Grace Sithole v Parirenyatwa Group of Hospitals & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/455/2014
HARARE, 26 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/455/2014

HARARE, 26 JUNE 2014	    		  	            CASE NO. LC/H/154/14

AND 18 JULY 2014

In the matter between:-

GRACE SITHOLE							Appellant

And

PARIRENYATWA GROUP OF HOSPITALS 			1ST Respondent

And

HEALTH SERVICES BOARD					2ND Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Ms V.C. Maramba (Legal Practitioner)

For Respondents		-	Ms K.G. Murefu (Legal Practitioner) and

Mr Gutu (Legal Advisor)

MUCHAWA, J:

This is an appeal against the decision of the Health Services Board which confirmed appellant’s guilty verdict and altered the dismissal penalty to an option to resign.

Appellant was employed by First Respondent as a disposal Supervisor.  She was charged, found guilty and dismissed for breaching paragraph 9 and 13 (a) of the First Schedule of the Health Services Regulations 2006.  The charges were of theft of, or making improper or unauthorized use of state property and corruption or dishonesty.

The facts giving rising to the charges were that on 14 June 2013 during a routine search at ward A6 entrance at Parirenyatwa Group of Hospitals, appellant had been found in unauthorized possession of 10 ampoules of propofol, 1% Fresenius injection  (20ml) and 10 sachets bacterex disinfectant cleaner 30 g.  Appellant was said to have resisted to be searched leading to the enlisting of assistance from the U.Z. security personnel.  Further she was said to have offered a bribe to the security guard.

The grounds of appeal before me are stated as follows:

The respondent grossly misdirected itself in finding the Appellant guilty in circumstances where she did not have the requisite mens rea to commit the offence alleged.

The respondent erred in not giving reasons for its decision; thereby there is a possibility that the respondent may have been biased.

The respondent erred in using the disciplinary forum as a way of arm-twisting the appellant into resigning and thus facilitating and expediting her dismissal from employment.

The respondent was biased in its determination as it found the appellant guilty, but exonerated one Mhete who was the owner of the lunch box and who gave the lunch box to the Appellant.

The respondent erred in failing to adopt a corrective and educational penalty before dismissal in circumstances where the appellant was a first offender who rendered service for 33 years.

The appeal is opposed and I deal hereunder with each ground of appeal in turn.

Ground 1 and 4 Propriety of guilty verdict.

Appellant argues that the disciplinary hearing did not establish where the drugs were stolen from and the time they were stolen.  She is said to have had a reasonable explanation for possessing the drugs, which explanation was not deliberated upon by the disciplinary committee.  Appellant further explains that since it is common cause that the lunch box containing the drugs belonged to Mhete who left it for her attention, she had not opened this container.  She therefore did not know what was contained until the search.

Appellant takes issue with the fact that none of the independent witnesses who are said to have witnessed the commotion during the search, were called. She alleges bad blood between her and the security guards at the security check point.

It is her further argument that being found in possession of State property is not ipso facto an act of misconduct. I was referred to the case of Chinowaita and Anor. vs. Air Zimbabwe 2003 A (1) ZLR 402 (H). I hasten to point out that the Chinowaita case is distinguishable. It was a case involving smuggling and it was held that for the misconduct to be established it was necessary to find that the smuggling was “likely to bring scorn or disrepute to the corporation’s image” or that it constituted an “abuse of staff travel cargo carriage concessions as per Staff Regulations Manual”.

Respondent argues that appellant was found in possession of drugs and her initial refusal to be searched, which was witnesses by U.Z. security personnel with whom she had no bad blood point to the probability of her having stolen the drugs. I note too that all the witnesses working in the theatre point to the easy access to the unlocked refrigerator pointing to an opportunity to access the drugs.

Respondent pointed me to the loss of public confidence in the health sector and the dangers arising from unauthorized use of drugs.

Appellant’s counsel conceded before me that the standard of proof in a matter of this nature is nothing more than proof on a balance of probabilities (ZESA vs. Dera 1998 (1) ZLR 500 (SC)).

I find therefore that the 2nd Respondent did take Appellant’s explanation into account but in balancing probabilities they selected the most plausible conclusion. Their finding that Appellant was guilty cannot be faulted in the circumstances of the facts before them. I therefore dismiss grounds of appeal 1 and 4.

Ground 2 – Reasons for Decisions Not Given. Was 2nd Respondent Biased?

Appellant argues that in the letter dated 7th February 2014, 2nd Respondent noted that they had upheld the decision of the Disciplinary Committee without giving full details. This is said to point to bias on its part.

Respondent says it is not true that it did not give reasons for its decisions. It claims to have concurred with the findings of the Disciplinary Hearing Committee whose reasons are clearly documented on the record.

I have perused that letter and indeed I find that the letter says

“ ---------- This was arrived at after concurring with the findings of the Disciplinary Committee that you are guilty of misconduct and that the penalty is appropriate under the circumstances as the aggravating factors outweigh the mitigatory ones.”

In the circumstances I find no merit in ground 2 of the appeal. The allegation of bias does not stand. In any event such an allegation of bias has to be proved. An adverse decision is not in itself evidence of bias (See Trinity Engineering Pvt Ltd vs. Commercial Bank of Zimbabwe Ltd 2000 (2) ZLR 385 (HC).

Ground 3 – Was the disciplinary procedure used as a way to arm-twist Appellant into resigning

Second Respondent gave Appellant the option to resign thus altering the discharge penalty. Respondent says that this option is provided for in Section 50(1) (b) of the Health Service, Regulations Statutory Instrument 117 of 2006.

I find nothing irregular in this approach by Respondents who acted in terms of the law. There is therefore no merit in this ground of appeal.

Ground 5 – Propriety of Penalty

Appellant argues that the penalty imposed was inappropriate given that she had worked for 33 years for 1st Respondent, was a first offender with a family to look after. Appellant is said to have been 62 years old at the relevant time.

I was referred to the case of NEI Zimbabwe vs. Mukuvaza LC-H-248-04 wherein it was held that the Appellate Court cannot lightly interfere with a dismissal penalty where the employer has taken a serious view of the infraction complained about except where it is shown that the penalty is activated by malice or bias. Reference was made to page 17 of the record where it was noted that Mhete had been implicated in issues to do with drugs for the second time but was again not found guilty.

Respondent argues the penalty is reasonable as Appellant was initially dismissed by the Disciplinary Hearing Committee but on appeal that penalty was altered and Appellant was given the option to resign. This means receipt of full terminal benefits.

I was referred to the case of Tobacco Sales Floors Ltd vs. Chimwala 1987 (2) ZLR (S) for the assertion that Appellant had breached the trust reposed in her and had acted contrary to her duties and this made the continuation of the employment relationship intolerable. Because the employer took a serious view of the act of misconduct, the question of a lesser penalty would not arise (See Circle Cement Pvt Ltd vs. Chipo Nyawasha SC 60/03).

The facts relating to Mhete were different as even Appellant confirmed she had given her the lunch box to collect milk. She was not found guilty therefore on the basis of the facts.

I note too that Appellant was on the eve of her retirement given her age. She had earlier on applied for early retirement and requested that this be processed.

In the circumstances there is no basis to interfere with the penalty.

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

Thondhlanga and Associates, Appellant’s legal practitioners

Civil Division, Respondent’s legal representatives