Garimoto Garimoto v Watershed College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/698/14
HARARE, ON 4th SEPTEMBER, 2014
CASE NO. LC/H/494/13
AND 24 OCTOBER, 2014
JUDGMENT NO. LC/H/698/14
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IN THE LABOUR COURT OF ZIMBABWE                               JUDGMENT NO. LC/H/698/14

HARARE, ON 4th SEPTEMBER, 2014		 	            CASE NO. LC/H/494/13 AND 24th OCTOBER, 2014

In the matter between

GARIMOTO GARIMOTO 	–	APPELLANT

And

WATERSHED COLLEGE 		-	RESPONDENT

Before The Honourable E. Muchawa, J

Appellant 	:	In Person

Respondents   :	Mr C. Mucheche (Legal Practitioner)

and Mr T. Mafongoya (Legal Practitioner)

MUCHAWA J,

This is an appeal against a determination of the National Employment Council for Welfare and Educational Institutions Appeals Committee (the  Appeals Committee). The determination upheld the earlier decisions by the Disciplinary Committee and the Chief Executive Officer to dismiss Appellant.

Appellant is a former employee of the Respondent. He was employed as a general hand when he was charged of gross misconduct being actual or attempted theft, embezzlement, fraud or bribery in terms of the Employment Code of Conduct Welfare and Educational Institutions, under Schedule 4.

The facts giving rise to the charge were that Appellant was alleged to have amended a request for an advance form to read $160.00 yet the form had been authorized with an amount of $60.00. He was then given the higher amount of $160.00 which he was alleged no to qualify for.

A disciplinary hearing was conducted on the 22nd March 2013 and Appellant was found guilty and dismissed. On Appeal to the Chief Executive Officer, the verdict and sentence were confirmed. This was reconfirmed by the Appeals Committee hence this present appeal.

The grounds of appeal before me are stated as;

The NEC Appeals Committee erred by upholding the composition of the Disciplinary Committee without calling for an oral hearing to hear the Appellant substantiating this allegation.

The NEC Appeals Committee grossly misdirected itself by upholding issue of the Chief Executive Officer’s decision that was based on a challenged record of proceedings.

The NEC Appeals Committee was biased in its observation that there was proof that the Appellant committed a serious act of dishonest (sic) when the converse is true.

The NEC Appeals Committee erred by failing to address all of the Appellant’s Grounds of Appeal which remainder is hereby submitted for an unbiased consideration.

The decision to dismiss the Appellant was premeditated and the Appellant shall lead evidence to that effect to prove his innocence. The NEC Appeals Committee erred, by failing to appreciate that there were flaring irregularities that vitiated the disciplinary proceedings.

The appeal is opposed. I deal with each ground of appeal below.

Ground 1 – Composition of Disciplinary Committee

Appellant submitted that the Administrator – Mr Mtuma notified him of the disciplinary hearing instead of his supervisor one Mr Afia as spelt out in the Code of Conduct. It is further alleged that the said Mr Mtuma carried out investigations and prepared the charge sheet. He then appears as the complainant in the disciplinary hearing. Appellant mistakenly called this appearing as a witness, in his oral submissions, but he conceded this was erroneous as the minutes show, he was in fact the complainant.

It is further alleged that the minutes do not reflect who the Secretary in the disciplinary hearing was.

Appellant did not demonstrate the prejudice suffered beyond just stating that the Administrator who was the complainant should not have notified him of the hearing.

Respondent’s position is that the composition of the Disciplinary Committee is in tandem with the provisions of the Code of Conduct.

The Code of Conduct provides in Section 7.1 that the Disciplinary Committee should comprise of two management representatives, a head of department who is not the employee’s supervisor and three workers committee representatives. The quorum is said to be two members from either side. This was met in the instant case.

Appellant’s case might have been different if he was alleging that Mr Mtuma who had notified him of the hearing was sitting as management representative, as there would be a conflict of interest. He has not and he has not demonstrated any prejudice.

In the circumstances I find no merit in grounds of appeal 1 and part of ground of appeal 5.

Ground 2 – Challenged record of proceedings

The Appellant alleges that the Chief Executive Officer grossly misdirected herself in determining the appeal on the record as the record of proceedings; in particular, the minutes of the disciplinary hearing, were challenged. In submissions before me, it was pointed out that there are “several inaccuracies, notable omissions and misquotations in the record of proceedings.” The minutes are said to have been produced belatedly in a calculated manner meant to prejudice the Appellant. The minutes and determination are said to have worked out issues from the answers.

I was referred to an Annexure “E” which is an addendum to the Appellant’s grounds of appeal directed to the Chief Executive Officer. This addendum also claims that the minutes were doctored and fabricated to mislead the Appeals Committee/Officer. Reference is made to several inaccuracies, omissions and misquotation.

The Respondent avers that the Chief Executive Officer made a finding of fact that the record of proceedings was indeed a true reflection of the proceedings. Appellant is said not to have alleged and proved that such a factual finding was grossly unreasonable and she proceeded in a procedurally correct manner as provided by the Code of Conduct.

I find too and agree with the NEC Appeals Committee that Appellant has made a bare averment of the minutes being incorrect and inaccurate. Such allegations have not been substantiated at all. In the circumstances I cannot fault the decision reached in this respect.

There is no merit therefore in ground 2 of appeal and I dismiss it.

Ground 3 – Propriety of Conviction

Appellant alleges that the NEC Appeals Committee was biased in determining that he had committed a serious act of dishonesty.

On record is documentary evidence of the process of the application for the advance until the payment from petty cash. The paper trail starts with an application form entitled “Wage Advance Application Form.” It reads,

“I Garimoto Garimoto kindly apply for a Wage Advance amounting to $160 for medical reasons.”

The application form is signed by Appellant, witnessed by one Obert Captain and approved by the School Administrator, Mr Simba Mtuma on the 7th March 2013.

Next is a petty cash voucher. This is signed by Appellant and is passed by a person explained to be the Respondent’s Assistant Bursar and once again by Mr Simba Mtuma. It is stamped paid and dated the 7th March 2013.

Appellant is therefore saying that he applied for $160.00 and went through the relevant procedure of getting an approval for his application and for the actual payment.

Respondent claims that there is overwhelming evidence for the commission of the offence. I was referred to the minutes of the disciplinary hearing where Appellant is said to have apologized for the commission of the offence.

I however find it disturbing that Respondent’s version of events is not borne out by the paper trail. In particular I did not get a satisfactory explanation as to how the signature of the School Administrator appears on the petty cash vouchers as having passed it for payment with an amount of $160.00. It does not really matter to me whether the Bursar had prepaid the amount or not. The signatures on the paper trail tell a different story. I find that the school administrator approved the application and passed it for payment.

In the light of the explanation by Appellant that his apology was in fact for failing to return the full amount as well the evidence submitted showing prior advances up to $208.00 in the month of September 2012 and $175.00 in October 2012, I am convinced that Respondent was in fact in the practice of giving advances in the range of the $160.00 and above applied for in casu. In my opinion this incident has not likely to change anything regarding the audit results of Respondent as it was reflected as a practice and had already been under the scrutiny of auditors.

Although Obert Captain, the single witness has written a statement indicating he filled in the form and the application was for $60.00, I note that the form is written in the first person. It is in fact Appellant making the application and stating the amount applied for and the reasons thereof. I therefore fail to see where the fraudulent misrepresentation is in the application form. It is merely an application form.

The procedure, through segregation of duties is meant to ensure that the accounting standards are followed. This is why the Administrator has to approve the application and then pass it for payment. Appellant went through these processes.

In the circumstances, I find that this ground of appeal succeeds. Appellant was wrongly found guilty of an act of misconduct of “actual or attempted theft, embezzlement, fraud or bribery.”

There is no basis on which to proceed to the remaining grounds of appeal.

Consequently I order as follows:

The decision of the NEC for Welfare and Educational Institutions Appeals Committee of 13th June 2013 be and is hereby set aside and substituted as follows;

“(a)	Respondent is ordered to reinstate the Appellant to his former position without loss of salary and benefits with effect from the date of unlawful dismissal.

(b)	In the event that reinstatement is no longer an option, Respondent should pay damages in lieu of reinstatement, the quantum of which should be agreed between the parties. In the event of non-agreement, any of the parties can approach the Court for quantification.

Matsikidze and Mucheche – Respondent’s legal practitioners