Felix Nyahuye v Minister of Education, Sports and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/61/2013
HELD AT HARARE ON FEBRUARY 20, 2013
CASE NO.LC/H/272/2012
In the matter between:
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO.LC/H/61/2013

HELD AT HARARE ON FEBRUARY 20, 2013   	CASE NO.LC/H/272/2012

In the matter between:

FELIX NYAHUYE		 				Appellant

And

MINISTER OF EDUCATION			  	Respondent

SPORTS AND CULTURE

Before The Honourable E. Makamure, President

For Appellant : In Person

For Respondent: Ms T. Mashiri (Legal Practitioner)

MAKAMURE E,

The appellant was a school Head.  Two posts fell vacant at his school.  The posts were advertised.  After the requisite procedures had been followed, two people were interviewed.  The appellant as Head of the school was part of the panel of interviewers.  The other party was his Acting Deputy.  The third person was a member of the parent body – School Development Association (SDA).  The two candidates were Tendayi Nyahuye, who is also the appellant’ daughter and Susan T. Manquma who is the daughter of the Acting Deputy Head.

The appellant also carried out fundraising activities at the school.  He did not seek prior approval from the Provincial Education Director as he is required to do.  The appellant did not bank the money realized from the fund raising activities as required by the standing instructions.

It was as a result of the above that the appellant was charged with acts of misconduct.  He was found guilty and penalised with a demotion to be the Deputy Head of a different school.

During the interview of the teachers referred to above, Mr Nyahuye did not declare his interest.  His position is that he did not conduct interviews in question but that he was part of the panel which conducted the interviews.  I find this to be a lame excuse especially for the appellant, who is a person of influence.  He together with his deputy and only one other person, that is, the Chairman of the SDA formed the interview panel.

The excuse by the appellant is totally unacceptable.  At the very least the appellant should have declared his interest to the SDA.  Even if the SDA knew that the two interviewees were children of the Head and his Deputy, they (the SDA) should have been given a chance to be in actual control of the process if it was to be deemed to have been fair.  From the look of things, the SDA was not in control.  The appellant was.

With respect to the fundraising activities, the appellant confirmed that he did not seek the requisite approval.   He stated that he was under pressure to find incentives for the teachers at his school.  Such was the pressure that (due to absence of incentives) the teachers held on to the pupils’ end of term reports.  They only released them after the appellant had caused their arrest as a result of which the local police issued a strong warning condemning the conduct of the teachers.

It is clear that the appellant was under a great deal of pressure.  He needed an immediate solution.  Hence the fundraising activities.  It is important to note that even if one is under pressure, there is still need to adhere to standing instructions. It goes without saying that pressure invariably arises at the workplace.  That should not compromise the existence of standing rules.  Bowing down to pressure by failing to adhere to rules results in poor governance.  Further, an impression that one is going on a frolic of their own is created.  It is therefore paramount to always adhere to rules, otherwise a person’s noble intentions can be misinterpreted to mean the opposite.  The appellant did not bank the money he got from those efforts neither did he issue out receipts when the money was paid out to the teachers.  Further there were no SDA members present when the money in question was paid out.  The impression created here is that whatever was paid out was not done in a transparent fashion.  This is undesirable and tarnishes the image of school.

Apparently Government pronounced a freeze on certain posts.  It was clarified during the course of the hearing that if there is a government freeze on particular posts, the SDA can proceed to recruit for those posts provided they are granted the authority to do so by government.  It is clear that the appellant failed in his duty by not declaring his interest during the interviews of both his daughter and the daughter of his deputy.  Further, there are clear instructions with respect to both recruiting staff and fund raising which the appellant ought to have followed.  He did not do so.

There was nothing wrong in the appellant’s daughter or that of the Deputy in applying for vacancies.  There is nothing wrong in them teaching where their respective parents hold positions of influence.    However, when it came to interviewing them, the appellant ought to have ensured that the interview process was above board by finding alternative personnel to conduct the interviews.  The appellant clearly violated his fiduciary duty in that recruitment process.  Equally the appellant ought to have sought guidance from his superior when he wanted to conduct some fund raising activities at the school.  It is appreciated that the appellant may have encountered difficulties when he approached the Ministry but still it remains that the requisite authority was required.  If school heads were left to recruit staff and do other various activities without following any particular guidelines, there would be chaos in the running of schools.  It is appreciated that during the material period, times were hard and the appellant was under pressure.  However, he still should have notified his superiors regarding the need to fund raise in order to contain the pressure which he was getting from his staff.  Further, it was only to his credit that he was innovative enough to find a way of getting incentives for his staff.  However, the procedure which he followed in doing so cannot be condoned.  Thus the appellant cannot escape liability.

As regards sentence, an appellate Court will not readily interfere with the findings of lower tribunal.  It will only interfere if it has been shown that the lower tribunal exercised its discretion improperly.  [See Bambe v Bambe SC 91/02, Sengweni v The Chairman of the Public Service Commission HH/41/93].  I am not able to say that such direction was improperly exercised in the present matter.

In the circumstances I find that there is no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed.

Appellant, In Person.

Civil Division of the Attorney-General’s Officer, Legal Practitioners for the Respondent.