Gunner Maboreke v Ministry of Health and Child Welfare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/70/2014
HARARE, 14 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO. LC/H/70/2014

HARARE, 14 NOVEMBER 2013	    		     	   CASE NO. LC/H/1008/12

AND 14 FEBRUARY 2014

In the matter between:-

GUNNET MABOREKE						Appellant

And

MINISTRY OF HEALTH AND					Respondent

CHILD WELFARE

Before Honourable R. Manyangadze, J

For Appellant 		-	In person

For Respondent		-	Ms R. Hove (Legal Practitioner, Attorney-

General’s Office)

MANYANGADZE, J:

This is an appeal against the decision of Respondent’s Disciplinary Committee, in terms of which Appellant was found guilty of misconduct and dismissed from employment.

The Appellant was employed by the Respondent as a clerk and was based at Marondera Provincial Hospital.

In September 2006, Appellant was charged with misconduct in terms of the Public Service Regulations, Statutory Instrument 1 of 2000, paragraph 2, 8 and 24 of the First Schedule of the Regulations.  The charge was “improper, negligent, and inefficient/or incompetent performance of duties … failure to take reasonable care of or to account for … public money … “

Particulars of the misconduct were that Appellant collected cash amounting Z$20 910 000, 00 (twenty million nine hundred and ten thousand Zimbabwe dollars) from the hospital’s Accounts Office.  He kept the money in a cupboard instead of a safe, which money was meant for allowances of Village Health Workers.

The Appellant, it is alleged, could not account for the money after it went missing.  He managed to replace Z$11 890 000, 00 (eleven million eight hundred and ninety thousand Zimbabwe dollars) leaving a balance of Z$9 020 000,00 (nine million and twenty thousand Zimbabwe dollars) still unaccounted for.

Appellant was prosecuted on a charge of theft at Marondera Magistrates Court and acquitted.

A Disciplinary Committee found him guilty of the charge of misconduct on 8 September 2006, and recommended his dismissal.  The dismissal was confirmed by the Provincial Medical Director, and Appellant was served with his dismissal letter on 1 February 2007.

Appellant’s appeal to the Health Services Board was not heard, as it was said to be out of time.

Appellant then lodged an appeal with this court, on 4 January 2013.  This he did after obtaining condonation for late noting of the appeal on 14 November 2012.

In his grounds of appeal, Appellant avers that the Disciplinary Committee grossly misdirected itself on the facts in finding that Appellant misappropriated State funds, that he admitted to the charges, and in imposing a penalty of dismissal.

The appeal attacks the findings of fact made by the Disciplinary Committee.  One therefore must look at the record of proceedings of the Disciplinary Committee.  Only then can it be reasonably determined whether there was a gross misdirection in the assessment of the facts.

The essential facts which the Disciplinary Committee found to have been proved or admitted were that Appellant collected Z$20 910 000 00 from the Accounts Department, meant for Village Health Workers’ allowances for Marondera District.

Appellant kept the money in a trunk, in a common office.  He  did not inform his superior, the District Medical Officer, that he had some money kept in unsafe conditions, until it was allegedly stolen 3 weeks later.

The pertinent question is whether these findings are reasonably supported by the facts on record.  The matter must be determined within the bounds of the evidence on record.  The record is, in the main, a question and answer session between the Disciplinary Committee and the Appellant.  This was money collected by the Appellant.  Its custody or disappearance was therefore a matter  peculiarly within his knowledge, which only he could explain, hence the rather lengthy probing done by the Disciplinary Committee.

Pertinent excerpts from the record read as follows:

Q.	When you took the money from Accounts what happened?

A.	… I locked it up in a cupboard in my office.  I did not advise anyone of collecting funds from Accounts.

Q.	Where did you keep the money?

A.	In a trunk in a cupboard in my office.

Q.	Why did you not tell Dr. Manangazira as Head of District about the VHW money.

A.	No answer.

Q. 	Is it true you kept the money in an unsafe place.

A.	Yes

Q.	What was the wisdom of taking all this cash when you did not have a safe place to keep the money.

A.	No answer.

On the issue of the replacement he attempted to do, this is what the record says.

“Q.	Whom did you tell you were going to Chiota to compile these names after the funds went missing?

A.	I just went without authority.  I wanted to clear myself.

Q.	What really happened to the VHW money?

A.	I did not take the money I paid the VHWs  and I replaced the money that went missing and this was receipted in Accounts.  I paid $11 000 000 (old currency)”

Q.	 Why didn’t you report to the police?

A. 	I was thinking I was doing the right thing by redoing the paysheets and paying back the missing money.

Q.	What do you want us to do with this case.

A.	It is up to you, But I know I made a mistake in the way I carried out my duties”.”

From these excerpts, it can be reasonably inferred Appellant was conceding failure to take care of public funds. This is the offence with which he was charged.

It appears, from Appellant’s grounds of appeal, he fundamentally misunderstood the charge against him.  He either misunderstood or was deliberately avoiding the issue.  He focused on theft or misappropriation of funds and was at pains to point out that he was acquitted of these charges after a criminal trial.

Appellant, it seems, failed to appreciate the difference between criminal and disciplinary proceedings.  The standard of proof is different, even the scope of the charges differs significantly.  In Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500, it was held, inter alia, that in a civil case the standard of proof is never anything other than proof on a balance of probabilities.

The Appellant cannot therefore rely on his acquittal in a criminal court as a basis on which to be absolved from liability on the misconduct charges.  The employer has a discretion to pursue disciplinary charges, framed in terms of the applicable misconduct regulations.

The findings made by the Disciplinary Committee are consistent with the facts on record, and the charges preferred against the Appellant.  He was charged with negligent or inefficient performance of duties, and failure to take reasonable care of or account for public money.

The Appellant tried to impugn the record of the disciplinary proceedings, by alleging that it was fabricated or doctored.  There was however, no basis for the allegation.  It was just a bald assertion.  It is inconceivable that the panel, composed of senior civil servants, would gang up against Appellant.  They had nothing to lose or gain from his conviction or acquittal.  In my view, they carried out their duties dispassionately and professionally.

As shown on the record, Appellant kept the cash in question in a cupboard for 3 weeks until it went missing.  He could not tell at what stage it went missing.  He made clandestine attempts to regularize the shortfall by recreating paysheets, and replacing part of the money.  The issue was not disclosed to key superior personnel, that is, the District Medical Officer and the Accountant.  These are the ones who should have been the first to be informed if he encountered any difficulties or challenges in the custody and disbursement of the monies.  He did not inform them.  He had no explanation why they were kept in the dark about such an important matter.

Faced with these facts, the Disciplinary Committee, in my view, properly exercised its discretion in finding Appellant guilty of misconduct as charged.  There is nothing unreasonable or grossly misdirected in its findings.  It is settled law that an appeal court will not easily interfere with the factual findings of a lower tribunal, unless such findings are so gross as to defy logic.  In the case of Innscor Africa (Pvt) Ltd v Letron Chimoto S.C. 6/12 the court started, at page 2 of the cyclostyled judgment:

“A principle has now been firmly established to the effect that an Appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

In Mashonaland Turf Club v George Mutangadura S.C. 5/12, the same principle was clearly stated.  The Court had this to say at page 3 of the cyclostyled judgment:

“In the exercise of their powers in terms of S12B (4) of the Labour Act, the  Labour Court and arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it.  In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

I do not find, on the facts of this matter, a basis on which to interfere with the discretion of the Disciplinary Committee, both in respect of liability and penalty.  In the circumstances, it is accordingly ordered that;

The appeal be and is hereby dismissed in its entirety.

There shall be no order as to costs.

..…………………………………………………….

Manyangadze J