Masimba Mangwarira v Public Service Commission & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/591/16
HELD AT HARARE 1 MARCH 2016
CASE NO
JUDGMENT NO LC/H/591/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/591/16

HELD AT HARARE 1 MARCH 2016				CASE NO LC/H/1055/15

& 23 SEPTEMBER 2016

In the matter between:

MASIMBA MANGWARIRA					Appellant

And

PUBLIC SERVICE COMMISSION				1st Respondent

And

SECRETARY FOR PUBLIC SERVICE				2nd Respondent

And

MINISTER OF AGRICULTURE MECHANISATION		3rd Respondent

& IRRIGATION DEVELOPMENT

Before The Honourable Makamure J

Appellant			In person

For Respondents		T S Musangwa (Civil Division)

MAKAMURE J:

The appellant was employed as an extension officer under “Agritex” which is a department of the 3rd respondent.

His duties included working with rural communities and involved communications with the various office holders there.  During the course of his duties, “inputs” or tools to empower farmers were distributed.  The local councillors were responsible for the distribution of these inputs.  At the conclusion of one such distribution the local councillor gave appellant a 50 kilogram bag of fertilizer known as “Compound D”.  This was a token of appreciation.  Investigations into the distribution of the inputs revealed this.  He admits this and this is contained in his report which is at page 34 of the record.  Disciplinary proceedings were conducted.  He was charged with four offences but he was convicted of only one of them i.e. any act or omission which is consistent with or prejudicial to the discharge of official duties, including the abuse of authority.

This is a violation of paragraph 24 of the First Schedule of the Public Service Regulations 2000, Statutory Instrument 1 of 2000 (S.I. 1/2000).  He was penalised with dismissal.  He appeals that dismissal penalty.  He avers that the penalty was excessive under the circumstances.  It is common cause that the appellant is in full time employment with government.  He is entitled to a salary therefrom.  Any other form of remuneration even a gift from government clients is not acceptable without his employer’s consent.  Appellant received one fifty kilogram bag of fertilizer as a token of appreciation.  He did not inform his superior nor did he seek clearance to receive the said token of appreciation.  That was conduct which is inconsistent with the terms of his contract of employment.  He returned the said bag after investigations had been concluded.  However that does not cure the misconduct.

Further it is now an established principle of our law that once an employer has considered the seriousness of an act of misconduct and decides that dismissal is the appropriate penalty, an appeal court cannot interfere with the employer’s discretion.  See Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12 where the Supreme Court held as follows:

“A principle has now been firmly established to the effect 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 the result there is no merit in his appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed.

There is no order as to costs.

Civil Division of the Attorney General’s Office, respondent’s legal practitioners