are new developments which should be accepted as new and therefore require evaluation and review by the system from time to time.

The appeals committee erred by not considering the provisions of 6.3, 4.4, 6.16 and 6.18 which should have strongly guided them to be reasonable on the verdict.

In the result the appellant prayed that the appellate court reverse the appeals committee decision and substitute it with its own.

In response to the appeal the respondent maintained that:

The appeals committee did not fail to apply its mind to the case before it. The complainant did not fail to establish a case on a balance of probabilities against the appellant. The complainant showed that the appellant had not declared any money on assuming duty yet he was found with $46-00 at the end of the shift when he was going home. He could not satisfactorily account for it. He said he had brought it in the morning and declared it but there was no proof that it had been so declared. He could not even call the senior cashier to testify that he had indeed declared the money in the morning. The only reasonable explanation was that he had stolen the money from the toll gate by various means including sale of used toll tickets.

The two charges were proved and were not baseless. The appellant was found with money that he could not account for and the only reasonable explanation was that he had stolen it from nefarious toll gate activities that the officers were engaging in. He acted inconsistently with the conditions of his contract of employment. His duty was to collect money due to the fiscus and to act at all times in the interests of his employer yet he was found with cash that he could not satisfactorily account for. The two charges were thus proved.

There was no distortion between the proceedings and the findings and verdict at all. The appellant has to prove that averment as it is denied.

Spot check was held within the time that an employer could lawfully carry it. If it had been carried out when the appellant was already at home then one could find reason to impeach the spot check. This spot check was held when the appellant had just completed their handovers and submitted all cash. The employer wanted to find out if any of the cashiers had unaccounted for cash because there were reports throughout the country that toll gate staff were selling used toll fees among other illegal and self-aggrandising activities hence the spot check cannot be faulted in the circumstances.

This is denied since the appellant does not point out the admission that was allegedly taken into account or how material it was to the outcome.

The committee knew the difference between the duties of the appellant and those of the supervisor. There was no proof that the appellant declared any cash at all. The appellant could not prove that he had declared any cash. It was not just an issue of the supervisor failing to do his/her duties properly. There was no testimony from the supervisor that the appellant had declared the money in question.

There was no misrepresentation of facts by the complainant as alleged and the appellant needs to prove that allegation.

Committees conducted full hearings of the circumstances leading to the charges and they were satisfied that the appellant had committed the charges in question.

The committee took into account the mitigation factors presented on behalf of the appellant. There were no new developments that the appellant had to be educated on. No system challenges were shown in this case.

The case bordered on the integrity of the appellant. The appellant’s duties required someone of unquestionable integrity and any violation of such would go to the very root of the employment contract. No other penalty would be reasonable in the circumstances other than that of dismissal. The committees were therefore right.

In the result the respondent prayed that the appeal be dismissed with costs.

The test for such appeals has since been laid down in a variety of authorities to name a few the case of Nyahondo v Hokonya & Ors  1997 (2) ZLR 475 (SC).

The law is clear that the appellate court’s duty is not to substitute its discretion for that of the lower tribunal but to only come in where it is clear that the lower tribunal exercised its discretion irregularly. Applying the settled law to the facts of the case at hand it is important to note the following viz the appeal grounds:

Ground 1

A reading of the record of the disciplinary committee proceedings shows that the respondent managed to demonstrate that on the appellant’s person was found $46-00 during a pot check just after the appellant had knocked off. There was no evidence documentary or viva voce which was led to show that such money had been declared at the beginning of the appellant’s shift. It would therefore be remiss to suggest that the committee should have found otherwise on such facts. As the appellant correctly conceded proof required was on a balance of probability. See Zesa v Dera sc-79-98.

The respondent did exactly that on the facts of the matter at hand. The court is therefore not persuaded that there was any misdirection on the appellate body for confirming the disciplinary committee decision. The ground is without merit and it should fail.

Ground 2

As stated above the basis of the two charges was set out in the facts of the matter. There is therefore no basis for interference by the appellate court on this ground. It should consequently fail.

Ground 3

Sentiments in ground 1 and 2 apply here with equal force. The ground should therefore fail.

Ground 4

A reading of the record of the disciplinary committee hearing shows that evidence led thereat was to the effect that the spot check was done just after the appellant had knocked off and it was deliberately so given the exercise that was being conducted by the respondent to flush out illegal activity by the toll gate personnel. The argument raised in this ground has no merit and it should of necessity fail.

Ground 5

As observed by the respondent the ground is void for vagueness. It does not spell out what admission was not taken into account. It can thus not aid the appellant. The ground should therefore fail.

Ground 6

The duties of the supervisor or the appellant were neither here nor there in this matter. What was of critical note is that the appellant was found with cash and whose declaration he could not demonstrate. There was therefore nothing amiss in concluding that it had been gotten illegally. This ground thus has no merit and it should fail.

Ground 7

As stated in ground one the occurrence spoke for itself. The court is not persuaded that there is any misrepresentation to found the basis for upsetting the appeals’ body confirmation of the appellant’s dismissal. The ground has no merit and it should fail.

Ground 8

The records of both hearings show clearly that all the circumstances of the infraction were ventilated and conclusions drawn therefrom. Such conclusions are in sync with the facts of the matter hence the appeal court has no basis to interfere with such findings. The ground should also fail.

Ground 9

At the end of the deliberations the appellant was invited to mitigate and he did as such. It is however penitent to note that the mitigation does not of its own call for a less punitive measure. See Nyawasha v Circle Cement SC-60-03. Instant case dealt with public funds and image of a public body hence the dismissal penalty cannot induce a sense of shock in anyone. There is no basis for vacating that penalty. The ground should also fail.

Ground 10

Mischief to be cured by punitive penalty is to foster public confidence in public bodies like the respondent. In spite of all the cited provisions in particular where there is need to rehabilitate a person etc that cannot overshadow the view of the employer vis infraction. Infraction had dishonesty connotations and the dismissal penalty stood in good stead in the matter. The ground is also meritless and should fail.

In the ultimate all the appeal grounds are without merit and the appeal should fail in its entirety.

IT IS ORDERED THAT:

The appeal being devoid of merit in its entirety, it be and is hereby dismissed. Each party to bear own costs.