Judgment record
Lordwell Fani v Parirenyatwa Health Services Board
[2013] ZWLC 152LC/H/152/20132013
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/152/2013
HELD AT HARARE ON 23 JANUARY, 2013 CASE NO. LC/ H/52/2012
In the matter between
LORDWELL FANI - Appellant
And
PARIRENYATWA HEALTH SERVICES BOARD - Respondent
Before The Honourable L. Kudya, President
For Appellant - Mr P. Chakabuda (Unionist)
For Respondent - Mr M. Bamu( H. R Officer)
KUDYA, L
This is an appeal against the decision of the Respondent Health
Services Board which upheld the Appellant’s dismissal on charges of ferrying
unauthorized passengers in the Respondent’s bus.
The brief facts of the case are that: Appellant who was employed as a
driver by the Respondent was seen by his superiors on 4 June 2011 ferrying
unauthorized passengers in a bus belonging to the Respondent and clearly
marked so.
He was charged for the offence and discharged from his employment.
Aggrieved by the dismissal, he unsuccessfully appealed to the Health
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Services Board. The Board dismissed his appeal .He then appealed to this
court against that dismissal urging it to reinstate him to his original position
without loss of salary and benefits.
JUDGMENT NO. LC/H/152/2013
The basic grounds of appeal are as set out below:
1.That the Board erred by upholding the Disciplinary Authority’s decision to
find Appellant guilty of misconduct which was not specified in terms of the
Health Service Regulations.
2. The dismissal penalty was too harsh given the merits of the case.
3. The Appellant was not given the record of the minutes of the Disciplinary
Authority for him to see whether these were in order or exaggerated.
4. Appellant disputes the minutes as they were not furnished to him
On the other hand Respondent argued that:
1. Appellant was found guilty of unauthorized and improper use of
government vehicle including the abuse of motor vehicles. He was found
pirating by two witnesses, agreed before the investigation committee and
he pleaded for forgiveness.
2. Appellant’s misconduct was so gross as he abused State property causing
wear and tear for personal gain. He is inconsistent as he stated first that,
each passenger paid 5 rand but before the Appeals Committee he indicated
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that he did not get any money from any of the passengers. In the
circumstances the dismissal penalty was therefore well placed.
A reading of the appeal grounds as well as the other papers in the
record show clearly that the Appellant was and is still in disagreement with
the penalty meted out in his case and not the guilty verdict. In the result,
this court is of the view that no meaningful purpose would be served by
addressing some of the
JUDGMENT NO. LC/H/152/2013
issues which were raised by the Appellant which tend to suggest that he did
not receive a fair trial.
What comes to mind first is his argument about the record of
proceedings. Page 19 of the record shows that, he waived his right to
appear before the Disciplinary Committee to give evidence in his case. His
case was therefore deliberated and determined in his absence as provided
for in the Respondent Board’s regulations. He effectively consented to his
misconduct being determined without a hearing.
The provision in the Respondent’s code states thus:
”where there is no material dispute of fact and the member so consents in writing , the
disciplinary authority may proceed to determine the allegation without a hearing in
terms of section 45 provided that such a member shall not be deemed to have waived
his right to appeal against any determination made against him . “
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Placing this quote in the context of the Appellant’s written consent to
have the Disciplinary Authority exercise the above powers and the tenor of
his appeal, it is quite clear that no issues arise out of the verdict in his case.
The only point which may be of particular note is the argument that at
one point he argued that he ferried civil servants for free yet at another
stage he admitted that he had made all the passengers except the disabled
lady pay 5 rand each as transport fares.
The question which arises out of this piece of evidence is whether this
is what Appellant said or it is what was recorded by the minute taker as
having been his utterances. This is of particular importance as it has a
bearing on the
JUDGMENT NO. LC/H/152/2013
penalty which was meted out on the Appellant. If he asked for payment that,
truly increased his blameworthiness. If he did not then, the converse is true.
As regards the first ground of appeal, this seems to have merit if a
reading of the charge sheet is anything to go by .The charge sheet states:
” ----------I am charging you, Fani , Lordwell with misconduct for breaching
paragraph 9 of the First schedule section 2 of the misconduct acts(my emphasis )
which in part reads
Paragraph 9 “----------------making improper or unauthorized use of state property
----------------including motor vehicle duties”
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What is apparent from a reading of this charge is that, it does not
particularize what it refers to as a breach of “misconduct acts”. These are
not quoted so that it could be clear which provision Appellant was said to
have contravened.
The law is clear on ill citation of charges. In the case of Standard
Chartered Bank vs Matsika 1996 (1) ZLR 123 (S) it was stated that if the
defect in the charge is such as would go to the root of the offence itself
such is excipiable and can lead to the ill charged person being absolved
from his wrong doing on the basis of the defective charge .
Where however, the defect is of a minute nature and did not in any
way prejudice the person who was ill charged the defect complained of can
be ignored or put right by having the matter remitted so that the defect can
be cured.
In the instant case, it is clear that, notwithstanding the fact that the
charge sheet omitted particularity of what it referred to as “misconduct
acts” it
JUDGMENT NO. LC/H/152/2013
was couched with sufficient clarity to the extent that the Appellant clearly
understood what he was being charged with and what he admitted to as
having been his breach in the circumstances.
It is therefore, the court’s considered view that, the anomaly
complained of is of such a minor magnitude that it can not move this court
to alter the verdict which was arrived at in this case.
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In any event, even a reading of the case of Jockey Club of South
Africa and others vs Feldman 1942 AD 340 states that the test of upsetting
a decision on the basis of a procedural irregularity is prejudice. In the
instant case there is no evidence that the Appellant was prejudiced by the
alleged ill citation of the charge. The court is therefore satisfied that there is
no meaningful basis to uphold the first ground of appeal. It should
therefore fail.
The two grounds relating to the issue of minutes are basically
grounds of review and not appeal. The court however allowed them to be
addressed as they appeared, in view of the fact that both parties before it
were self actors. To refuse to deal with the issues they raised on the basis of
non compliance with the rules of court would be tantamount to denying
them justice.
The law pertaining to issues around records of proceedings is clear
that an omission around the record of proceedings is not fatal to the
proceedings unless it can be demonstrated that the Appellant was
prejudiced by it. In the instant case, it is clear that the Appellant’s guilt was
beyond question.
The only issue that irked the Appellant was the penalty which was
meted out. To that extent very little thus turned on the issue of the
record .In any event, he does not state clearly which part of the record he
believes was
JUDGMENT NO. LC/H/152/2013
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doctored or did not contain an accurate exposition of what transpired
during the proceedings. The court is therefore satisfied that those two
grounds have no good basis and should also fall away. This effectively leaves
the court with the penalty ground only.
Appellant cited the cases of Coh- Coh Enterprises vs Maturure and
another 2001(1) ZLR 131 and that of Zikiti vs United Bottlers as laying
down the principle that the imposition of a dismissal penalty is only
discretionary and not mandatory .Appellant argued that, since this was his
first infraction it was his view that the Disciplinary Authority ought to have
given him a second chance by giving him a warning and not to dismiss him
outright.
He underscored the fact that the alleged previous conviction of
negligent driving which the Committee seemed to have attached much
weight to had nothing to do with the misconduct which he stood convicted
of in the instant case.
A reading of the charge giving rise to the instant infraction does not
show that negligent driving is classified as a previous conviction in such a
case .This effectively leaves Appellant as a first offender for purposes of the
instant infraction. The question which this court had to answer was, whether
the Board misdirected itself by upholding the dismissal penalty on the basis
that Appellant was a repeat offender yet there was no evidence to that
effect.
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It is clear from the record that at some point Appellant admitted
receiving payment from the people he was ferrying. His conduct exposed
the Respondent to suits which could arise out of anything befalling the
passengers in question.
JUDGMENT NO. LC/H/152/2013
In the face of all these facts, the question is whether Respondent
could be faulted for having taken a serious view of the misconduct and to
have decided to dismiss Appellant notwithstanding his first offender status.
It is settled law that the Appellate the court can only substitute its
discretion where it has been demonstrated that the tribunal below it failed
to exercise its discretion judiciously. In essence, the question to be
answered is whether the decision arrived at by the lower tribunal was so
outrageous or irrational that it can only be concluded that it was actuated by
bias or malice.
In this case, the lower tribunal explained that what made it take a
serious view of the offence was the impact of the offence and the fact that
Appellant was not a first offender. The manner of recording of evidence by
the Respondent left a lot to be desired when viewed from the perspective of
the question and answer exchange in the record.
A good example is on page 26 of the record where the following is
recorded:
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Question “How do you rate the behavior of the two drivers generally”.
Answer “Their behavior is good. But cheating can be done by anyone. The two
drivers were once warned for such behavior. I think the other one was given a final
warning and the other one is on the quite side and is difficult to judge”
It is not clear as to who was said to be having previous convictions if
the above question answer exchange is anything to go by. If it was in
respect of Appellant then, that was in reference to the negligent driving
previous conviction. Reliance on such to satisfy the dismissal penalty was in
this court’s view a misdirection on the part of the Board.
JUDGMENT NO. LC/H/152/2013
Such reasoning was out of step with what was expected in a case
where the law stipulates clearly what happens to the various levels of
infractions. Departure should only have been on the basis of extraneous
facts which could demonstrate that the minimal penalty would trivialize the
infraction.
The court is of the view that the discipline should have been more
corrective than punitive. To that extent, the court is satisfied that the lower
tribunal exercised its discretion improperly and there is good basis for this
court to upset the penalty it meted out and to substitute its discretion for
that of the Board. The court is therefore satisfied that there is merit on this
ground and it therefore should be upheld.
I therefore ordered as follows:
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1. The appeal on the penalty ground being with merit be and is hereby
upheld.
2. The verdict is confirmed but the dismissal penalty is set aside and in its
place Appellant is reinstated with full pay and benefits from the day of his
dismissal but to be placed on a final written warning to subsist for a period
to be specified by the Respondent Board.
L. Kudya _____________
President: Labour Court
Z.F.T.U- Appellant’s representatives
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