Merciline Mutukura v Disciplinary Committee Chairperson Sally Mugabe Hospital & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/114/24
HARARE, 29 JANUARY, 2024
CASE NO. LC/H/895/23
AND 15 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/114/24 HARARE, 29 JANUARY, 2024		CASE NO. LC/H/895/23 AND 15 MARCH 2024

MERCILINE MUTUKURA

Versus

DISCIPLINARY COMMITTEE CHAIRPERSON SALLY MUGABE HOSPITAL

SALLY MUGABE HOSPITAL

THE HEALTH SERVICES COMMISSION

APPELLANT

1ST RESPONDENT

2ND RESPONDENT

3RD RESPONDENT

Before the Honourable Kudya J;

For the Appellant	- Vitorini N.L. for C. Tafirei (Legal Practitioner) For the Respondents		- Ms R.B. Madiro (Civil Division)

KUDYA J:

This is an appeal against the decision of the respondent’s employer which resulted in appellant being dismissed from work following allegations of having received money as payment for blood transfused on a patient yet such blood was obtainable for free at the hospital and for having administered the transfusion without following laid down procedure. The attack is both on the verdict and penalty. Respondent employer is opposed to grant of appellate relief citing the fact that no good case for appeal has been made out by the appellant.

Appellant cites the following as his appeal grounds;

The disciplinary committee chairperson failed to keep or cause to be kept an accurate record of the substance of the evidence at the hearing thus failed to comply with Section 45(5) Health Services Regulations 2006.

The hearing did not comply with Section 45(2) of the Health Services Regulations in that;

The disciplinary chairperson did not hear evidence from any of the alleged persons who allegedly paid money to the appellant.

The chairperson refused to allow appellant to use the criminal record in the disciplinary proceedings to the appellant’s prejudice.

The chairperson allowed evidence of the witness to be heard in the absence of the appellant.

The hospital and the board erred in failing to justify why they had acted on the flawed proceedings and findings of the chairperson.

The respondents convicted the appellant when there was no evidence that she had engaged in corruption or dishonesty or had committed any act or omission inconsistent with her duties.

On sentence appellant stated that;

The respondents misdirected themselves in failing to consider the good behaviour of the appellant and her work record.

The respondents failed to take into account that the appellant was a 1st offender who should have been given another opportunity or at least received a lesser form of punishment.

The hospital and the board erred in failing to justify why they upheld the appellant’s dismissal on the 1st instance and why they failed to consider other sentencing options.

The respondents did not give reasons for dismissing the appellant contrary to Section 68(2) of the Constitution.

In the result the appellant prayed that the appeal be allowed and that she be found not guilty and reinstated to her employment.

In response to the appeal the respondents maintained that:-

In limine grounds 2, 3 and 4 ad sentence are not proper appeal grounds as the complaint is about the process leading to the dismissal as such should have been challenged by review.

Appellant’s prayer is that she be declared innocent on account of the failure to give reasons for dismissal in contravention of S.I. 117/06 Section 45(2). The failure to give reasons need be determined on review so prayer is that grounds 2, 3 and 4 be struck off.

On the main merits respondents contend that the record is accurate and there is no motive for the whole committee to falsify or certify an inaccurate record.

Misconduct was proven on balance of probabilities notwithstanding who was or who was not invited to testify.

Appellant was not denied the right to use the criminal record. Respondent only refused on good cause to grant the postponement since appellant had been given ample time to prepare for her case to the extent that if she needed to bring the record of criminal proceedings she could have done so.

The lawyer walked out as borne out by the record of proceedings and only returned after the witness had finished testifying.

Proceedings were not flawed at all. Appellant was convicted after due process.

Appellant was charged for corruption and conduct inconsistent with her duties it being alleged that she administered 6 packs of blood without the doctor’s recommendation among other charges. The findings of the disciplinary committee are clear that the appellant was found guilty of conduct inconsistent with her duties.

Appellant committed serious misconduct so dismissal penalty was appropriate.

The imposition of a penalty was the discretion of the employer.

Aside the clean employment history dismissal was appropriate on account of the seriousness of the offence.

Reasons for the penalty are on record as concurred to by the board. In any event if appellant required reasons for the determination she could have requested for such. In the result the respondent concluded that the appeal is without merit and should be dismissed with costs.

It is also noteworthy that on the Heads of Argument the respondent also prayed that the appeal be struck off the roll for being bad at law as the relief sought is silent on the damages component in the event of the success of the appeal.

For completeness of record and for clarity of the same the court shall dispose of the points in limine first before dealing with the main merits.

Sentence

Under this head the appellant had put down the fact that she should have not been dismissed because she had a clean employment history and she was going beyond her call of duty to save life. In addition she emphasized that the penalizing committee had not detailed why it settled for dismissal as opposed to other lesser penalties. In reaction to these issue the respondent reasoned that these are review issues to be settled by way of review. It is settled that the process adopted to arrive at a decision can be impugned by review. See Labour Court rules 2017..

That granted it should however be observed that the question of penalty also speaks to the substance of whether one should lose their job or not. To that extent it is a permissible appeal issue that can be determined on appeals. It is therefore the Court’s view that the point in limine penalty is without foundation. The appeal grounds on penalty should thus be determined as they are.

Relief

It is settled that where reinstatement is prayed for it should be accompanied by an alternate prayer of damages See CIMAS v Nyandoro SC-6-16. The court however needs to emphasize the fact that at the end of the day the relief to be granted by the court is the order of the court meaning that the court can modify the relief sought to fit in what the law requires. The anomaly in the Court’s view is an anomaly that can be curable even by an amendment. See Mapondera v Freda Rebecca SC-81-22.

It is not an anomaly that calls for the dismissal of a matter in toto. In that light the point in limine lacking in merit is also dismissed.

Having dismissed all the points in limine attendant to the matter all that is left is for the Court to resolve the merits of the appeal before it. The law on appeals is settled. See Nyahondo v Hokonya and others 1997 (2) ZLR 457 (S). Each of the grounds is addressed below;

Ground 1

Under this ground the appellant contends that her guilty verdict was birthed by proceedings which were not recorded accordingly by the scribe.

The appellant goes on to state that areas which show that the recording was not accurate are for example when it is written that her lawyer walked out and when it is indicated that he was denied the chance to bring in evidence from the criminal court. The main misgiving about the issue of walking out is that in the absence of the appellant and her lawyer a witness one sister Chapotera was called in to give evidence of what transpired at the criminal court. It need be noted that all the complaints under this heading was to do with the process of how the guilt was birthed and not the guilt itself. To that extent they cannot resolve the issue of whether the appellant was guilty or not. Whether the lawyer and appellant walked out or were excused does not solve the issue of guilt or otherwise of the appellant. Further to that evidence from Chapotera shows that she did not say anything meaningful about the commission of the offence.

It is therefore patently clear that the guilt was not birthed by Chapotera’s evidence so whether it was gotten regularly or otherwise still does not assist in the resolution of the dispute. The ground therefore being without merit should fail.

Ground 2

This is a technical repetition of ground one. The only difference is that on this ground appellant flexes out the issue about Chapotera evidence fact that the complaints were not called to testify and fact that when Chapotera testified appellant and her lawyer were outside. As earlier stated these concerns speak to the process that led to guilty verdict so does not resolve the critical issue of appellant’s guilt or otherwise. It need be noted that the record states clearly that the

complaints were not called and the testimony they gave before the investigation committee is what was relied on.

Of particular note is the fact that at the investigation level appellant agreed that the complainants had alleged against her that she had demanded money from them and also that she paid back part of the money. She hastened to mention that her repayment was actuated by the need for the matter to be closed since she appreciated the hospital’s view that “the patient is always right.”

What is clear from the activities at investigation level is that the issue of money passing hands was discussed and that appellant denied it but conceded that she paid off for convenience sake.

That set up clearly speaks to the fact that the allegations as set out at the investigation level and as responded to by the appellant at that stage were settled. The only interrogation that was needed was for the umpire to decide whether it believed the story as stated by the complainants or as refuted by the appellant. It therefore become immaterial to want to have the complainants present again before the disciplinary committee as it was granted that the accusations were there and that appellant was refuting them. In any event if that failure to call them was an issue it still remained a procedural issue that cannot aid an appeal.

As regards the record at the criminal court proceedings such could not dictate the outcome of disciplinary proceedings or vice versa Whether or not the record of criminal proceedings were allowed that would not detract from the guilt or otherwise the appellant. As regards Chapotera evidence that has already been adequately addressed in appeal ground 1 above. It does not deserve restatement. In conclusion it is clear that ground 2 has no merit. It should also fail.

Ground 3

As regards the finding on the matter the disciplinary committee record sets out clearly why it concluded that appellant had committed the infraction complained above. That she had issues about how the verdict was birthed could not result in the vacation of the verdict or the penalty. There was therefore nothing remiss about the board accepting the conclusions arrived at by the committee. This ground therefore has no merit. It should also fail.

Ground 4

Of all the appeal grounds this is the only ground which the court needs to meaningfully engage with. The question which the court has to answer is whether there sufficient evidence on a balance of probability. See ZESA v Dera SC-79-98 which the court can say that appellant’s guilt was arrived at properly or not. To start off with is the issue of corruption or dishonesty where appellant was said to have received money for blood yet that was obtainable for free. In this regard the tone to that charge is set out by the investigation committee report which is on record and which was adopted by the disciplinary committee in its resolution of the matter.

It is clear from a reading of that report that the complainants told the investigation committee that they had given money for appellant to secure blood for their sick mother as according to her free blood was not there at the hospital. It was also established that what gave rise to the coming out in the open of the blood issue was that the complainants had been seen by one security officer Tigere wanting to pay money for X-rays. It is in the course of the discussion about the X-ray payments that Tigere told the complainants that blood was for free. Armed with that information complainants related to Tigere what had happened between them and appellant. Such resulted in Tigere handing the matter over to Mtuda for further investigations.

At the investigation committee level appellant repeated her innocent protest but conceded that she had paid back part of the money to avoid noise. She also quizzed the complainant about the sequence of events vis the payments etc which she said their testimonies were not in sync with each other. What flaws from the above events is the fact that appellant conceded that she did infuse blood on to Stella one of the complainants. She says she did so properly outside her normal working hours because she had a heart to save patients especially noting that she had lost her father at the same institution due to lack of proper nursing care. She stated as well that she had come to know the complainants through her workmate and that she was geared to assist with Stella’s wellness as much as she could. She reasons that she got surprised that the persons that she was helping her were now stabbing in the back. She says she cannot fathom how her angelic acts could

be translated to corruption or dishonesty. Therein lies the problem which this court and the lower adjudicating bodies were faced with.

If at all appellant acted innocently as she claims the average diligent person would expect that the benefactors of her benevolence would be all over to thank her and not to spite her. She fails to give any thread of evidence whatsoever of why tables should be turned against her. This did not require the complainants to even repeat their testimonies before the disciplinary authority.

It was granted there was a tug between the complainants and the appellant. The question is WHY? Appellant says she does not know but suggests that remotely it could be because of bad blood with guards as her sale of her wares. It is clear from the narration of the events that no meaningful role was played by the guards in the matter except to question the issue that payment for blood was made when it was obtainable for free and also when the matter was escalated to all the relevant levels for its resolution.

What is clear from all this is that the bad blood argument with the guards therefore fell on its face to that extent.

As regards the complainants it would be absurd that having had a life saver they turn against her for no reason. It need be noted that appellant says she had been requested to help them as she could and also that she bragged a good heart for patients. It would be folly to accept that the complainants would turn against their Florence Nightingale on the way. The only reasonable inference from all the facts is that appellant saw an opportunity to make money out of the desperate complainants and her luck ran out thanks to Tigere’s conversation with Stella’s children on the issue of X-rays. It is the court’s view that no arbiter acting on the same facts would have come to a conclusion different from the one arrived at by the disciplinary committee. The court is satisfied that the test for appeal has not been met in regard to the issue of blood money. The appeal can thus not succeed on that rung.

As regards conduct contrary to her duties appellant went at length to say there was no clear order from the doctor as to what she had to do vis the blood transfusion in an emergency which she say was at hand vis Stella’s health. The counsel quizzed the structures and etc as to how appellant had performed her duties. He concluded with his client that the institution was penalising a hardworking and proactive nurse who had helped to save Stella’s life.

What is pertinent to note in this regard is that even if it were to be accepted that the doctor’s notes were scanty clarification should have been sought to flesh them out or at least guidance from the appellant’s seniors should have been sought. In any event if it is concluded that the health system fell short the very corruption act concluded above is clearly conduct in conflict with one’s duties. Overally it is therefore clear that there was nothing in the exercise of the discretion by the lower tribunal that can be adjudged irrational. See Hama v NRZ 1996 (1)ZLR 664. The appeal ground being without merit should also fail.

Penalty

Under this head the appellant truncated the same complaint to come up with 4 complaints. The sum total of the 4 grounds on penalty is that the appellant is of the view that she should have received a lesser penalty if her guilt was well founded and that the committee should have explained why it settled on dismissal as opposed to other lesser penalties.

It is settled that penalty is in the discretion of the employer. See Nyawasha v Circle Cement SC-10-03 and Innscor v Chimoto SC-6-12.

It is the court’s view that no amount of explaining out the penalty would have assisted. Once the conduct went to the root of the contract dismissal could not be faulted. See Toyota vs Pasi SC-55-07. It is clear that there was no misdirection on the penalty meted that was meted out. The appeal on penalty therefore fail on those 4 grounds. In a nutshell all appeal grounds both on the verdict and on the penalty are without merit so the appeal should in its entirety fail

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Tafirei and Company – Appellant legal practitioners

Civil Division- Respondents legal practitioners