Howard Kazembe v Minister of Primary and Secondary Education & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
LC/H/116/2016
HARARE, 11 FEBRUARY 2016
CASE
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/116/2016

HARARE, 11 FEBRUARY 2016    		         	CASE NO. LC/H/469/15

AND 4 MARCH 2016

In the matter between:-

HOWARD KAZEMBE					Appellant

And

MINISTER OF PRIMARY AND				1st Respondent

SECONDARY EDUCATION

And

CIVIL SERVICE COMMISSION				2nd Respondent

Before Honourable P. Muzofa, Judge

For Appellant		E.E. Matika (Legal Practitioner)

For Respondent		Ms Chanduru (Civil Division)

MUZOFA, J:

The appellant is a teacher who at the time of dispute was based at Diggleford Primary School.  Following allegations of misconduct that he solicited for a bribe and conducted extra lessons he was charged for misconduct.  He was found liable on the second charge that he conducted extra lessons and not liable on the first charge.  A penalty of $200, a transfer to Mudzi District and a reprimand was imposed.

The appellant appealed against the penalty.

According to the appellant the penalty was excessive considering the gravity of the offence and the circumstance it was committed.

Both the appellant and respondent correctly set out the law in respect of the powers of an employer in the determination of a penalty.  It is now an established principle of our law that the issue on the appropriate penalty is an exercise of discretion by the employer.  An appellate court should not be quick to 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 Innscor Africa (Put) Ltd v Chimbote SC 6/12 and Toyota Zimbabwe v Pasi SC 55/07.

In this case the factors taken into consideration by the authority were that the appellant had a previous conviction.  Appellant argued that it was irrelevant in that it was not a similar charge to the one he had been found liable for.

The previous charge was a contravention of section 44 (2) (a) as read with paragraphs 2, 4, 6 and 24 of the first schedule of the Public Service Regulations “the Regulations”.  It was alleged he had inflicted corporal punishment on pupils in defiance to an instruction prohibiting such conduct.

The current charge was a contravention of Section 44 (2) (a) read with paragraphs 3, 13 (a) and 24 of the Regulations failure to comply with a circular prohibiting conducting extra lessons.

According to appellant the misconduct was different.  The respondent submitted that the bottom line was that the appellant failed to comply with instructions in the form of circulars.  It does not matter what conduct he later did but he showed a propensity to disregard set circulars.

I agree with the respondent the appellant had a relevant previous misconduct and it lagers is the position the law see Standard Chartered Bank Zimbabwe Ltd v Richardson 2000 (1) ZLR SC.  In my view the appellant was lucky to escape with a penalty less than a dismissal in face of a previous misconduct.

The authority properly took into consideration the previous misconduct and thereupon exercised its discretion.

The appellant failed to show how the authority exercised its discretion injudiciously as alleged.  The circumstances of the case where a circular was issued, a meeting convened and the circular read to teachers including appellant then thereafter the appellant contravenes it cannot be said to be a little matter.

The appeal has no merit accordingly the following order is made.

The appeal be and is hereby dismissed.

The penalty imposed by the authority is hereby confirmed.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners