Moudster Chirimuuta v Hwedza Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/345/16
HELD AT HARARE 30 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/345/16

HELD AT HARARE 30 MARCH 2016				CASE NO LC/H/857/14

& 27 MAY 2016

In the matter between:

MOUDSTER CHIRIMUUTA				Appellant

And

HWEDZA RURAL DISTRICT COUNCIL			Respondent

Before The Honourable F C Maxwell, Judge

For Appellant		Mr B Pesanai (Legal Practitioner)

For Respondent	Mr C Chikore (Legal Practitioner)

MAXWELL, J:

This is an appeal against the decision of the Appeals Committee to uphold the decision of the Disciplinary Committee dismissing appellant from employment.  Appellant, who was employed by the respondent was charged and convicted of various acts of misconduct.  She was subsequently dismissed from employment.  She appealed against the dismissal but was not successful before the Appeals Committee.  She then appealed to this court.

Appellant’s grounds of appeal are mainly challenging factual issues.  Ground of appeal 1.1 and 1.2 were struck out as they challenged procedural issues that should be raised on review.  The remaining grounds of appeal are

The appellant’s conviction was wrongful to the extent that there was no evidence to support the level of charges which were being preferred against her.  This is in light of the fact that the same charges which were preferred against her according to the code of conduct were both minor and dismissible offences.   The offences needed to be qualified an exercise that was not done which resultantly makes the unqualified and unjustified conviction illegal and of no legal effect.

The disciplinary committee erred in convicting applicant for unsatisfactory work performance when she had a heavy work load which required four people as per audit findings that the department was understaffed, the charge for unsatisfactory work performance could not be sustained under those admitted circumstances.

The committee further misdirected itself by convicting applicant for delay in bringing revenue when applicant was on leave for the period in question on issue which the committee failed to rebut by way of the records which were in the respondent’s custody but rather chose to state that the same assertion was new evidence when the same was stated during hearing and respondent deliberately decided to ignore the same.

The disciplinary committee erred in convicting applicant for failure to maintain cash books when in actual fact she was maintaining 14 cash books as per procedure.

The committee erred in finding that the applicant falsified financial statements when she had no obligation to prepare monthly financial statements which was the duty of the E O Finance who have (sic) since been charged and convicted for failing in his duties.  The appellant’s job description did not involve preparation of financial statements.

Appellant prayed for her acquittal and reinstatement to her former position

without loss of benefits from the date of dismissal or alternatively payment of damages in lieu of reinstatement.

In response respondent stated that it applied its mind on every aspect during the hearing, that the committee did not err in any way and properly found the appellant guilty of all the various misdemeanours and such a finding should not be faltered.  Respondent prayed for the dismissal of the appeal with costs on a higher scale.

The first ground of appeal is improperly before this court and will not be considered.  A reading of the record of proceedings shows that the Appeals Committee did not make a finding on this fact.  Actually the grounds of appeal before the Appeals Committee determination on pages 12 to 15 of the record exclude the issue of evidence.  It would therefore be improper for this court to deal with an issue that was not decided a quo.  James Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04.

As stated above, appellant’s grounds of appeal are mainly challenging factual issues.  It is trite that an appellate court will not interfere with the discretion of the court a quo unless there has been a serious misdirection.  See Cosmo Cellular (Pvt) Ltd v PTC 2004 (2) ZLR 176.  The second ground of appeal faults the disciplinary committee for convicting appellant for unsatisfactory work performance when she had a heavy workload and the department was understaffed.  Appellant’s assertion is not supported by the record of proceedings.  The Appeals Committee stated that the salaries ledger for 2009 shows that there were 5 people in the department for the first half of the year and the number was reduced to 4 as from July 2009.  The committee further stated that the only time the department did not have a full establishment was from July to December 2009 when it was short by only one person.  The committee’s findings therefore cannot be faulted.

The third ground of appeal faults the committee for convicting appellant or the delay in bringing revenue when she was on leave for the period in question.  The Appeals Committee indicated that this was not raised during the initial hearing.  It went on to state that by January 2009 appellant had a negative accrual of 21.5 leave days in arrears and therefore she could not have been on leave.  Appellant has not demonstrated that the committee’s position is unreasonable.  Attached to heads of argument is a memo of extension of leave.  The memo does not say when the leave to be extended commenced.  In any event the committee was of the view that if she had been on leave during the period in question she should not have answered to the alleged charges that were laid against her for that period.  That view cannot be faulted.  The Appeals Committee considered a record of proceedings in which appellant responded to issues raised for a period which she alleged to have been on leave.  It would have been a different issue if she had simply responded to the allegations by stating that someone else should be answerable as she was on leave during the relevant period.  I therefore find no merit in this ground of appeal.

The fourth ground of appeal criticises the committee for convicting appellant for failure to maintain cash books when in actual fact she was maintaining 14 cash books as per procedure.  Appellant did not substantiate this ground of appeal.  It is simply repeated on paragraph 6 in her heads of argument.  The criticism of the Appeals Committee is not warranted.  The committee clearly stated that appellant failed to prove that the quality of her work was as per standard and only dwelt on the number of cash books she maintained.  I therefore find no merit in this ground of appeal.

The last ground of appeal criticises the Appeals Committee for finding that appellant falsified financial statements when she had no obligation to prepare monthly financial statements.  Appellant insists her job description did not involve the preparation of financial statements.  The record of proceedings indicates that she produced a job description that was different from the one in her council personal file.  In the findings by the Appeals Committee it is clearly stated that according to a signed job description in her file, preparing financial statements is one of her duties.  Appellant has not put in issue the fact that she signed a job description that was placed in her personal file.  The committee’s finding therefore cannot be faulted.

In the final analysis there is no merit in this appeal.  Accordingly the following order is appropriate;

The appeal be and is hereby dismissed with costs for lack of merit.

IEG Musimbe & Partners, appellant’s legal practitioners

C Mutsahuni Chikore & Partners, respondent’s legal practitioners