Linda Chivero & Anor v Chitungwiza Central Hospital & Anor

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/333/24
HELD AT HARARE 24TH JULY 2024
CASE NO LC/H/453/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 24TH JULY 2024

AND

In the matter between

JUDGMENT NO LC/H/333/24

CASE NO LC/H/453/24

LINDA CHIVERO	1ST APPELLANT

And

GLADYS GUNIKA	2ND APPELLANT

And

CHITUNGWIZA CENTRAL HOSPITAL	1ST RESPONDENT

And

HEALTH SERVICE COMMISSION	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR BOTH APPELLANTS : T. SHADRECK

FOR BOTH RESPONDENTS :C. CHITEKUTEKU

MAKAMURE J:

The first respondent is one of the major hospitals in Zimbabwe. It is also a registered school of nursing . It falls under the jurisdiction of the 2nd respondent. In its capacity as a school of nursing, 1st respondent has the duty to train students as nurses. Upon qualification as nurses its students have the duty to look after the sick and they perform such duties in various medical facilities countrywide including the 1st  respondent itself. The parent body for both respondents is the Ministry of Health and Child Care ( the Ministry).

The appellants were employed by the respondents as Nurse Tutor and Allocation Officer respectively. Both were stationed at Chitungwiza Central Hospital, 1st respondent.

During the course of performing their duties anonymous complaints were raised against them by student nurses. Such complaints touched on the integrity of the two appellants and consequently on the integrity of both respondents. Complaints were basically that the appellants were involved in corrupt activities which included forcing students to pay money as a form of punishment; being harsh and insensitive to student nurses and threatening them with failure if they (the students) failed to comply with the appellants’ demands; forcing students to buy products like nurses’ watches, jerseys, shoes and books at double their prices specifically from Ms Gunika ,2nd appellant. As a result of the complaints, the respondents carried out investigations. Such investigations resulted in the two being separately charged for violating s2.22 of the First Schedule of the Health Service Regulations , Statutory Instrument 117 of 2006( S.I.117/2006) that is:

‘ Any act or omission which is inconsistent with or prejudicial to the discharge of official duties , including the abuse of authority. ‘

Disciplinary hearings were conducted but no oral evidence was led. In view of the absence of oral evidence in support of the allegations, the Disciplinary Authority referred the matters back for further hearings. Investigations were conducted and further hearings were  conducted. During the second hearings, oral evidence was called. The appellants were convicted. They were penalized with dismissal . Aggrieved by the outcome , the appellants appealed to this Court on the following grounds:

‘The Health Service Commission misdirected itself and erred at law by concurring with the findings , verdict and decision made by the Disciplinary Authority which wrongly relied on the recommendations of the Disciplinary Committee dated 3 January 2024 in the circumstances where it was improper for the said Disciplinary Committee to assume

jurisdiction over the same matter which it had already heard, determined and concluded on 22June 2023 and was therefore functus officio.

The Health Service Commission misdirected itself and erred at law in its decision in failing to find that it was improper for the Disciplinary Authority to rely on the recommendations of the Disciplinary Committee dated 3 January 2024 which were a result of new evidence which should not have been led and accepted in the purported second disciplinary hearing by the said Disciplinary Committee in terms of the Health Service Regulations, 2006.

By upholding the verdict and decision of the Disciplinary Authority , the Health Service Commission misdirected itself and erred at law because the penalty of dismissal was meted on the Appellants without them being heard in mitigation first.

The Health Service Commission erred and grossly misdirected itself when it upheld the decision Disciplinary Authority (sic)which relied on the following facts which were not proven during the disciplinary hearing that :

Appellants were directly involved in collecting money from student (sic) as punishment which was not receipted through formal hospital system;

Appellants were involved in vending at the school of nursing where she forced student nurses to buy their wares at exorbitant prices(sic); and

Appellants threatened students with failure and back grouping if they did not comply with their demands.’

The sequence of events which led to the appellants mounting the present appeal are set out in more detail below.

In a letter dated 3 April 2023 the respondents formally charged Linda Chivero, 1st appellant

, 2nd appellant  . In a letter dated 14 April2023 the respondents formally charged Gladys Gunika. On 30 May2023 disciplinary hearings were separately conducted for the two . On 23rd  June 2023 the matters were referred back for further hearings. This was done in terms of S46(1) (a) of S. I. 117/2006. In order to facilitate the further hearings ,the appellants who were already on suspension from work had their respective suspensions extended. On 27 June 2023 the 1st appellant’s suspension was extended in terms of the following letter:

‘RE : EXTENSION OF SUSPENSION AND INVITATION TO A FURTHER HEARING, CHIVERO LINDA EC NUMBER 3015322Y: NURSE TUTOR: CHITUNGWIZA CENTRAL HOSPITAL

We refer to the above.

You are being invited for a further Disciplinary hearing for the above matter. This is in accordance with Section 46.1(a) of the Health Service Regulation S.I 117 of 2006.

Please note that the witnesses were not invited to the initial hearing and as such , they have since been invited to come and be cross examined in the further hearing. A special audit investigation committee from the Ministry of Health and Child Care will also present their findings and recommendations on the same matter.

You are hereby advised that your period of suspension is hereby extended up to the 21st of August 2023.This is in accordance with Section 49(3)(b) (i) of the Health Service Regulation. The order remains in force since the allegations are yet to be determined.

The hearing will be on the 26th of July 2023 at 1000 hours at Chitungwiza Central Hospital in the AIBST Board room

Please find attached the Ministry of Health audit report and witness reports.’

A similar letter dated 10 July 2023 was written to the 2nd appellant. The hearing was also to be conducted on 26th of July 2023 at the same venue as for the 1st appellant.

Following the conclusion of investigations and on 15th  November 2023 , further hearings were conducted. Witnesses were called .

At the commencement of the second or further hearing, an objection was raised on behalf of the 2nd appellant on the basis that the matter had already been heard to finality. The Chairperson of the Committee ruled that the initial hearing did not conclude the matter and that the appellants were not formally advised of any decision made by the Disciplinary Authority. Further there was need for oral evidence to be led and that the absence of oral evidence was the major malady which afflicted the initial hearing. Reference was also made  to a ruling of this Court (Honourable Kachambwa J) which ruled, among other things, that domestic proceedings be completed before this Court was approached. The Chairperson of the Committee ruled that provisions of S46(1) (a) of S.I. 117/2006 provided for the situation that presented itself. Parties held different interpretations of the said provisions. The Chairperson having considered the above -mentioned provisions, ruled that it was proper that the hearings should proceed. The appellants were heard separately. Where the evidence overlaps, this will appear in the evidence. The oral evidence with respect to them is indicated below.

The Auditor’s Evidence

At the 2nd hearing, Mr Mushamiri, an auditor who conducted an audit at the school of nursing was called. He told the committee that following an outcry from students, which outcry reached the ears of the Permanent Secretary of the Ministry, a need arose to find out exactly what was happening at the school of nursing. As a result, a team of auditors was assigned to

go and investigate what was happening at the school of nursing , 1st respondent. Mr Mushamiri led that team. Its report would not only be submitted to the Permanent Secretary of the Ministry, but would be shared with the Ministry of Finance as custodians of public funds. The Auditor General would also get a copy of the report. In his evidence, Mr Mushamiri told the committee that money cannot be collected from government institutions without issuing receipts and further that there is an official banking account which is  provided by the Ministry of Finance, on application. He observed that students were not comfortable in providing information and feared the outcome and they wanted to be guaranteed their security. He further observed that tutors at the school of nursing, ‘ pleaded some sort of ignorance even when it seemed it is public knowledge that something was happening at the school ...’ Mr Mushamiri told the Committee that it was not permissible for students to pay penalties . Any penalties at all are set by the (appropriate) authority and are subject to approval. He further stated that in the Ministry there was nothing like that. His evidence provided guidance to the Committee on what is and what is not permissible. His evidence was therefore not directed at a particular person .His evidence is relevant to both 1st and 2nd appellants.

Some students were called to give evidence on what they knew about the allegations being levelled against the appellants. In this judgment the student witnesses will simply be referred to as student(s) or 1st or 2nd student etc, without necessarily disclosing their identity.

LINDA CHIVERO (1st Appellant)

A student told the Committee that at one time the students were told to pay for a leavers’ party . The student was not going to attend . There were , also some other students who were not going to attend that party. This student is one of those who did not pay. When 1st appellant heard this, she went to the class and threatened those who had not paid .1st

Appellant used rather strong and unprintable language to threaten the non-compliant students

. This was said in front of the whole class. The payment was therefore compulsory. As a  result of the threat, the student paid the money. Although she did not know who organized the party, the student said that it was the group representatives who told other students to pay.

This student also told the committee that she never paid money for punishment.

At the conclusion of the testimony the Chairperson of the Committee asked the  parties to make their submissions in mitigation and aggravation respectively. Thereafter the Committee recommended that the 1st appellant be severely reprimanded coupled with a severe warning  of dismissal should she repeat a similar offence ; that she be transferred to another hospital and that a month’s salary be forfeited. The recommendations were duly referred to the Disciplinary Authority. The Disciplinary Authority in its discretion, penalized her with dismissal.

GLADYS GUNIKA(2nd Appellant)

The first student to testify in support of the allegations against 2nd appellant joined the  school of nursing,1st respondent , as a student nurse in September 2022. He belonged to the 2022 class called Group C2022. He told the Committee that  on 25th October 2022 , 2nd appellant in the company of 1st  appellant came to his class. The appellants jointly appointed him as the class treasurer. This happened in front of the whole class. This came as an instruction from the appellants whom he identified as his tutors. Subsequent to that appointment he collected money from his classmates for books, scissors ,uniforms and for punishments. He handed amounts of USD225, USD103, USD700 respectively ,at different times, to the 2nd appellant. At each instance he would be in the company of the class representative , another student nurse .He said he was working under the instruction of his tutors, the appellants, which was his obligation. Further the instruction came with a threat that

failure to comply would lead to one failing their examinations. He only reported the matter because his colleagues started to complain and accused him of being part of Ms Gunika’s ‘team’. This student would hand over the money to 2nd appellant together with the list of students who would have contributed. Upon receipt she ( the 2nd appellant) would sign at the bottom of the paper but would not allow a photocopy of that paper to be made . Under cross examination he maintained his testimony and even suggested that if there was any doubt with respect to his testimony , there were ‘ whatsapp’ messages where the appellants were following up on those students who would not have paid. Part of the exchange between  the appellants’ legal practitioner and the student during the course of the hearing is as follows (Resp & Stud):

‘Resp: You failed to differentiate the items you were collecting money for.

Stud: I mentioned that there were money(sic) collected for different things like PA system, tonners, uniforms and punishments among other things. I would write the name of the person who paid, the amount paid, the item paid for, and the balance there is. I would sum up the total of the money submitted that day. How have I failed to differentiate them?

Resp: Were the items given to you for distribution?

Stud: Ms Gunika would comer (sic) to class and distribute the items in front of everyone. I was only in charged (sic) of collection money as per their instructions and not out of my own mind. If you remember Ms Gunika we photocopied a book for 200 bond, when you had said it was going for USD$5. When I told you this in class you called me to your office and said “tinoita zvepano” (loosely translated “we do what we have to do here”, but in the vernacular it is a threat showing a non-negotiable situation).For your own information we had been given the copy by the librarian, he knows about the abuse.

Resp: What was the anomaly in selling items that are used during training?

Stud : I personally without hesitation would say that we were forced to buy items and they were sold to us at exorbitant prices. For example the Anatomy and Physiology book was sold at USD$75 yet you get it at USD$35, the dictionary we got for USD$25 are(sic) going for USD$10.’

The student insisted that 2nd appellant forced students to buy the mentioned items and that there were consequences for students if they did not buy. On her part the 2nd appellant told  the Committee that she knew the student and that she usually saw him when he was on the wrong side of the law. She also said that this particular student was talkative and that she had reprimanded him and told him not to step on her toes. 2nd appellant also said she had counselled the student and had shared her concern for the student with the Principal Tutor.2nd appellant denied appointing the student as a treasurer and denied having any transaction with him apart from giving him his position as a student. The student was excused and another student nurse was called to give evidence.

The 2nd student was the class representative. He told the hearing that there was an outcry from students against the payment of money for tonner, punishments and being forced to buy things including books and uniforms at exorbitant prices. The books were distributed by the 2nd  appellant and one Mr Mawire. He confirmed accompanying the 1ststudent nurse , the treasurer, to handover the money to 2nd appellant and on one occasion 2nd appellant was not in the office so the money was handed over to a Ms Chizanga. The student insisted that the students got everything required for nurse training from the School of Nursing and that these items were distributed by the 2nd appellant. Under cross examination he maintained his stance and confirmed the testimony of  the 1st student nurse that upon receipt of the money 2nd appellant would sign the paper containing the list and would retain it. He further told the Committee that, as the class representative , ‘the protocol’ was that he would accompany the treasurer when going to hand the money over. The 2nd student told the hearing that he

thought that it was the 1st respondent’s policy to force students to buy items from tutors because reports from their seniors showed that this has always been happening. When she was given a chance to put questions to this witness, the 2nd appellant said she only knew this student because he brought her some money on ‘civics day’ and that he used to come in the company of his deputy. She had no other questions for him. After this student was excused, another (3rd ) student was called . The 3rd  student identified the 2nd appellant. He told the Committee that (in part ):

‘I know her as one who forced student nurses  to buy products related  to the practice from her and forcing student nurses to pay money as a form of punishment for anything that they qualified as misbehavior …Ms Gunika sold us an Anatomy and Physiology book just a week before we got our first allowance. She mentioned that everyone should have the book by tomorrow at 1000am, that means we had no time to buy it elsewhere and also had no option but to get the books on credit from her. Knowing very well that we were going to receive our allowances in a week’s time (sic)… All what they were doing at the school of nursing was achieved through intimidation …’.

This 3rd  student also had copies of ‘whatsapp’ messages and pictures which showed that Ms Gunika, 2nd appellant, forced students to purchase a PA system. The testimony of the 3rd student corroborated what the 1st  and 2nd  students told the Committee on all material respects. 2nd appellant on the other hand, told the Committee that the 3rd student used to go to her office with requests relating to his social life , that she genuinely assisted him and did not expect to hear what he told the Committee from him. As for the PA system, 2nd appellant told the Committee that she heard that it was purchased from contributions made mainly by a certain pastor .However, just like what she did with the with the other two students who testified against her, there was no meaningful challenge or cross-examination of the evidence led by the 3rd student in support of the allegations which were levelled against her.

At the conclusion of the hearing the Chairperson asked the parties to make their submissions in mitigation and aggravation respectively. The Committee recommended that 2nd appellant be dismissed. The recommendations were duly submitted to the Disciplinary Authority. The Disciplinary Authority in its discretion, penalized 2nd appellant with dismissal.

I will now refer to the applicable legislation that is, provisions of S.I. 117/2006 .When the 1st respondent extended the appellants’ respective suspensions and referred the matter for a further hearing, it did so in terms of S46.1(a) of S.I. 117/2006.

S46(1( (a) of S.I. 117/2006 provides:

“(1)On receiving the documents referred to in section 45(6)  the disciplinary authority may-

) refer the matter back to the disciplinary committee for further hearing.”

AND

S45(6) provides as follows:

“(6) At the conclusion of the hearing or as soon thereafter as possible, the chairperson of the disciplinary committee shall submit to the disciplinary authority-

a notification in writing of its findings and recommendations thereon , including a recommendation as to the penalty to be imposed upon the member where it finds the member guilty of misconduct; and (b) the record of the evidence led at the hearing.”

In the present matter the Disciplinary Committee found that after the initial hearing the allegations against the appellants were not substantiated and therefore no wrongdoing was established and its recommendations were that the appellants be found not guilty and the suspensions be uplifted so that the appellants would be respectively reinstated. Upon receipt of the recommendations the Disciplinary Authority on 23rd June 2023 referred the matter back in terms of S46(1)(a) for a further hearing. This is the hearing which resulted in the

appeal now under scrutiny. The question is: was it proper for the 2nd hearing to be conducted? S46(1)(a) provides for a situation like the present one. The initial hearing had no tangible evidence against the appellants. The Disciplinary Committee made the relevant recommendations as was expected of it. The Disciplinary Authority guided by the ,provisions referred to above sent the matter for a further hearing. I think it was within its rights to do so. So, both the Disciplinary Committee and the Disciplinary Authority acted in terms of provisions of S.I. 117/2006. The answer is therefore that it was proper for the further or second hearing to be conducted. In Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140(S) the Supreme Court stated that: ‘ The law on this point is very clear in that once a matter has been finalized by a court that court becomes functus officio. It has no authority to adjudicate on the matter again.’ In the present matter, the Disciplinary Authority did not finalize the matters but instead it sent them back for further evidence to be heard.

What this means is that under the circumstances of this case, the Disciplinary Committee cannot be held to have become functus officio. After the initial hearing it made recommendations to the Disciplinary Authority. The Disciplinary Authority sent the matter back to the Committee with instructions. In my understanding the final say comes after the Disciplinary Authority has considered a matter and pronounced a decision on the person affected.

When consideration is made to the first ground of appeal, the question of the Disciplinary Committee having become functus officio does not arise. The Committee was acting in terms of the applicable legislation and as directed by the Disciplinary Authority.

On the 2nd ground of appeal , the fact that there was no tangible evidence during the initial hearing is exactly why the Disciplinary Authority referred the matter back for a further

hearing. The Disciplinary Committee heard evidence which it had not heard before. This is in terms of the applicable legislation. Thus, there is no merit in this ground either.

On the third ground, the Chairperson asked the parties to submit their mitigation at the conclusion of the hearing and before verdict. The appellants were legally represented at all times. They did not complain about this at the time. They cannot raise it now on appeal. In any event it is a reviewable issue which should not be raised on appeal

The fourth ground of appeal takes issue with the fact that the appellants were not directly involved in the conduct complained of; that the appellants were not involved in the unauthorized sale of school requirements and that they did not threaten students.

However,the overwhelming evidence led ,which in the main remained unchallenged, showed that the appellants intimidated or threatened students into either making payments which are not in terms of the parameters set by the Ministry or caused students to buy school requirements at exorbitant prices and again without the authority of the Ministry. That was clearly conduct inconsistent with or prejudicial to the discharge of their official duties. By engaging in that conduct, the appellants also abused their authority. The appellants cannot say that they were not directly involved. The students complied with threats from the appellants. Had the appellants not threatened the students , complaints would not have arisen. The submission of the students into paying for or buying items at exorbitant prices was a direct consequence of the appellants’ unlawful  conduct. The appellants were directly involved. They are trying to hide behind their little fingers. There is therefore no merit in the fourth ground of appeal.

The appellants abused their offices. They took advantage of and exploited vulnerable students. That conduct clearly dents the reputation of both respondents. It paints a dim picture

of the first respondent, an institution , which by its mere existence, is held in high regard not only by its clients but by the country at large. The conduct by the appellants was abhorrent. It was clearly reproachable. They set bad examples for the students who they are supposed to be mentoring .They should not be allowed anywhere near student nurses. Their conduct brings the respondents into disrepute. Such conduct must be condemned in the strongest terms. The appellants should not be allowed to continue in their revered posts. They are a threat to the proper running of institutions such as the 1st respondent and ultimately to the health of the nation in that they instill dishonest tendencies in future health care givers.

It is trite that in labour matters the standard of proof is on a balance of probabilities. Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd SC31/13. In the present matter the appellants have not discharged the onus required of them before this Court. On the other hand, there was overwhelming evidence against them before the earlier tribunal. This Court found that there is no merit in all the grounds of appeal. There was therefore no error on the part of the respondents’ Disciplinary Authority. The appeal can only fail.

In view of the foregoing it is ordered that : 1.The appeal be and is hereby dismissed. 2.There is no order as to costs.

CHIKORE &CHIGWAZA LAW CHAMBERS, APPELLANTS’ LEGAL

PRACTITIONERS.

CIVIL DIVISION OF THE ATTORNEY GENERAL’ S OFFICE, FOR THE

RESPONSENTS.