Fabian Majena v Ministry of Transport & Infrastructural Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/740/2014
HARARE, 14 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/740/2014

HARARE, 14 OCTOBER 2014			                  CASE NO. LC/H/93/13

AND 07 NOVEMBER 2014

In the matter between:-

FABIAN MAJENA								Appellant

And

MINISTRY OF TRANSPORT & INFRASTRUCTURAL 		Respondent

DEVELOPMENT

Before Honourable L. Kudya, Judge

For Appellant	M. Baera (Legal Practitioner)

For Respondent		S. Chihuri (Law Officer)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which dismissed appellant following misconduct charges of stealing some number plates and 3rd plates from his workplace in contravention of the Public Service Regulations 2000 as amended.

The background to the matter is that appellant was employed as a clerk in the Ministry of Transport and Infrastructural development based at the Central Vehicle Registry Harare.  Whilst there 25 sets of number plates and 25 third plates were said to have gone missing at his workplace.  He was said to have sold these to unsuspecting customers and this led to him being charged with the theft misconduct on 16 November 2012.

A hearing was conducted where one of the buyers of the plates gave evidence.  Following the hearing appellant was found guilty and consequently dismissed from employment.  His dismissal was confirmed by the respondent’s disciplinary authority.  Aggrieved by that confirmation appellant has now appealed to the Labour Court against that dismissal.

The appeal grounds which he relies on are the following;

Disciplinary authority misdirected itself by finding the appellant guilty of theft when there was no direct evidence linking the appellant to the crime and the facts and the witness’ statements were speculative.

Disciplinary Authority erred by admitting witnesses’ statements when the witnesses themselves could not link the appellant to the alleged misconduct and therefore making the charges baseless and unfounded.

The disciplinary authority erred in preferring a verdict and penalty of dismissal when there was no aggravated charge leveled against the appellant and more particularly the charge warranted a lesser penalty than dismissal.

The disciplinary Authority in sentencing failed to take into account the mitigatory factors of the appellant that would have reduced the sentence and penalty to a lesser one and not dismissal.

In the result appellant prayed that the conviction and penalty be set aside on all charges or that the penalty be reduced to a verbal warning as well as have appellant reinstated without loss of pay and benefits.  In response to the appeal respondent maintained that:-

Enough evidence was led to link appellant with the offence.  At first appellant denied knowledge of the witness Chisora but later on confessed dealing with him but however says did so when he assisted him in processing a relative’s licence.   Witness was consistent that appellant sold the plates to him.  The call history between the two also showed that the two were communicating at the relevant time and the appellant could not say what business he was communicating over with the witness at the relevant time besides suggesting that it could be cross lines.

The witness said he got the plates from appellant for a fee of $700 hence there is link between state’s plates and plates allegedly bought by the witness.

Misconduct has dishonesty component and has a criminal element.  Vehicles with improperly issued number plates compromise State and appellant as public office had a duty to safeguard the system.  His abuse of same thus called for penalty which was meted out.  Any alternative penalty would have trivialized the case.

The witness was consistent in his submissions and that was supported by the call history hence his submissions were admissable and implicated the appellant.

In the result respondent prayed that the appeal be dismissed and that the disciplinary authority’s decision be confirmed.

Before delving into the merits of the appeal it is pertinent that the court disposes of the point in limine which was raised by appellant in its appeal.  The point which taken was that the disciplinary proceedings were null and void as they were not conducted with 30 days as per the Regulations.  In response to this point respondent indicated that the regulations do not state that the hearing should be concluded with thirty (30) days but rather within a reasonable time.  The conclusion of this aspect lies in a simple reading of the regulations and interpretation of the same.

A reading of the regulations in particular part VIII section 42 to 46 sets out clearly the time from as to be observed when disciplinary proceedings are being done.  Except for the fourteen days and seven days mention about commencement of the hearing following investigations there is nowhere in the regulations where it says the proceedings should be concluded within thirty days.  To that extent the point in limine is without merit and it should be dismissed.

It is also worth noting that when the appellant filed his heads of argument he brought up new issues which did not form part of his appeal originally.  These are issues like the argument that appellant was dismissed for abusing his authority an offence which he was not charged with.  This never formed part of the grounds of appeal and the court takes it that it was not an issue.  In any event even if it were to be taken to be a point of law which can be raised properly at any stage of the proceedings the argument would still fail for the following reasoning.

A reading of the dismissal note page 13 of the record state that appellant was convicted of “theft of or failure to take reasonable care of or unauthorized use of state property ….”  To that extent there is no evidence that appellant was convicted of abuse of office charges.  The record seems to have mention of that abuse when the committee was trying to determine the penalty.

That cannot be read to by synonymous with dismissing one on a charge to which was not preferred against him.  This point lacking in merit should fail.

Turning to the merits of the  appeal, the law is clear that an appellate court can only upset the factual findings of a lower tribunal if it is apparent that the lower tribunal abused its discretion or dealt the matter with malafides See Nyahando v Hokonya and Ors 1997 (2) ZLR 475 (SC).  It is not the appellate court’s duty to substitute its discretion for that of the lower tribunal unless there is gross misdirection in the matter.

Stemming from the above legal position the question to be answered by this court is whether it can be said that the lower tribunal grossly misdirected itself on the facts of the matter or abused its discretion to the extent that the current court should upset its factual findings.  Each of the grounds of appeal will thus be addressed on turn.

Ground 1 and 2

The two grounds will be disposed of at once as the issues which they speak to are essentially the same.  It is worth noting that the guilt of the appellant was arrived at after looking at the evidence of Chisara who said had bought the plates from appellant.  There was also a call history record stating that the two were in communication at the relevant time.  At first appellant indicated that he did not know Chisara but changed later on to suggest that he knew him from another perspective that is from an ocassion when he had assisted his relative to get a licence.

What is interesting to note about this evidence is that the helpful gesture which appellant wants court to believe was between him and Chisora cannot surely have turned ugly to have Chisora suddenly turn devil and accuse appellant that he was the source of the plates.  It could not have been coincidental that plates went missing, Chisora is found with them and says got them from appellant and appellant had access to them.  It would be naïve to suggest that of all the people that Chisora would deal with Chisora would just coincidentally pick on appellant who indeed had access to the plates.  Such a coincidence can only be construed that indeed appellant was the source of the plates.

The fact that the proof beyond reasonable doubt test failed at criminal does not necessarily mean that from a misconduct perspective appellant should be absolved.  The case of ZESA v Dera SC 79/98 makes it clear that the standard of proof required in disciplinary cases is at a lower level, that is proof on a balance probability.  The cumulative effect of the evidence on the matter at hand passes that test and the court is not persuaded that there was gross misdirection in the lower tribunal.  These two grounds lacking in merit should thus fail.

Ground 3 and 4

As in the first set of grounds these two speak to the same issue of penalty and it would be prudent to dispose of them together.  The law is clear that penalty is the preserve of the employer and appellate court can only interfer if imposition of same is completely at cross purposes with the infraction complained about Circle Cement v Nyawasha SC-60-03

It is not debatable that mitigation should be elicited from an offender so that it can appeal to the minds of the tribunal with the possibility of a lesser penalty being preferred.  It is however worth noting that such an omission is however not fatal as it does not go to the root of the matter.  See Dalny Mine v Banda 1999 (1) ZLR 220 (SC) on technicalities.  The remedy would be to send matter back to lower tribunal to take mitigation the face of gravity of the infraction in instant case that would not serve any meaningful purpose so court is of view that decision should be based on whether irrespective of absence of mitigatory factors was the penalty still in order.

As pointed out by the respondent it is pertinent to note that the actions of appellant put the State’s reputation as risk as the public would lose confidence in the vehicle registry department Public Office calls for much more than one would be demanded of the conduct of any other citizen hence if respondent concluded that infraction was so gross warranting dismissed the appeal court cannot fault it.

The dishonesty cannot at connotations embroiled in it surely pass the test of a dismissable offence.  In the ultimate these two grounds are also not merited and they should fail.

In the result the whole appeal being of devoid of merit should fail.

IT IS ODERED THAT

The appeal being without merit in its entirety it be and is hereby dismissed with costs.

BAERA & COMPANY, Appellant’s legal practitioners