Erison Rufu v Minister of Agriculture, Mechanisation & Irrigation Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/449/2016
HARARE, 16 JUNE 2016 & CASE NO LC/H/128/2016
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/449/2016

HARARE, 16 JUNE 2016 &				         CASE NO LC/H/128/2016

22 JULY 2016

In the matter between

ERISON RUFU								APPELLANT

And

MINISTER OF AGRICULTURE, 						RESPONDENT

MECHANISATION & IRRIGATION

DEVELOPMENT

Before the Honourable Murasi J

For the Appellant	Mr A Chambati (Legal Practitioner)

For the Respondent	Ms C Siqoza (Legal Officer)

MURASI J:

The appellant was employed by the respondent as an Accounting Assistant. Following an audit carried out in the department where the appellant worked, he was charged with misconduct in that he had made fraudulent claims to the prejudice of the respondent. He was brought before a disciplinary committee which found him guilty and recommended his dismissal from employment. The appellant has appealed to this court against the decision to dismiss him. His sole ground of appeal is couched as follows:

“The respondent grossly erred and seriously misdirected itself in handing down a penalty of dismissal against the appellant after finding him guilty of acts of misconduct when it had handed down lesser penalties for the appellant’s fellow employees (namely Nyamutukwa S, Mabiki M, Mangombe S, Mugabe S and Piki J) who had committed the same acts of misconduct as those committed by the appellant and under similar circumstances.”

Mr Chambati for the appellant stated that it was acknowledged that it was the employer’s discretion to impose a penalty on an employee. However  court can interfer with the exercise of the discretion where it has been unreasonably exercised. It was submitted that the respondent had exercised this discretion unfairly as the appellant had been dismissed whilst other employees had received lesser penalties. It was further argued that this was inconsistent with the provisions of section 2 A (1)(d) of the Labour Act [Chapter 28:01]. Mr Chambati drew the attention of the court to the fact that the report showed that one Chinyerere had been guilty of misappropriating funds but nothing had been done to him and he had in fact resigned. Mr Chambati further argued that the amount should not have been used as guidance in arriving at the decision to dismiss the appellant as the issue of trust and confidence applied to all employees. He therefore urged the court to remit the case to the respondent for a re-hearing on the issue of the penalty.

Ms Siqoza for the respondent submitted that the appellant was challenging his dismissal based on his own word which was not supported by evidence to this effect. It was argued that it was not a basis to be considered by the court that other employees had not been dismissed by the respondent. Ms Siqoza further submitted that the court was not seized with these matters as different mitigating and aggravating features were considered when decisions were made in those cases. It was further argued that the aggravating features in the appellant’s case, that is, the position he held, the amounts he fraudulently misappropriated and the period of time in which the offences were committed, warranted the appellant’s dismissal from employment.

The court will deal with the issue of whether other employees received lesser penalties than the appellant. What appears on record is the fact that other employees were implicated in the audit report. There is no record of proceedings showing that they were subsequently charged. It is not known, at least from the record, whether they were convicted and what sentences they received. The court inquired from Mr Chambati on what evidence the court should make a finding that the other employees had indeed received lesser sentences. His response was that the respondent should have provided the evidence because the appellant had made the averment. This, in my view, is not the correct position of the law. The appellant should have adduced sufficient evidence for the respondent to rebut. It is not enough to make a bold averment and hope that the other part will adduce evidence to prove the opposite. In Astra Holdings Limited v Peter Chamburuka SC 27-12 the following was stated:

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

The appellant has merely made a bold allegation. The circumstances pertaining to the other cases are not known to the court and are not before the court. The court is not in a position to comment upon them. I am of the view that the point raised in the ground of appeal is not properly made. This brings me to the issue of one Chinyerere who was mentioned in the audit report. The report shows that a previous audit report had drawn the respondent’s attention to the fact that Chinyerere had to have his issues investigated. The report clearly shows that Chinyerere had resigned before any action was taken against. Mr Chambati sought to rely on the inaction of the respondent in this instance to show that the appellant was unfairly treated when he was dismissed from employment. The first issue that comes out of the report is that this is the same report that led to the misconduct allegations being levelled against the appellant. Chinyerere had already resigned and was beyond the respondent’s reach. The second issue is that Chinyerere had resigned and had not been dismissed by the respondent. The two cases were clearly different. Though both instances involve the termination of an employment, they are not the same and thus the appellant cannot seek to use Chinyerere’s case as they are clearly different.

I will now turn to the issue of whether the respondent was entitled to dismiss the appellant in the circumstances. Precedent is clear that an appellate court may not interfer with the decision of a lower court or tribunal unless there is evidence of a gross misdirection. N Chioza v Siziba SC 4-15 it was held thus:

“The court a quo made factual findings in this regard. The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court… In the absence of such a misdirection (and none has been alleged by the appellant) it is not open to this court on appeal to substitute its own findings of fact for that of the trial court.”

The appellant does not dispute that he was correctly convicted. He states that the respondent should not have dismissed him in the circumstances. A look at the facts leading to his conviction is pertinent. The audit report shows that the appellant made fraudulent claims for travelling and subsistence allowances over a long period of time. This was made by claiming to be in different places on the same day. For example, on 28 September 2013 he made a claim of $55-00 in that he had travelled from Chinhoyi to Chirundu. On the same day he made another claim showing that he had travelled from PQI to Mukumbura and claimed an amount of $50-00. On 16 January 2014 he made three claims in that he had travelled from Kadoma to Mazowe, Mazowe to Beitbridge and Chinhoyi to Karoi. The records showed that the appellant had actually signed that he was present at the office when he made the claims. By so-doing, the appellant prejudiced the respondent of an amount of $5055-00. The appellant was also found guilty of using fake accommodation receipts. The appellant had used such receipts and claimed a sum of US$2 820-00. As far as the fraudulent travelling and subsistence claims were concerned, the audit report showed that this had gone for over a year. These fraudulent claims were more than sixty (60) with varying amounts. The appellant was an Accounting Assistant who had worked for the respondent for a period of twenty-six years. He held a position of trust. The question is would a reasonable employer have reasonably dismissed the appellant? As already pointed out, he held a position of trust and his duties were to safeguard the funds that he was misappropriating. These were public funds. It has been held that it is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss the employee if the circumstances of the commission of the offence showed that the continuance of a normal employer and employee relationship had in effected been terminated. (See Toyota Zimbabwe v Richard Posi SC 55-07). Instead of correctly recording the finances of the respondent, the appellant was using his position and knowledge to steal from the employer. In James Kandome v Shades of Black Cosmetics (Pvt) Ltd SC 115-04 SANDURA JA (as he then was) had this to say:

“It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly. Any behaviour on the part of the employee which is, wholly inconsistent with that relationship would render the continuation of that relationship untenable and would constitute a repudiation of the contract of employment.”

The appellant clearly abrogated the responsibilities placed upon him. It is my view that a reasonable employer would have reasonably dismissed the appellant. The appeal ought to be dismissed.

The court makes the following order:

The appeal be and is hereby dismissed.

The decision of the disciplinary authority to dismiss the appellant from employment be and is hereby upheld.

Each party to meet its own costs.

Chambati, Mataka & Makonese, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners