Martha Hove v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/190/24
HARARE 19 FEBRUARY 2024 & 25 APRIL 2024
CASE NO LC/H/903/23
MARTHA HOVE
APPELLANT
HEALTH SERVICE COMMISSION
RESPONDENT
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MUSARIRI, J:

On the 7th September 2023 respondent’s Disciplinary Authority (DA) found appellant guilty of misconduct. As penalty she was transferred from Zvishavane District Hospital to Mberengwa District Hospital. Appellant then appealed her conviction and penalty to respondent (Commission) who dismissed the appeal on 17th October 2023. Appellant then appealed to this Court in terms of Section 52 of the Health Service Regulations. S.I. 117 of 2006. Respondent opposed the appeal.

The grounds of appeal were septet thus,

“1. The Commission misdirected itself and erred at law in making an unreasonable decision in that its decision was not based on any proven facts and no reasons were preferred for its decision despite request.
2. The Commission misdirected itself by failing to uphold the point in limine raised by the appellant that the Provincial Medical Director cannot be the disciplinary authority in a case involving a junior employee based at a district hospital.
3. The Commission misdirected itself and erred at law by failing to uphold the preliminary point by the Appellant that raising a genuine grievance as per the provisions of Part IX of SI 117 of 2006, Health Service Regulations 2006 could not be treated as an act of misconduct which move was clearly contrary to the very purpose of the grievance procedure and basic principles relating to fair employment practices thereby prejudicing Appellant in the process.


4. The Commission misdirected itself and erred at law in finding Appellant guilty on the charges despite the findings and recommendations of the disciplinary committee which does support the charges and did not point to the guilty of the Appellant thereby resulting in a discordance between the guilty verdict and the findings and recommendations of the disciplinary committee which heard the matter.

5. The Commission misdirected itself and erred at law in making a decision to transfer the Appellant from Zvishavane District Hospital to Mberengwa Hospital without giving the appellant an opportunity to make representations on the issue of transfer thereby not only violating the principles of natural justice but that move showed bias and interference in the Disciplinary Committee which could not just recommend such specific transfer without anyone advising them of same.

6. The Commission misdirected itself and erred at law in making a decision to transfer the Appellant from Zvishavane district Hospital in contravention of the Health Service Regulations (clause 50(1)(i) of the Health Service Regulations), which provides for transfer to another department and not to another station.

7. The Commission erred and misdirected itself in the circumstances where Appellant was not guilty by proceeding in terms of (clause 50(1)(i) of the Health Service Regulations) instead of in terms of clause 13 of the Regulations which calls for planning to minimize discomfort.”

These diverse grounds of appeal raise 3(three) issues which shall be dealt with ad seriatim

**1 Whether the Commission and Disciplinary Committee dealt with the preliminary points raised by appellant:**

The matter was heard by the Disciplinary Committee (DC) on 14th July 2023. The first preliminary point queried the authority of District Medical Officer (DMO) to appoint the DC. The challenge was put in the following terms

“If it is the DMO of Zvishavane we highly question the partiality of the same committee because he is the key complainant in the matter.”

The response to the challenge was

“No, we were appointed by the Provincial Medical Director (PMD).

The response was not refuted and thus stands uncontroverted.

The second point was it was improper to change appellant for raining grievances. The charge letter amongst other allegations stated.

“5 There is also a bad relationship between yourself and the District Medical Officer as you continuously write grievance letters against him despite the fact that the PMD wrote a letter addressing the same issue you are taking you to the secretary for health.”


The Disciplinary Committee dealt with that aspect as follows

“You raised the issue of the grievances, we went through and it is correct but when you were aggrieved by the time you state the complainant, you, you don’t stop working whilst waiting for response. Do you agree?
Yes, we agree.”

The issue was not taken further. It was not even mentioned in the DC’s findings and recommendations. The third and fourth points related to investigations done prior to the charges. It was wrong to argue that investigations should have awaited conclusion of appellant’s grievances as there is no basis for such. It was also argued that the record of the investigation was not a true reflection of what happened. That was noted by the DC in its 4th finding that “There are typing errors in the investigation minutes.”. The fifth point was that the charges were “vague and (sic) splitted”. In its 5th finding the DC noted that “The charge was split into 5 encompassing to insubordination.” Insubordination is an offence as it is covered in paragraph 4 of the “Acts of Misconduct” set out in the First Schedule to the Regulations.

2. Whether the Commission erred in upholding appellant’s conviction despite contradictions between the verdict and findings and recommendations of the Disciplinary Committee:

The findings of the DC were six-fold thus

“1. Findings filed DHE minutes were dated 29 November 2022 but in the investigation minutes they were recorded 16 December 2022.
2. Two different copies of the same DHE meeting were filed (29 November 2022) Indicating that the minutes might have been tampered with
3. Phiri acquired qualification in 2014 and Hove acquired in 2018 which led Phiri to be appointed as Head of Human Resources Department.
4. There were typing errors on the investigation minutes/
5. The charge was split into 5 encompassing to insubordination.
6. Working relationship in the Human Resources department is irreversibly broken down and the involved parties cannot work together, the Head of Department and Ms Hove.
Recommendations
We recommend Ms Hove to be transferred to Mberengwa on same grade and salary.”


Then in the letter dated 7 September 2023 the PMD found appellant “guilty as charged” He imposed the penalty of transfer from Zvishavane to Mberengwa.

Trouble is that the DC did not find appellant guilty of misconduct at least not explicitly. There is nowhere in its findings and recommendations that the DC found appellant guilty. Yet the PMD found her guilty. His letter does not state the basis upon which his verdict was rooted. The only document which contained something to incriminate appellant was the investigation report. However, the findings by the DC trashed the document as tampered with. Thus, the PMD’s verdict remains hanging in there without a foundation.

In its heads of argument respondent relied on the following quote,

Nyahondo v Hokonya 1997(2) ZLR 475(S)
“An appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic and accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

The case and quote in fact support the appellant in casu. It is the PMD’s verdict which defies logic as it is not supported by the findings of the DC which he set up.

3 Whether the penalty of transfer was consistent with the relevant provisions of the Health Services Regulations:

The resolution of the $2^{\text{nd}}$ issue provides the answer to the $3^{\text{rd}}$ issue. The transfer as a penalty was unwarranted because there was no valid basis for the guilty verdict. If a transfer was necessary for administrative purposes that should have been done strictly in terms of section 13 of the Regulations but not as a disciplinary measure under section 50(1).


CONCLUSION

The $2^{\text{nd}}$ issue turned out to be the critical issue which resolved in favour of appellant. In the circumstances the appeal abounding with merit as it does, ought to succeed.

Wherefore it is ordered that

1. The appeal be and is hereby allowed;

2. The ruling by the respondent dated $16^{\text{th}}$ October 2023 is set aside;

3. The determination by the Provincial Medical Director (PMD) dated 7 September 2023 is set aside and substituted with a not-guilty verdict;

4. The transfer of appellant by respondent from Zvishavane to Mberengwa is set aside; and

5. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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